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 2u^^n^J<'(:
 
 PRINCIPLES 
 
 OF 
 
 CONVEYANCING; 
 
 Di:siGNED FOIl 
 
 THE USE OF STUDENTS: 
 
 WITH 
 
 AN INTRODUCTION 
 ON THE STUDY OF THAT BRANCH OF LAW. 
 
 pBL^r 
 
 BY CHARLES WATKINS, 
 
 OF TIIK MIDDLE TEMPLF,, E«Q., BARKISTER AT I-AW. 
 
 PART I WITH ANNOTATIONS BY 
 
 GEORGE MORLEY& RICHARD HOLMES COOTE, Esqrs. 
 
 HARRISTERS AT I,A\V. 
 PART II. WITH ANNOTATIONS BY 
 
 THOMAS COVENTRY, Esq. 
 
 BARRISTER AT EAW. 
 
 ^inti) etittioii, 
 
 REVISKD AND CONSIDERABLY ENLARGED BY 
 
 HENRY HOPLEY WHITE, Esq., 
 
 BARRISTER AT LAW, OP THE MIDDLK Ti=:Mri.E. 
 
 LONDON: 
 WILLIAM BENNING & CO., LAW BOOKSELLERS, 
 
 (late SADNDERS and BENNING,) 
 
 43, FLEET STREET. 
 
 1845. 
 
 ^H'^X^/^^-
 
 1^4-5 ■ 
 
 c 
 
 LONDON: 
 PRINTED BY RAYNER AND HODGES, 
 
 109, Fetter Lane, Fleet Street.
 
 THE 
 
 EDITORS PREFACE 
 
 TO THE 
 
 NINTH EDITION. 
 
 Numerous alterations and additions* have been 
 made in the text and notes of the present Edition, 
 to keep pace with the important changes, both in 
 principle and practice, which judicial opinion and 
 legislative enactments have effected, in the law of 
 real property, since that of 1838. More than two 
 hundred references have been added and some 
 Chapters nearly remodeled. 
 
 The observations occurring: throughout the 
 Work upon the provisionsof the recent Statute of 
 the 7th and 8th Vict. c. 76, are offered with the 
 
 * These are carefully noticed by brackets in this as in the 
 preceding Edition. 
 
 ■^<]\\^^
 
 VI PREFACE. 
 
 diffidence and distrust, which the Editor cannot 
 but feel, in expressing any opinion upon its con- 
 struction ; and he has abstained from noticing 
 many of the doubts which it has occasioned, in 
 the expectation that those doubts may soon be 
 removed by the Legislature. 
 
 The demand for the last Edition would seem to 
 justify the anticipation expressed on its publica- 
 tion ; and the present is dismissed with the hope 
 that the additional labour bestowed upon it may 
 further extend the usefulness of the work, not 
 only as a valuable compendium of the law of 
 real property for the Student, but as a book 
 of ready and convenient reference for the 
 Practitioner. 
 
 Lincoln's Inn, 
 Fehrnary, 1845.
 
 THE 
 
 EDITORS PREFACE 
 
 EIGHTH EDITION. 
 
 The numerous and important changes effected 
 in the law of real property since the last Edition 
 in the year 1831, have led to an entire revision 
 of this deservedly popular and useful Treatise. 
 The task of introducing into the valuable 
 annotations of former Editors, the corrections 
 which later decisions and legislative enactment 
 rendered indispensable, was felt to be not less 
 delicate than difficult. The kindness of ilie.ssrs. 
 
 b 2
 
 Vm PREFACE. 
 
 Morley and Coote, in reviewing the corrections 
 suggested in their notes,* has lessened the 
 responsibility, while it has much enhanced the 
 value of the labours of the present Editor, whose 
 best acknowledgments are due, for the alacrity 
 with which that service was rendered to himself, 
 and to the Profession. 
 
 The great length and varied character of the 
 annotations f of Mr. Coventry, entirely pre- 
 cluded the request of a similar favour from him ; 
 although his sanction to the alterations and 
 additions made in his portion of the work, 
 would have been very desirable. The Editor 
 has retained the notes, which he published 
 anonymously in his former Edition in 1831, 
 and has inserted many others, with three 
 additional chapters, on the Law of Inheritance, 
 on the Statutes of Distribution, and on the Law 
 
 * Those of 3Ir. Morley terminate at page 60, those of 
 Mr. Coote at page 126. 
 
 t Commencing at page 137, and terminating at 450, and 
 the statutes from page 469 to 505,
 
 PREFACE. 13C 
 
 of Executors and Administrators, as it more im- 
 mediately relates to the chattels real of a deceased 
 trustee. 
 
 The Editor is also responsible for the prin- 
 cipal part of the chapter on feme coverte ; in 
 which are discussed the leading distinctions, 
 that have lately engaged the attention of the 
 Courts of Equity, on the subjects of restraint 
 on alienation and separate use. On account 
 of the recent changes in the law, many altera- 
 tions, in the text of Mr. Watkins, have become 
 unavoidable ; particularly in the chapters on 
 Dower, Devise, Fines, and Recoveries : but those 
 alterations, as well as all others in this edition, 
 are carefully distinguished by brackets. Notices 
 of the statutes relating to the law of real property, 
 including those of the last session, have been 
 introduced. Much attention has been devoted 
 to the correction of the former references ; and 
 about two hundred additional authorities have 
 been cited. The Editor dismisses the volume 
 in the hope that he has increased the use-
 
 PREFACE. 
 
 fulness of a work, which, by the combined labours 
 of the learned author and his annotators, has 
 so long retained its reputation in the Profession, 
 as a valuable compendium of the law of real 
 property. 
 
 LincolrCs Inn., 
 February^ 1838.
 
 A 
 
 TABLE OF CONTENTS. 
 
 Page 
 Introduction by Mr. Watkins - xv 
 
 BOOK I. 
 
 OF ESTATES AND INTERESTS. 
 
 Ch. 
 
 I. 
 
 Of an Estate at tcill 
 
 1 
 
 
 
 The case of Mortgagor in possession 
 
 13 
 
 
 
 The case of Cestui que trust in possession 
 
 16 
 
 
 
 Entries under Contracts 
 
 20 
 
 
 
 Tenancy by Sufferance 
 
 23 
 
 Ch. 
 
 II. 
 
 Of a Term of years 
 
 29 
 
 
 
 Tenancy from year to year 
 
 ih. 
 
 
 
 Interesse Termini - ' - 
 
 35 
 
 
 
 Conditions in Leases 
 
 38 
 
 
 
 Terms attendant upon the Inheritance 
 
 47 
 
 Ch. 
 
 III. 
 
 Of an Estate of Freehold 
 
 61 
 
 Ch. 
 
 IV. 
 
 Of an Estate pour autre vie 
 
 67 
 
 
 
 Occupancy 
 
 70 
 
 Ch. 
 
 V. 
 
 Of an Estate for Life 
 
 80 
 
 Ch. 
 
 VI. 
 
 Of an Estate in Dower 
 
 85 
 
 
 
 Of Jointure 
 
 96 
 
 Ch. 
 
 VII. 
 
 Of an Estate by the Curtesy 
 
 Tenant in Tail after possibility of issue 
 
 104 
 
 
 
 extinct 
 
 106
 
 Xll CONTENTS. 
 
 Page 
 
 Ch. VIII. Of an Estate Tail - 108 
 
 Rule in Shelley's Case - 110 
 
 Warranty - - 122 
 
 Observations on the S Sf 4 W. 4, c. 74, in 
 
 reference to Estates Tail and Base Fees 127 
 
 Ch. IX. 
 
 Of ail Estate in Fee-simple 
 
 137 
 
 Ch. X. 
 
 Of an Estate in Parcenary 
 
 148 
 
 Ch. XI. 
 
 Of an Estate in Joint-tenancy 
 
 158 
 
 Ch. XII. 
 
 Of a Tenancy in Common 
 
 173 
 
 
 Of a Tenancy by Entireties 
 
 177 
 
 Ch. XIII. 
 
 Of a Remainder 
 
 179 
 
 
 Of Cross Remainders 
 
 199 
 
 Ch. XIV. 
 
 Of an Executory Devise 
 
 202 
 
 Ch. XV. 
 
 Of a Conditional Limitation 
 
 214 
 
 Ch. XVI. 
 
 Of a Reversion 
 
 217 
 
 Ch. XVII. 
 
 Of a Right 
 
 224 
 
 Ch. XVIII, 
 
 , Of a Possibility 
 
 228 
 
 Ch. XIX. 
 
 Of an Equity of Redemption, and herein of 
 
 
 
 Mortgages 
 
 231 
 
 Ch. XX. 
 
 Of Uses and Trusts 
 
 240 
 
 Ch. XXI, 
 
 Of Poivers - - - 
 
 268 
 
 Ch. XXII. 
 
 Of Rents 
 
 283 
 
 
 BOOK 11. 
 
 
 OF CONVEYANCES, AS THEY RELATE TO ESTATES. 
 
 
 Ch. I. 
 
 Of a Feoffment 
 
 295 
 
 Ch. II. 
 
 Of a Grant 
 
 302 
 
 Ch. III. 
 
 Of a Gift - ■ - 
 
 306 
 
 Ch. IV. 
 
 Of a Lease 
 
 312 
 
 Ch. V. 
 
 Of an Exchange 
 
 327 
 
 Ch. VI. 
 
 Of a Release 
 
 331 
 
 Ch. VII. 
 
 Of a Confirmation 
 
 336 
 
 Ch. VIII. 
 
 Of a Surrender 
 
 339
 
 
 CONTENTS. 
 
 Page 
 
 Ch. IX. 
 
 Of an Assignment 
 
 343 
 
 Ch. X. 
 
 Of a Defeasance 
 
 345 
 
 Ch. XI. 
 
 Of a Covenant to stand seised 
 
 347 
 
 Ch. XII. 
 
 Of a Bargain and Sale 
 
 355 
 
 Ch. XIII. 
 
 Of a Lease and Release 
 
 359 
 
 Ch. XIV. 
 
 Of a Devise 
 
 364 
 
 Ch. XV. 
 
 Of a Fine 
 
 388 
 
 Ch. XVI. 
 
 Of a Recovery - * 
 
 407 
 
 
 BOOK 111. 
 
 
 OF 
 
 CONVEYANCES WITH RESPECT TO PARTIES. 
 
 
 Ch. I. 
 
 Of an Infant 
 
 417 
 
 Ch. II. 
 
 Of Husband and Wife 
 
 426 
 
 Ch. III. 
 
 Of a Feme Covert 
 
 429 
 
 Ch. IV. 
 
 Of the King 
 
 445 
 
 Ch. V. 
 
 Of the Queen 
 
 447 
 
 Ch. VI. 
 
 Of Corporations 
 
 448 
 
 XIII 
 
 ADDITIONAL CHAPTERS. 
 
 On the Law of Inheritance - -' 451 
 
 On distribution of Intestates^ effects, under stat. 22 8f 23 
 
 Car. 2, c. 10. - - - 460 
 
 On the Law of Executors and Administrators, as it 
 
 respects chattels real of a deceased trustee 464 
 
 Of Statutes, as they relate to Conveyances - 469 
 
 Addenda .... 525 
 
 Table of Cases cited - - 527 
 
 Table of Statutes cited - - 539 
 
 Index to the principal Matters - 545
 
 ERRATA. 
 
 Page 112, margin, for Howard, read Haward. 
 
 213, note, line 10, for 1 §• 2 Vict. c. 26, read 1 §• 2 Vict. c. 26, s. 29. 
 
 281, margin, for Hale, read Hole v. Escott. 
 
 368, line 22, for Ongley, read Ougly. 
 
 423, note, line 1, for Harrey, read Harvey v. Ashley. 
 
 471, line 4, for 5, read 6 Edw. 
 
 518, line 25, for s. 2, read s. 3.
 
 INTRO D UCTION 
 
 juy 
 
 Mr. WATKINS. 
 
 All the Notes to this Introduction are by Mr. Watkins. 
 
 Among the many discouragements which attend 
 the study of the law, there is none more obvious, 
 or more generally complained of, than the want 
 of method and direction. 
 
 To take a young person from an university 
 or a school, where his mind has been occupied 
 with other pursuits, and to toss him headlong 
 into the practice of the law, wholly unprepared, 
 or with little preparation, for so arduous a study, 
 is in itself so absurd, that we can only wonder 
 at its occurrence.
 
 Xvi INTRODUCTION. 
 
 What must be the embarrassment of such 
 a person amid business of such nicety as to 
 call forth the full exertion of the veteran in 
 practice ? — It is folly to expect from the human 
 mind, what a moment's reflection would tell us 
 it would be impossible for the human mind to 
 perform. Conveyancing is not intuitive any 
 more than the mathematics. The mind cannot 
 5 draw conclusions without having been previously 
 
 furnished with premises. And however the in- 
 dividual may be prepossessed in favour of a pe- 
 culiar mode of study, they are, and, while the 
 human mind continues what it is, there must be, 
 general rules which ought to be attended to in 
 the acquiring of knowledge. 
 
 We must be sensible that we can act with 
 greater energy in proportion as our attention 
 is confined. That attention becomes weakened 
 as it becomes divided. We must analyze in 
 order to comprehend with accuracy. We must 
 understand the cause before we can embrace 
 its consequences. It should seem to follow, 
 therefore, that in law, as in other sciences, we 
 should begin with the first principles, and form
 
 INTRODUCTION. XVH 
 
 a genernl outline before we descend to rhe 
 minutice. 
 
 A general outline the mind can easily em- 
 brace, and the general principles of law it can 
 easily remember. When acquainted with a 
 whole, we may discern the symmetry of the 
 parts : but an insulated position will appear 
 arbitrary, and its connection will not be seen. 
 As difficulties arise, or new matter presents 
 itself, a general principle will afford us a rallying 
 point ; and we shall find ourselves possessed of 
 premises from which we may argue. 
 
 To a general outline, and to general princi- 
 ples, then, should the student be at first confined. 
 To rush into miscellaneous and unconnected 
 reading is to embarrass and distract the intel- 
 lect; is to weary the powers of the mind with 
 unnecessary, and with useless exertion. It is to 
 contradict the suggestions of common sense and 
 experience, and to violate the rules which nature 
 herself has imposed. 
 
 But, in direct defiance of principles so obvi-
 
 XVIU INTRODUCTION. 
 
 ously, how often do we see Coke upon Littleton^ 
 or a volume of Reports, put into the hands of a 
 young person on his entering upon the Profession! 
 From the miscellaneous nature of such writings, 
 an idea is often effaced as soon as it is formed. 
 The mind is hurried from subject to subject, 
 without being suffered to dwell sufficiently upon 
 any. Points of the greatest nicety, and learning 
 the most abstruse, are suddenly presented to the 
 view of a novice, which would perhaps puzzle 
 the most experienced lawyer. Deductions and 
 conclusions are given when the principles from 
 whence they flowed remain unexplained, and 
 even unknown, to the student. The observations 
 on Littleton by Lord Coke are wholly without 
 method. Such a chaos of incoherent observation 
 is by no means calculated for a regular perusal. 
 Our attention is frequently called from an anxious 
 consideration of a legal principle to a dissert- 
 ation on the, &c. of Littleton, to an account 
 of Sir William Hearle, or to a quotation from 
 Virgil or Horace. Indeed, the want of method 
 in most of this writer's works makes them 
 more proper for occasional consultation, than the 
 perusal of the student. His strange quaintness
 
 INTRODUCTION, XIX 
 
 and eccentricities may make one smile ; but they 
 divert the attention, and withdraw it from the 
 subject to which we wish it confined. 
 
 That the Commentary upon Littleton con- 
 tains a valuable fund of Common Law learning- 
 is certain : but the observations are thrown 
 together without order. Great as Lord Coke 
 may be, the prejudice in his favour may, per- 
 haps, be extravagant. His industry was astonish- 
 ing : but he seems to have possessed little of the 
 spirit of law : and whatever might have been his 
 legal learning, the frequent illiberality of his 
 sentiments cannot be sufficiently reprobated ;* 
 and the student ought to be cautioned against it. 
 
 * The manner in which he treated Sir Walter Raleigh 
 may be seen in the State Trials ; and will be an object of 
 execration while his name shall continue. 
 
 In Calvin's case (7 Rep. 17, a.) he says, "All infidels 
 (among whom he reckoned the Jetvs, 2 Inst. 507), are in 
 law perpetui inimici, perpetual enemies, for the law pre- 
 sumes not that they will be converted, that being remota 
 potentia (a remote possibility) ; for between them, as with 
 the devils whose subjects they be, and the Christian, there
 
 XX INTRODl'CTION. 
 
 A Volume of Reports must, from its very 
 nature, be full of unconnected matter ; and, con- 
 sequently be improper for early reading. The 
 report of particular cases may, indeed, be read 
 by the student with advantage : but they should 
 be cautiously pointed out for his perusal, and 
 carefully explained. 
 
 The number of reporters, and the manner 
 in which many cases are reported, are most 
 serious evils ; are evils which cannot be too 
 much lamented, nor sufficiently exposed. The 
 
 IS PERPETUAL HOSTILITY AND CAN BE NO PEACE." 
 
 The illiberality of Lord Coke with respect to the Jews has 
 been deservedly condemned and held up to detestation in 
 the case of Omychundw. Barker, which is reported in a very 
 superior manner by Atkyns (Vol. i., p. 11), and which cannot 
 be too strongly recommended to the Reader's perusal. The 
 argument of the Solicitor- General, Mr. Murray (afterwards 
 Lord Mansfield), is a masterpiece of its kind ; and those 
 of the Lord Chancellor {Hardwicke') and the three Chiefs 
 who assisted him {Lee and Willes, C. J. J., and Parker, 
 C. B.), were worthy of Christians, as the sentiments of Lord 
 Coke were disgraceful to him as a man, and much more so 
 as a professor of the Gospel.
 
 INTRODUCTION. XXI 
 
 contradictory statements of the same case, the 
 confounding the arguments, nay assertions of 
 the counsel, with the decisions of the Court, the 
 obiter, and extra-judicial sayings of the Judges, 
 with the grounds of the judgment, the observa- 
 tions of the reporter with the points of the case, 
 call aloud for the nicest and severest discrimi- 
 nation. 
 
 I believe it will be found on examination, 
 that an implicit submission to the assertions of 
 our predecessors, whatever stations those prede- 
 cessors might have filled, has been one of the 
 most certain sources of error. Perhaps there 
 is nothing which has so shackled the human 
 intellect, nothing which has so retarded the 
 progress of truth, nothing which has so greatly 
 promoted whatever is tyrannic, preposterous, or 
 absurd, nothing which has so much degraded 
 the species in the scale of being, as the implicit 
 submission to individual dicta. The blunders 
 of one age (and blunders have occurred in all 
 ages) cannot warrant the blunders of another. 
 What was once expedient may now, by reason 
 of a change of circumstances, be improper. To
 
 ^^^^ 1 NTKO.DTTCTION, 
 
 appeal to matters of fact, with respect to matters 
 of right, is, in itself, preposterous and absurd. 
 If we must be bound by former decisions, let 
 those decisions be given by the most unequivocal 
 authority. Let the statement of factvS, the deci- 
 sion of the Court, and the grounds and reasons 
 of that decision, be drawn up by a proper officer, 
 and signed by the Judges who preside. Let not 
 the crude notes of the dead be brought forward 
 to mislead the living. Let not the reputation of 
 those who have left us, and who are no longer 
 able to defend themselves, become the prey of the 
 sweepers of their closets. We should consider 
 that many who took notes in Court did not take 
 them with a view to publication : but that those 
 notes were frequently ushered into public merely 
 from the rapacity or avarice of those who sur- 
 vived. Compare Rolles Reports with his Abridg- 
 ment. Look at the undetermined cases in Dyer. 
 Consider how soon a quoted case becomes what 
 is called authority, and consider how soon au- 
 i thority shoulders out common sense. It would 
 not be difficult to point out many instances in 
 which the adherence to the reports of adjudged 
 cases has overthrown the acknowledged principles
 
 INTRODUCTION. XXllI 
 
 of the law of the land, and, in effect, repealed 
 the solemn acts of the legislative body.* If the 
 acts of the legislative body become incompatible 
 with the manners of the times, let us apply to 
 the legislative body for their alteration or repeal, 
 but let not the Judges become superior to the 
 legislative body. 
 
 " Ita lex scripta est, is the cry of many 
 a man who would be angry with another that 
 expressed a doubt whether he possessed ratio- 
 
 * The famous Habeas Corpus case, in 1627, was deter- 
 mined on the authority of precedents, directly in the teeth 
 of Magna Charta, and six other statutes. " Precedents 
 were read," says Selden ; " Acts of Parliament were passed 
 over." {Seld. Works, Vol. VI. p. 1956-58.) The sub- 
 stance of Sir Nicholas Hyde's curious apology for this 
 violation of the laws of his country, may be seen in 1 Rnshw. 
 Coll. 461. 
 
 In the celebrated Bewdley case, (which has been frequently 
 recognised as law !) the practice of the Court for seven years 
 was held superior to an Act of Parliament ! 1 P. Wms. 223. 
 2 Str. 755. 3 Burr. 1755. 
 
 See, as to the Statute of Uses, 1 Atk. 591, in Hopkins y. 
 Hopkins, 2 Bla. Comm. 335-36. Dougl. 774, he. 
 
 c2
 
 XXIV INTRODUCTION. 
 
 cination. About the time of passing the Sta- 
 tute of Uses, some wise man, in the plenitude 
 of legal learning, declared that there could 
 not be an use upon an use. This very wise 
 declaration, which must have surprised every 
 one who was not sufficiently learned to have 
 lost his common sense, was adopted, and is still 
 adopted ; and upon it (at least chiefly) has been 
 built the present system of uses and trusts. 
 Another, adopting just so much of an argument 
 as answered his purpose, and rejecting a con- 
 clusion which followed from the self-same pre- 
 mises, decreed that there should be no dower 
 of a trust ; and Chancellor after Chancellor sub- 
 mitted to this strange assertion, and followed 
 it in defiance of every thing rational. "We 
 are bound by precedent," say they ; but are we 
 not bound by principle also ? Can precedent 
 release us from a moral obligation ? 
 
 If reports of adjudged cases be frequently 
 found such as I have noticed, it surely will be 
 sufficient to advert to them, in order to guard the 
 student from relying upon them where the reason 
 of the decision is not apparent.
 
 introduction. xxv 
 
 When we argue from adjudged cases, 
 WE argue from conclusions already drawn, 
 
 AND NOT FROM PREMISES BY WHICH THOSE 
 conclusions must BE WARRANTED. ThE 
 
 MORE WE ARE REMOVED FROM THOSE PRE- 
 MISES, THE GREATER THE PROBABILITY OF 
 ERROR IN OUR CONCLUSIONS MUST NECESSARILY 
 BE. 
 
 But supposing that a person should be so 
 fortuniite as to be able to extract something 
 comprehensible out of printed contradiction, 
 yet other contradictions may make their appear- 
 ance in manuscript; and, overthrowing all his 
 hard earned knowledge, remind him once again 
 of the glorious uncertainty of the Law. Is the 
 law of England to depend upon the private note 
 of an individual, and to which an individual 
 can only have access? Is a Judge to say, — 
 '* Lo ! I have the law of England on this point 
 in my pocket. Here is a note of the case which 
 contains an exact statement of the whole facts, 
 and the decision of my Lord -4., or my Lord B., 
 upon them. He was a great, a very great man. 
 1 am bound by his decision. All you have been
 
 XXVI INTRODUCTION. 
 
 reading was erroneous. The printed books are 
 inaccurate. I cannot go into principle. The 
 point is settled by this case." — Under such 
 circumstances, who is to know when he is right, 
 or when he is wrong ? If conclusions from 
 unquestionable principles are to be overthrown 
 in the last stage of a suit by private memoranda, 
 who can hope to become acquainted with the 
 laws of England ? And who, that retains any 
 portion of rationality, would waste his time and 
 his talents in so fruitless an attempt ? Is a paper 
 evidencing the law of England to be buttoned 
 up in the side-pocket of a Judge, or to serve 
 for a mouse to sit upon in the dusty corner of a 
 private library ? If the law of England is to be 
 deduced from adjudged cases, let the reports of 
 those adjudged cases be certain, known, and 
 authenticated. What an idea must a foreigner 
 form of our laws, when he conceives them either 
 founded upon, or subject to be contradicted by, 
 nobody knows what ? 
 
 I acknowledge the utility of publishing the 
 solemn decisions of the Courts; but I say again, 
 let the reports of those decisions be faithfully
 
 INTRODUCTION. XXVIl 
 
 given and stamped with authority ; and let the 
 grounds of such decisions be rational and ap- 
 parent.* Let not the laws of England be picked 
 out, like diamonds from a dunghill, from among 
 such crude and incoherent, such unintelligible 
 and contradictory matter,! ^s now loads our 
 
 * It is but little consolation to say, on the trial of a cause, 
 " That case is not law," after it has misled half the king- 
 dom. 
 
 f " It seems to me," said Lord Commissioner Eyre, 
 " that those two cases \_Aeherley v. Vernon, and the Attor- 
 ney-General V. Dowing,'\ are in direct opposition to each 
 other: — but it seems [also] to me, upon the best consi- 
 deration, that the former case is so determined, and is of 
 such authority, that every thing must yield to it," 1 Ves. 
 Jun. 495. Barnes v. Crowe. 
 
 It would require some ingenuity to reconcile the cases of 
 Burnahy v. Griffin, (3 Ves. Jun. 266,) and Mores v. Huish, 
 (5 ibid, 692,) though determined by the same Chancellor. 
 In the former it was ruled that a feme covert, who was 
 entitled to rents and profits during her life for her separate 
 use, might make an equitable tenant to the praecipe ; but in 
 the latter it was held, that though the feme covert was so 
 entitled, and even though the rents and profits were 
 expressly given to the intent and purpose that they might
 
 XXVlll INTRODUCTION. 
 
 shelves. Let us seriously consider the evils 
 which must arise from suffering absurdity* to 
 
 " be solely at her own disposal" she could not charge them. 
 Which of these cases then is law ? If the latter, the 
 recovery which was supported in the former must be good 
 for nothing ; and if the former be law, the latter cannot well 
 be so. The feme covert must have had power to transfer or 
 charge her interest, or not had power to do so. — To say that 
 she had such power, and that she had not, would be a 
 contradiction in terms ; and it should seem, therefore, that 
 these cases are also contradictory. 
 
 * " The absurdity of Lord Lincoln's case is shocking." 
 *' However, it is now law," said Lord Mansfield, in the case 
 of Doe V. Pott, Dougl. 722. 
 
 A power was given to a person to appoint by writing under 
 seal ; and she made a will or codicil on stamped paper ; 
 and according to the report of the case of Sprange v. Bar- 
 nard, (2 Brown's C. C. 585,) it was held, at the Rolls, to 
 have been a good execution of the power : — " The stamp 
 being equivalent to a seal." But, surely, if the stamp can 
 be considered as a seal, it must be that of the Commissioners 
 for managing the stamp duties, or at least of Government, 
 and not of the person writing on the paper stamped. If I 
 sign a receipt for fifty shillings upon a stamped paper, will 
 the receipt be an ifistrument under seal ?
 
 INTRODUCTION. XXIX 
 
 be consecrated by use ; and wben established 
 as a precedent, to interfere with, and, perhaps, 
 to render nugatory, the undoubted principles of 
 our laws. 
 
 If the laws of England are to depend upon 
 the decision of a Judge, we should remember 
 that the decision of a Judge may overthrow 
 them. 
 
 However well acquainted a person may be 
 with adjudged cases, he will soon find cases occur 
 in practice with which those already decided will 
 not altogether accord. In such circumstances he 
 can only have recourse to principle. The neces- 
 sity of an acquaintance with principle, therefore, 
 is too apparent to be further insisted on. 
 
 Another class of writings which the student 
 should avoid, or, at least, read with extreme 
 caution, is that of detached arguments on cases 
 which have been adjudged. Arguments thus 
 published, when presented under the sanction of 
 general reputation, and crowded with a profusion 
 of legal reference, are too often calculated to
 
 \XX INTRODUCTION. 
 
 mislead. The student must not be satisfied with 
 assertion, or carried away by the name of an 
 author. If he cannot confront argument with 
 argument, and receive the necessary data on both 
 sides of the question, he should suspend his 
 judgment ; he must not decide upon ex parte 
 evidence. Besides, such arguments are, for the 
 most part, on points of much nicety, and which 
 seldom arise ; and he should defer the consider- 
 ation of such till he has made himself master of 
 principles more general, and of propositions 
 more obvious and evident. 
 
 When success has attended a peculiar mode 
 of study, it may be reasonable to suppose it to 
 be just, and warrantable to recommend it to 
 others. I would, therefore, advise the student 
 to begin with a general outline : he may fill it 
 up at his leisure, as he may find himself pre- 
 pared for the undertaking: to confine himself 
 at first strictly to principles ; and, when he 
 meets with technical terms, to be content with 
 a mere explanation, and not pursue the subject 
 of that term any further, as it will only with- 
 draw his attention from that which he meant to
 
 INTRODUCTION. ^^^^ 
 
 |)Mrsue. It is the great fault of our Law 
 Dictionaries, generally, that they partake too 
 much of the nature of Abridgments. But a 
 dictionary and an abridgment are very different 
 things, and ought to be kept apart. It is much 
 to be wished that a Law Dictionary might be 
 given which would comprehend merely the terms 
 of art, and those obsolete words which occur in 
 old legal or historical writers. 
 
 His general books may be FincNs Law ; 
 Blacksto7ie s Commentaries ; Wyrmes Eunomus ; 
 Hale s Common Law; Reeve 8 History; Sullivan s 
 Lectures ; Dalrymple on Feudal Property ; Lit- 
 tleton (without the Commentary) ; the Freehold 
 part of Gilbert's Tenures ; Select Notes to the 
 late Editions of Co. Litt. ; Touchstone ; and 
 Fonblanque on Equity, with Francis s Maxims. 
 
 Having gained a general view of the Law, 
 and being taught to divide his subject, he may 
 pursue it as far as his inclination may lead him. 
 He may go up to Puffendorf or Grotius., or down 
 to a volume of reports, or the fleeting publications 
 of the day.
 
 XXxii INTRODUCTION. 
 
 I recommeDd the Commentaries o^ Black- 
 stone as a general book. The intention of that 
 ingenious writer was to give a comprehensive 
 outline ; and when we consider the multiplicity 
 of doctrine which he embraced, the civil, the 
 criminal, the theoretical and practical branches 
 of the Law, we must confess the hand of a master. 
 But in the minutim he is frequently, very fre- 
 quently, inaccurate. He should, therefore, be 
 read with caution. The student in reading him 
 will often require explanation from him whose 
 duty it is to instruct. 
 
 Noy^s Maxims, in all the editions, are too 
 incorrect to be entrusted in the student's hands. 
 Perkins has too many queries ; though Perkins 
 may be gone through with advantage, if accom- 
 panied with oral explanation. 
 
 The following pages have been also found 
 to yield assistance to the student ; and they are 
 presented to the world in the hope that they 
 may be more extensively serviceable than they 
 could have been if confined to manuscript. The 
 mode of reading them was this; — The student,
 
 INTRODUCTION. XXXlll 
 
 after being acquainted with some general books, 
 as before recommended, read the work entirely 
 through, tliat he might form a view of the 
 whole. He then began again, and read chapter 
 by chapter; consulting the books, or portions of 
 books, referred to, hut confining himself strictly 
 to the subject of the chapter immediately before 
 him ; and the whole was accompanied with oral 
 explanation, whenever he felt himself at a loss. 
 He paused between the chapters when the con- 
 nection was not immediate, that there might be 
 no concussion of ideas, or that an idea formed on 
 one subject might as little as possible be effaced 
 by an idea on another. 
 
 The study of the laws of a country, and 
 especially the laws which have been accumu- 
 lating for many, many centuries, must necessarily 
 be attended with labour. But we should not 
 intimidate the student at the threshold with 
 unnecessary embarrassment. Much labour may 
 be prevented by method, and much disgust by a 
 favourable impression. 
 
 To prove that the profession of the law is 
 an honourable profession, we must show it to
 
 XXXIV INTRODUCTION. 
 
 be enlarged in its principles, and liberal in its 
 practice. To have gentlemen and men of genius 
 in the profession, we must show the profession to 
 be such as a gentleman aiul a man of genius may 
 pursue. 
 
 Law should be considered as a moral science, 
 as the rule of rational and accountable beings. 
 The profession of the law was instituted merely 
 for the furtherance of justice and the preservation 
 of right; — shall we pervert it, then, to the sup- 
 pression of what it was ordained to support ? 
 Shall we represent it as incompatible with any 
 thing that is liberal, or manly, or useful ? If the 
 profession can only be pursued by abandoning 
 the rigid dictates of moral rectitude, the nicer 
 feelings of humanity, or the exertion of the 
 nobler powers of the mind, it is a profession 
 which it would be criminal in man to pursue. 
 The conduct of some of its professors has, indeed, 
 subjected it to much contempt ; and from those 
 who must regard it with contempt, it is folly to 
 expect admiration : and the conduct of many 
 who profess themselves its friends, tends but 
 little to remove the odium it has shared.
 
 INTRODUCTION. XXXV 
 
 It is ridiculous to hear a person, who hoasts 
 that his profession is an lionorarij profession, 
 talking incessantly of his fees. It is ridiculouft 
 to hear a person, who, in a Court of justice, wil- 
 fully embarrasses a witness for the sake of gain- 
 ing his cause, right or wrong, call his profession 
 an honourable one. It is ridiculous to hear a 
 person talking of the honour of his profession, 
 who receives a sum of money for discovering a 
 loop-hole in a title merely to enable his em- 
 ployer to creep through, that he might rescind 
 a contract which he had entered into with his 
 eyes open, and which every principle of moral 
 rectitude will oblige him to perform. 
 
 We may talk as much as we please about the 
 honour of a profession of which a conduct like 
 this forms a part; but, while a conduct like this 
 forms a part of a profession, no man of common 
 honesty or of common sense can cease to regard 
 it with contempt. 
 
 But by showing that a conduct like this is 
 only the perversion of individuals, — that the 
 profession, so far from requiring it, is disgraced
 
 XXXVl INTRODUCTION. 
 
 by a conduct like this, — that it affords a field for 
 the exertion of the most transcendant abilities, 
 and the most benevolent inclinations, — that it is 
 compatible with whatever elevates or adorns the 
 character of man, — can we only hope that the 
 profession will own the Good and the Great. — 
 It is by such means only that it can retain its 
 wonted place in the scale of science, and be ren- 
 dered worthy of the human mind. 
 
 If the day be not yet come, the day is very 
 fast approaching, when knowledge shall be justly 
 appreciated ; when systematic pedantry shall no 
 more acquire the reputation of learning ; when 
 those literary pursuits, which encumber the 
 memory without calling forth the exertion of 
 intellect, or amending the heart, shall be de- 
 servedly reprobated ; when prejudice shall melt 
 away before the genial beams of investigation 
 and truth ; and when learning shall only be 
 esteemed as it becomes subservient to the 
 virtue, and, of consequence, to the happiness of 
 mankind.
 
 • 
 
 I'.VreiJXAl. LINK 
 
 
 MAIKU.NAI. LI.\I-:
 
 
 ?\ 
 
 rATKK.N.Vl. LINK 
 
 NLVTEU.NAI. LINK
 
 PRINCIPLES 
 
 OF 
 
 CONVEYANCING, 
 
 &c. See 
 
 BOOK I. 
 
 OF ESTATES AND INTERESTS, AS THEY RELATE 
 TO CONVEYANCES. 
 
 CHAP. I. 
 
 OF AN ESTATE AT WILL. 
 An Estate at Will Pis the lowest estate which 2 Black, com. 
 
 , P , . . ^ ch. 9, p. (145) 
 
 can arise by the agreement 01 the parties ; itj — (149.) 
 IS not bounded by dehnite limits with respect andtheCom- 
 to time ; but as it originated in mutual agree- AComyns'sDig. 
 
 ., , 1 ^, ' ^ 58. Tit.Est.H. 
 
 ment, so it depends upon the concurrence or ioFin.Ab.396. 
 
 420 
 
 both parties. As it depends upon the will of \RoUe'sAhridg. 
 both, [which it does by implication of law, even j cruise's Dig. 
 where it is expressed to be at the will of one t^sltg^Si. 
 only, Co. Litt. 55. a.] the dissent of either may 
 
 B
 
 ad calc. 
 
 5i OF AN ESTATE AT WILL. 
 
 [9 Mee. Sf Wei. determine it.* Such an estate or interest can- 
 
 643.] 
 
 not, consequently, be the subject of conveyance, 
 [and it must determine by the death of the 
 lessee, without conferring any title on his per- 
 • sonal representative to hold the land.] Could 
 the lessee (for he is not a termor, as a termor is 
 1 T. R. 382, co-relative with a term or definite event,) con- 
 vey the premises to another, he would determine 
 his own ivill to hold. He himself would be no 
 longer a tenant ; for he cannot be a tenant and 
 not a tenant at the same time : and by the trans- 
 fer he would part with his own interest. As the 
 tenancy is at will, it must, [as before mentioned,] 
 of consequence, be at the will of the lessor as 
 well as of the lessee. Now, if the transferree 
 [or the representative of the lessee] could become 
 a tenant, it would be independently of the will 
 of the lessor, and consequently he would not be 
 a tenant at his will, and consequently the estate 
 would not be a tenancy at will at all, as the will 
 must, in such cases, be reciprocal. Should the 
 lessee introduce a stranger into the tenancy 
 with the assent of the lessor, it would not be 
 a transfer of the lessees interest or estate, for 
 his interest or estate would be, by the very act, 
 determined; but a new estate at will would be 
 created, since the original lessee would relinquish 
 
 * And any conveyance by the lessor of the property held 
 at will, is evidence of his dissent, and operates as a de- 
 termination of the will. Disdale v. Hes, 2 Lev. 88. Daniels 
 V. Davison, 16 Ves. 252.
 
 OF AN ESTATE AT WILL. 3 
 
 or abdicate his interest, or estate, and the stranger 
 would take an estate, by the immediate act of 
 the lessor, which had never been in the original 
 lessee. 
 
 But as it is reasonable that a person should b^m. Nisi Pri. 
 
 84. 
 
 reap what he has sown, and as the greatest 2 sir jr. Black. 
 
 part, it not the whole, ot the vear, is requisite 2 j?/. co»i. 147. 
 n ^, o • 1. " • -. ^y^tk. N. IV. 
 
 tor the purposes or agriculture in its present to aib. Ten. 
 
 state, the law does not favour [the raising by 
 
 construction alone of] an estate at will ; and, if 
 
 the rent be reserved yearly or half-yearly, it 
 
 frequently takes the circumstance as evidence of 
 
 a term ; i. e. of a lease for a year, or from year 
 
 to year.* Yet, as such a presumption is merely 
 
 * With regard to the purposes of agriculture, the tenancy 
 from year to year does not, in all cases, appear so favour- 
 able to the tenant as an estate at will. The doctrine of 
 emblements attached by the Common Law to the latter 
 estate, and to all other particular estates of uncertain dura- 
 tion, Co. Litt. 55. b., protects, in a great measure, the in- 
 terests of a lessee at will, so far as relates to the purposes 
 of husbandry ; and the determination of the estate, either 
 by the act of God, or of the lessor, does not deprive the 
 lessee, or his personal representatives, of the benefit of the 
 growing crop ; for the lessee is entitled to the crop where 
 he sows the land, aod his estate is afterwards determined by 
 the lessor, Litt. s. 68. And his personal representatives are 
 entitled to it, where the estate is determined by the death 
 of the lessee, Co. Litt. 55. b. And from the same prin- 
 ciple, it should seem that the lessee would be entitled to 
 the crop where the estate is determined by the death of the 
 lessor. On the other hand, if the lessee forfeits, or himself 
 
 B 2 ^' •^^-—-
 
 OF AN ESTATE AT WILL. 
 
 for the furtherance of justice, if such construc- 
 tion would, on the contrary, be productive of 
 wrong, such construction cannot take place ; ac- 
 cording to the maxim that a construction of law, 
 as such, shall do injury to none. As for instance, 
 if a lease from year to year would work a for- 
 feiture* there can be no reason for construing 
 such a demise a lease for a year rather than an 
 
 Bulwer V. Bui- determines his estate, he is not entitled to emblements, 
 
 wer, 2 Barn. 8c Z~, ^ . *^ • i /. i . i • /• i • 
 
 Aid. 470. ^^' J-itt. lb., as in the nrst case, his loss arises irom his own 
 
 wrong, and in the latter, it is his folly to determine his 
 estate before the crop is removed. Now a tenant from year 
 to year has not the same advantage if his tenancy expires 
 before the harvest, as he must quit at the expiration of the 
 
 ^^^ 
 
 i~/ly£j^j, »i<£:-iiL regular notice without any reference to the state of the crop. 
 j^ / J, With respect to the rent, as effected by the determination 
 ^ _ y of an estate at will, the principle is, that the act of the 
 lessee shall not prejudice the right of the lessor; the lessee, 
 therefore, cannot determine his estate at any time before the 
 rent is payable, without paying rent up to the next day it 
 would become due ; but if the lessor determine the estate 
 before the rent is due, he shall lose the rent. Leigliton v. 
 Theed, 2 Salk. 413, and Title v. Grevett, 2 Ld. Raymond, 
 1008, And probably the lessor, or his representatives, 
 would be held entitled to rent, iu all cases where the lessee, 
 or his personal representatives actually receive the emble- 
 ments, except in the case where the right to receive them 
 arose from the determination of the estate by the act of the 
 lessor, 
 
 * It is clear from the modern case of Fenny v. Child, 
 2 Mau. 4' Sel. 255, that the Courts of law will not raise a 
 constructive tenancy where it shall work a forfeiture ; and, 
 therefore, a lease from year to year would not be raised by 
 implication alone, where it would have that operation.
 
 OF AN ESTATE AT WILL. 
 
 estate at will. And much less can we be war- 
 ranted in construing- that to be a \e-d?>e fr'om year 
 to year which a positive Act of Parliament has 
 declared to be an estate at will. 
 
 But, though it is enacted by the Statute of 
 Frauds, ("29 Cha. II. c. 3, s. 1.) that a lease by 
 parol, for a longer term than three years, shall 
 have the force and effect of an estate at will 
 only, it is proper to inform the student that there 
 are cases in which a lease by parol for a longer 
 term than three years has been deemed to create 
 a tenancy from year to year, (.J T. R. 471. 
 Doe d. Rigge v. Bell. 8 Ibid. 3. Clayton v. 
 Blakey,) and, consequently, as not having " the 
 force and effect of an estate at will only,'''' 
 
 In Clayton v. Blakey,* Lord Kenyon is made 
 to say : — " The meaning of the statute was, that 
 *' such an agreement should not operate as a term. 
 " But what was then considered as a tenancy at 
 *' will has since been properly construed to enure 
 " as a tenancy from year to year." Now% what Sec the next 
 
 r /. T chapter. 
 
 is a tenancy jrom year to year but a term ? In 
 Doe d. Higge v. Bell, his Lordship expressly 
 
 * The reporters of this case seem to have entered com- 
 pletely into the spirit of it ; for it is said, in the margin of 
 the report, " Though by the Statute of Frauds it is enacted, 
 that all leases by parol, for more than three years, shall have 
 the effect of estates at will only, such a lease enures as a 
 tenancy from year to year.'' — Note by Mr. Watkins.
 
 OF AN ESTATE AT WILL. 
 
 held that the landlord could not determine the 
 tenancy till the end of the year. But, if the te- 
 nancy was not determinable till a definite period, 
 it is humbly apprehended that a term did exist, 
 " contrary to the statute in that case made and pro- 
 . vided, whatever may be decided to the contrary 
 tvA4-^ f i7>vw if- I Q^ ^j-j^l- statute in any wise notwithstanding. For 
 jM/j./i^/tf-o-oT^ [j. vvould be confounding of ideas, it would be 
 
 an abuse of language, it would be an insult to 
 common sense, to aflBrm that an estate of a de- 
 finite duration was not a term ; or that an estate 
 at will was independent on volition ; and the sta- 
 tute expressly declares that the estate in question 
 shall be an estate at will. 
 
 Now, as the statute expressly declares that 
 such a demise shall " have the force and effect 
 of a lease or estate at will only, and shall not, 
 either in law or equity, be deemed or taken to 
 have ANY OTHER, or greater force or effect, 
 any consideration for making such parol lease or 
 estate, or any former" (the statute could not, 
 from the very nature of the thing, provide against 
 any future) " lavv^ or usage to the contrary not- 
 withstanding ;" to assert, in an unqualified man- 
 ner, that that estate which the statute positively 
 declared shall be a?^ estate at will only, and 
 
 shall NOT, EITHER IN LAW OR EQUITY, BE DEEMED 
 OR TAKEN TO HAVE ANY OTHER OR GREATER 
 
 EFFECT, shall NOT be an estate at ivill only, but 
 SHALL be deemed and taken to have another and
 
 OF AN ESTATE AT WILL. 
 
 GREATER EFFECT, is certainly, very bold, if not, 
 as certainly, very wrong. 
 
 The truth, therefore, seems to be that [before [Section 4.] 
 the Stat. 7 & 8 Vict. c. 76,] where a j3erson leased 
 lands to another by parol, without expressing 
 the time for M'hich the lessee was to hold, the 
 law availed itself of the circumstances which 
 the demise presented in order to construe such a 
 lease, as creating a tenancy for a year, or from 
 year to year, rather than a tenancy at will : 
 but where a person leased lands to another by 
 parol for a longer space of time than three years 
 from the making of such lease, the statute inter- 
 fered by declaring it an estate at will. 
 
 The Courts may, certainly, give a reasonable 
 construction to the agreement of individuals ; 
 but the Courts have not, nor can they have, 
 without making the executive superior to the 
 legislative power, any authority to repeal or con- 
 tradict a positive Act of Parliament. If an Act 
 of Parliament be absurd or impolitic, or incon- 
 sistent with the manners of the times, let it be ,.,, ^,;^,, ., 
 repealed or altered by the powers by which it ^^^^ Jt^. 
 was enacted ; but, till it be so repealed or altered, ■ . / ,» / 
 it should be obeyed, if not contrary to the laws ^ y 
 
 * These observations of Mr. Watkins on the limits within ' .^ ■ ft~ e^J^^ 
 •which the Courts of hiw should confine their decisions, pro- , J—^ ~~. 
 
 ceed from that jealousy which every person, who wishes to ^ ^
 
 OF AN ESTATE AT WILL. 
 
 Litt. sect. 460. But a lessee at will, though he cannot transfer 
 
 Co. Litt.210.h. . , . . 1 1 r* 
 
 his own interest, is capable ot accepting a re- 
 
 preserve the constitution of this country, must feel when he 
 sees any branch of it assuming powers that encroach on the 
 functions allotted to another. For it is useless to confine 
 the powers of making laws to a legislative body, if the 
 Courts who are to carry them into execution assume a juris- 
 diction which renders those laws nugatory. But, at the 
 same time, we must not forget, that a great part of the law 
 of England has arisen from the decisions of our Courts ; and 
 to the principles which have influenced the Courts in their 
 decisions, and which have afterwards derived authority from 
 those decisions, we have been indebted for many valuable 
 improvements. The condition of villeinage was, in fact, 
 abolished by the steady opposition of the Courts of law, and 
 their taking advantage of every circumstance which inge- 
 nuity could suggest to favour the manumission of the per- 
 sons subject to that degrading servitude. From the same 
 source probably the tenure of copyhold arose in the place 
 of one depending on the mere will of the lord. The free 
 circulation of landed property, by admitting a power of 
 , /^7\ barring entails, was derived from the same quarter. In 
 these instances, not to mention others, the Courts by a series 
 of decisions, founded on an enlightened policy, gradually 
 encroached on the established order of things, and ulti- 
 mately effected a great and beneficial alteration in the state 
 of society and property ; and these changes probably would 
 not have been made so early had they been attempted by an 
 application to the Legislature. The burthens of the feudal 
 system were also virtually got rid of before they were re- 
 moved by the legislative authority ; for, by the invention 
 of uses, and afterwards by the introduction of trusts, the 
 rigour of that system was so far alleviated that it existed 
 scarcely otherwise than in name when it was eventually 
 abolished. The history of our jurisprudence shows, there-
 
 OF AN ESTATE AT WILL. V 
 
 lease of the inheritance from his lessor, on such 
 lessee's entry into the premises : for he has a 
 
 fore, that our Courts have always exercised a power which 'Jf'i^ /w«^ Z^"*^ ^ 
 cannot be strictly reconciled with their authority, considering ij^^ ^/>*^>-^ *-e.t. 
 them as merely intrusted with the execution of the laws ; ' /^ ^ ^ Z~~/iC o 
 and HI the exercise oi this power, experience has shown, in - . , «,» y. 
 
 most cases, that the Courts have felt the influence of the '\ '" 
 progress of liberal principles earlier than the Legislature, par- 
 ticularly where the application of those principles concerned 
 only the mutual rights of individuals. In the present state 
 of society, the exertion of this power ought certainly to be 
 narrowly watched, and perhaps ought never to be admitted 
 in any question of constitutional law. For, with whatever 
 safeguards the judicial authority may be environed, to pre- 
 vent the influence of government from swaying its determi- 
 nations (and it is difficult in this view to form any system 
 more perfect than that established in this country), yet there 
 appears to be generally a bias in the judicial towards the 
 governing power ; and probably, on examination, many of 
 the changes which have been effected by the exertions of 
 the Courts of judicature may be traced to such a bias ; par- 
 ticularly in the destruction of villeinage, and the unfettering 
 of entails, they were perhaps influenced more by a desire of 
 weakening the power of the nobles, and rendering the au- 
 thority of the Crown predominant, than by any other motive. 
 It may therefore be a question, whether, notwithstanding the 
 benefits that have been derived from a contrary practice, the 
 Courts of law ought not to be strictly confined within the 
 boundaries of a power purely executive ? But, even in that 
 case, as they must be the expounders of the law, and as it is 
 difficult to frame any law which does not admit of great lati- 
 tude in its interpretation, they must still, to a certain extent, 
 exercise a discretion which, on many occasions, will appear 
 to trench on the Legislative authority. And it is always to
 
 10 OF AN ESTATE AT WILL. 
 
 notorious possession on entry, [and there is a 
 privity between him and the lessor,] and the 
 
 be kept in mind that the greater part of our law has been 
 formed in the Courts, without the interference of the Legis- 
 lature, by an application of the principles of the preceding 
 decisions, to the successive cases that arose, and that these 
 principles must be applied by the Courts in the expounding 
 of any positive law, where they are not absolutely abrogated 
 by, and repugnant to, its enactments. The Courts in raising 
 a constructive tenancy from year to year, instead of an estate 
 at will, in all cases where the acts of the parties, independently 
 of any actual agreement between them, would afford ground 
 for implying an agreement, that such a tenancy should exist, 
 appear to have been influenced chiefly, as Mr. Watkms has 
 stated in the text, by the consideration of the inconvenience 
 attached to a strict tenancy at will. When therefore they 
 had by their decisions, in cases where there was no immediate 
 reference to that part of the Statute of Frauds which relates 
 to parol leases, established the circumstances from which the 
 tenancy from year to year should be implied, the question 
 was, whether the principle which governed those cases could 
 be applied to the case of a parol lease which was void by that 
 statute ? and the Courts determined that they could. The 
 grounds of this determination appear to be, that the object 
 of the statute was principally to render invalid any parol 
 agreement for a lease for a longer term than three years ; 
 and as the constructive tenancy from year to year, arising 
 from the mere possession at an annual rent, was not then 
 established, the statute could only refer to a tenancy at will, 
 when it avoided the actual agreement between the parties : 
 but after the tenancy from year to year was raised by impli- 
 cation of law from the acts of the parties, the Courts did not 
 feel that they violated the intention of the statute in giving 
 the same effect to the possession and payment of rent by a
 
 OF AN ESTATE AT WILL. 11 
 
 reversion or inheritance may be released to such 
 an one.* 
 
 person who entered under a parol lease void by the statute, 
 which they would have done, had the same circumstances 
 occurred unconnected with such parol lease, and they there- 
 fore felt themselves bound by the prior decisions to put the 
 same construction upon those circumstances, as evidence to 
 infer an agreement for a tenancy from year to year, notwith- 
 standing the agreement between the parties, which in con- 
 sequence of the statute could not be taken into consideration. 
 They do not therefore give any effect to a parol lease which 
 the statute has rendered null, but merely presume, con- 
 sistently with their decisions in other cases, an agreement 
 for a dijfferent kind of tenancy, where the facts of the case 
 will warrant that construction. And it should seem that in 
 conformity with these principles they would construe a pos- 
 session taken under a parol lease void by the statute, as a 
 strict tenancy at will, where no act is done by the lessor, by 
 acceptance of rent, or otherwise, to raise by implication a 
 tenancy from year to year ; but where such acts take place 
 that tenancy will be implied. [4 Vo. Sf Coll. 399 ; 10 Mee. 
 ^' W. 494]. 
 
 * It appears that the acceptance by a lessee for years, of 
 an estate at will, in the land comprised in his lease would, Bernard v. 
 be a surrender in law of his term, Mellows v. Ma7j, Cro. ^^'"'"'' ^'"^"' 
 Eliz. 874, and 6 Com. Dig. 306. It is also to be observed .^j^^f^Ce*^ t^^ 
 that a remainder cannot be limited on an estate at will ; for ^ v oSju^^aGXjl. 
 by the limitation over, the will of the lessor is determined ; ', rl ^/t4<»r* <JiyvTj 
 and then the remainder cannot be good, as a remainder, for v^tlp*-v- J' 
 
 want of a particular estate ; and it carmot be good as an 
 estate in possession, because it was granted as a remainder, 
 5 Bae. Ah. 822, tit. remainder G.
 
 12 OF AN ESTATE AT WILL. 
 
 Since the Courts have favoured the constructive tenancy 
 from year to year, there are few instances now, in which 
 proper tenancies at will exists ; but that estate has by no 
 means been abolished, and will divhe first, where there is an 
 express letting at will, Richardson v. Langridge, 4 Taunt. 
 128. Secondly, where the raising a tenancy from year to 
 year by implication alone would make a forfeiture ; for there 
 the implication is stronger that the lessor did not mean to 
 commit an act which would forfeit his estate, than that he 
 intended to lease from year to year ; and because, as has 
 been observed in the text, a mere construction of law shall 
 not be allowed where it will work an injury. And thirdly, 
 where there is an entry with the consent of the legal owner 
 of the land, but no express agreement or conveyance which 
 will confer a legal interest, nor any payment of rent to raise 
 a constructive tenancy from year to year : the last branch 
 includes an entry under a deed of feoffment before livery of 
 seisin, Litt. s. 70 ; entries under other defective assurances ; 
 for distinction on which head see third resolution in Buckler's 
 case, 2 Co. 55, h. ; and also, it is presumed, entries under 
 contracts for leases, where rent has not been paid, or for the 
 purchase of estates, and the cases of a mortgagor and cestui 
 que trust, when in possession. 
 
 As to different relations which may legally subsist, be- 
 tween a mortgagor and cestui que trust in possession, and 
 the mortgagee and trustee, according to the circumstances 
 which may take place, and the possession of persons entering 
 under contracts for leases, or purchase, have not, as we are 
 aware of, been considered and brought into one point of view 
 in any of the books, and as the cases on these points are in 
 some degree contradictory, or at least obscure, it is thought 
 that a few observations on each separately in this place will 
 be useful to the student, though the discussion may lead 
 us in some measure beyond the immediate object of this 
 chapter.
 
 OF AN ESTATE AT WILL. 13 
 
 1 . The case of a mortgagor in possession. 
 
 The cases arc rather confused as to the character in which Observations 
 
 . ^ , • 1 J • 1 . on the estate of 
 
 a mortgagor in possession is to be considered ; in some he is ^ morto-aeor in 
 
 called tenant at will, in others tenant at sufferance, and in possession. 
 
 See Birch v. 
 
 some he is viewed in the light of a receiver. The point may Wright, l T.R. 
 
 not be of any material consequence, further than as it is im- (..^^^^^u a ^ 
 
 portant in all cases that a construction should be adopted con- below. 
 
 2 J. Sf W. 
 sistent with the general principles of law; and as the privity ]B3. 553, 
 
 which may exist between the mortgagee and a mortgagor in ^/^ Co-.^^-t ^^ "^** 
 possession, in consequence of a tenancy being considered as ^f^ i*-' /*-»«^ ^j'^^\^ 
 subsisting between them, may materially affect the operation --'- -.^p^cot.^, 
 
 of a conveyance from the former to the latter. 
 
 The following remarks are therefore intended as an 
 attempt to elucidate the different characters in which a mort- 
 gagor in possession may be considered : — First, Where the Argument in 
 mortgagor is himself the occupant, and there is an express Blacknmn'c 
 
 agreement that he shall continue in possession till default in <^ac. 659. 
 
 ^ , • , . 1 ■, Per Holt, in 
 
 payment of the mortgage money at a particular period ; he Smartle\. Wil- 
 
 may in the mean time be considered as a tenant to the „"!"*' V.f'^.'** 
 
 •' 245. Christo- 
 
 mortgagee, holding a legal interest of the nature of a term of pher v. Sparke, 
 years during such period. [This was decided by the case of 934. 
 Wilkinson v. Hall, 3 Bing. N. S. 508. There, lands were 
 mortgaged in fee redeemable, on payment of the principal 
 money and interest in June 1833 ; but it was provided that 
 if the interest were regularly paid, the principal should not 
 be called in until 1840. The mortgage deed contained the 
 usual clause, that, until default, the mortgagor should hold 
 the premises and receive the rents for his own use. The 
 Court of C. B. held that this amounted to a demise from the . / 
 mortgagee to the mortgagor until 1840. The premises were r'^^ 
 in the occupation of tenants holding by the quarter.] f 
 Secondly, If, where there is an agreement for possession by 
 the mortgagor till after default in payment, the money is not 
 paid, and the mortgagor being the occupant, continues in 
 possession after the time fixed for payment, without any new 
 agreement between him and the mortgagee, he may, until 
 payment of interest, be considered either as a tenant at
 
 14 OF AN ESTATE AT WILL. 
 
 sufferance to the mortgagee, [or be treated by him as a 
 
 trespasser, Doe v. Maisey, 8 Bar. S^ Cres. 767 ; and the 
 
 mortgagee having a power of entry and sale may eject the 
 
 mortgagor without notice to quit, or demand of possession, 
 
 Keech v. Hall, ^^^ V, Giles, 5 Bing. 421, Hitchman v. Walton, 2 Mees. Sf 
 
 1 Douff. 22. fVell. 409.] Thirdly, If there be no express agreement 
 
 - originally, as to the period of possession and the mortgagor,* 
 
 being the occupant, remain in possession with the consent of 
 
 the mortgagee, it should seem that in such case he ought to 
 
 Smartle v. Wil-\ be Considered strictly as _tenant at will. Fourthly, In the 
 
 387 and 1 Salh. letter case, the transfer of the mortgage by the mortgagee, 
 
 '^^^- without the concurrence of the mortsragor, would be a deter- 
 
 Thunder v. . , & & ' 
 
 Belcher, ^East, mination of the will, and the mortgagor would become tenant 
 at sufferance to the assignee, until payment of interest. 
 And wherever the mortgagor is to be considered as tenant at 
 will, the death either of the mortgagor or mortgagee deter- 
 mines the estate. In the case of the death of the latter, it is 
 apprehended the mortgagor becomes tenant at sufferance to 
 the representative of the mortgagee, until payment of interest; 
 Per Holt, in but in case of the death of the mortgagor, if his heir or 
 Hams I SalN. devisee enters, and holds, without any recognition of the 
 245. mortgagee's title, by payment of interest or any other act, an 
 
 adverse possession takes place. Fifthly, In all cases where 
 a tenancy at sufferance would exist between a mortgagee and 
 mortgagor, and also where even an adverse possession would 
 commence, as by the entry of the heir or devisee of the 
 Holland V. mortgagor, without the consent of the mortgagee, it is 
 
 Hatton, Carth. apprehended the payment of interest would be a recognition 
 Vin. Ah. 418. of the title of the mortgagee, and evidence of an agreement 
 P ■ ■ that the mortgagor or person deriving title from him should 
 
 hold at will, and a strict tenancy at will would then com- 
 Moss V. Gal- mence. Sixthly, Where the estate is in the occupation of 
 ^y^ore, 1 Doug, tenants, and the mortgagor is left merely in the receipt of 
 
 [* A mortgagor in possession and cesttii que trust are ex- 
 cepted from the operation of the 7th section of the stat, 
 34-4 W. 4, c. 27.]
 
 OF AN ESTATE AT WILL. 15 
 
 the rents, [there being no clause in the mortgage deed thfit 
 the mortgagor may hold and receive the rents until default, 
 as in Wilkinson v. Hall,'] it is apprehended no actual tenancy Ubi supra. 
 arises between him and the mortgagee, but he is to be con- 
 sidered merely as a receiver, without liability to account. 
 
 In all the instances before mentioned, where an actual 
 tenancy subsists between a mortgagor and a mortgagee, the 
 former according to the nature of his tenancy arising from 
 the several circumstances before mentioned, is placed in the 
 same relation to the mortgagee ; and it is apprehended with 
 the same privity, where a privity is by law attached to the 
 tenancy, as an indifferent person would be placed in and pos- 
 sess, under the like tenancy ; and though it would not be 
 advisable in practice to rely on the existence of such privity 
 as the foundation of a conveyance between the parties, yet it 
 is submitted that it may be fairly urged in support of a title 
 where circumstances require the aid of such an argument. It 
 is to be observed, however, that where a mortgagor is con- 
 sidered as tenant at will, there is this difference between him 
 and other tenants of that description. First, He is not en- 
 titled to emblements, because the right to emblements arises 
 from the equity recognised by law as subsisting between the 
 parties ; and the mortgage debt being a charge which the 
 mortgagor ought to pay, there is no equity for him as against 
 the mortgagee, that the emblements should not go in dis- 
 charge of the debt. Secondly, He may be ejected by the 
 mortgagee, without any previous determination of the will. 
 The reason for which seems also to depend upon the relative 
 situation of the parties ; for whilst he is in possession, he 
 receives the whole profits, without any compensation to the 
 mortgagee beyond the interest of the money secured, which 
 however cannot be considered in the nature of a rent. 
 
 In Birch v. Wright, 1 T. R. 382, the relation of the mort- Birch v. 
 gagor and mortgagee is very elaborately entered into by ^^^ ' ' 
 Mr. Justice Buller, who, in his judgment, argues that there 
 is no actual tenancy between them, when the mortgagor is in 
 possession. But an examination of the cases certainly shows
 
 16 OF AN ESTATE AT WILL. 
 
 Partridge v. that the Courts of law have considered a tenancy as subsisting 
 
 Bere, 5 Bar. §" , , . 
 
 Aid. 604. Hall where the circumstances allow of such a construction, and it 
 gg^ '"-^ees, lb. ]|g submitted that they cannot take into consideration the 
 equitable relation of the mortgagor and mortgagee, further 
 than in the points already noticed; their jurisdiction, with 
 regard to the possession of real property, and the title to it, 
 except in the case of actual fraud, being confined to the legal 
 estates and rights of individuals. 
 
 It may be observed here, that the Court of Chancery will, 
 by injunction, restrain a mortgagor in possession from com- 
 mitting waste. Per Lord Hardwicke in Farrant v, Lovel, 
 3 Atk. 723, which perfectly accords with the legal relations 
 in which we have considered him. 
 
 II. The case of cestui que trust in possession. 
 Observations In equity, the person beneficially interested, who is called 
 
 on the estate of, . . .it'i i />i 
 
 a cestui que ^he cestui quB trust, IS considered as the real owner oi the 
 
 trust in pos- estate, and the possession of the trustee is always considered 
 session. '■ "^ 
 
 as that of the cestui que trust ; but at law the trustee alone 
 
 must be considered as the tenant according to the quantity 
 of his estate ; so far even, that where his estate is in fee- 
 simple, it would be subject to escheat on failure of his heirs 
 [previously to the stat. 4 & 5 W. A, c. 23. But now by the 
 [See 7 §■ 8 Fi'c<. second section of that act, it is enacted, that where any 
 ' *■ ■ ' person seised of any land upon any trust, or by way of mort- 
 gage, dies without an heir, it shall be lawful for the Court of 
 Chancery to appoint a person to convey such land in the 
 manner provided by the stat. 11 G. A, and 1 W. 4, c. 60, 
 s. 3, in case such trustee or mortgagee had left an heir, and it 
 was not known who was such heir; and such conveyance shall 
 be as effectual as if there had been such heir. The third 
 section provides, that lands, vested in any trustee or mortgagee 
 shall not be subject to escheat or forfeiture by reason of their 
 attainder or conviction. The statute 1 & 2 Vict. c. 69, was 
 passed to amend the 1 W. 4, c. 60, and to extend its pro- 
 visions to the heir and devisee or other real representative of
 
 OF AN ESTATE AT WILL. 17 
 
 mortgagees not having been in possession or receipt of the 
 rents of the mortgaged estate, and to whose executor or 
 administrator the mortgage money shall have been or shall be 
 paid. By the 7 Sf 8 Vict. c. 76, s. 9, the executor or ad- 
 ministrator of a mortgagee is empowered on discharge of 
 the mortgage to convey the legal estate vested in the heir 
 
 or devisee or other assign of such heir or devisee.] The See 4 Bac. Ah 
 
 , . 1 f. 1 • • 1 . ,» , 198, and the 
 
 cestui que trust, thereiore, bemg m the possession of the cases of Smith 
 
 estate, with the consent, or even the mere acquiescence of I' F'J^^'''^^'^. 
 
 ^_ 3 Mod. 195. 
 
 the trustee, must be regarded as his tenant at will, in order Focus v. Salis- 
 
 to preserve a consistency between this case and the general 400!' prLman 
 
 principles of law. The following reasons may be given in \' ^'^''^i^y 
 
 support of this construction, and may assist the student in and 1 Lev. 270, 
 
 tracing the principles upon which a constructive tenancy at 2.nl^p\^fret v 
 
 will may be contended for in other instances, where a mere Windsor, 2 Ves. 
 
 ... . 481. 
 
 possession is taken with the consent or acquiescence of the 
 
 person entitled to give it. It may be urged, that in every 
 case where the bare possession is in one person, and the 
 immediate legal estate, either of a freehold nature, or for a 
 term of years, in another, such possession must legally be 
 considered, either as derived from the estate which the law 
 recognises as subsisting, or as adverse to it. If the possession 
 in the instance before us were to be considered as adverse, the 
 cestui que trust would be viewed as gaining the fee by disseisin 
 and the estate of the trustee would then be turned to a mere 
 right. This construction, however, would, in many instances, 
 defeat the object for which the trust was created, and would 
 often give the cestui que trust a greater estate at law then he 
 previously had in equity ; and it appears to be completely 
 excluded where the possession is acquired, or continued with 
 the concurrence or acquiescence of the trustee. Besides the 
 disseisin must, in this, as in any other case, be considered as 
 a wrong in a Court of law, notwithstanding the equity sub- 
 sisting between the parties ; and the Courts will not presume 
 a wrong where any principle can be raised to support the 
 possession as lawful, and much less against the manifest intent 
 of the parties. But to make the possession lawful, some 
 tenancy must be raised ; and the only one which can be 
 
 C
 
 18 OF AN ESTATE AT WILL. 
 
 resorted to is a tenancy at will. This preserves the interest 
 of the cestui que trust, and the estate of the trustee ; and 
 answers the intention of the parties without producing any 
 injury, further than the inconvenience which always attends 
 the placing of the legal estate in another person. 
 
 Regarding, therefore, the cestui que trust in possession as 
 tenant at will to the trustee, we have further to consider how 
 this tenancy is affected by the death of the parties : for if a 
 tenancy at will be raised, it must be attended with the conse- 
 quences attached to that tenancy as to its determination ; and 
 the death either of the trustee or the cestui que trust must 
 determine the estate at will subsisting between them. In the 
 case of the death of the former, a tenancy at sufferance may 
 either be considered as existing between the real or personal 
 representative of the trustee, according to the quantity of 
 his estate, and the cestui que trust or both in that case, and 
 in the instance of the death of the cestui que trust, a new 
 tenancy at will may be raised between the parties succeed- 
 ing to the title, or possession, on the ground of an implied 
 agreement between them, where no act is done to evidence 
 an intention of adverse possession. For though the Courts 
 may set their faces against raising a tenancy at will by con- 
 struction, where it produces inconvenience, there is no 
 reason why they should oppose such a construction where 
 it is beneficial, and preserves a uniformity with the general 
 principles of law. And in the latter instance, either a new 
 tenancy at will must be raised, or the possession must be 
 treated as adverse, to the injury in many cases of persons 
 interested under the trusts. It is apprehended that where 
 there is an actual recognition of the estate of the trustee, 
 a new tenancy at will must be raised ; but it is difficult to 
 say what acts are to be considered as recognising such 
 estate, there being no payment of rent, or interest, between 
 the parties, and probably no other act required at the time 
 which would imply a recognition. It seems, therefore, in 
 these instances more comformable to the intent of the parties, 
 and to the views of justice, to raise by implication a legal 
 tenancy between them, on the ground of an assumed recog-
 
 OF AN ESTATE AT WILL. 19 
 
 nition of title, unless there be some act which demonstrates 
 a contrary intention, rather than to require actual evidence 
 that the title was recognised, and possession taken or con- 
 tinued with the consent of the trustee, and, in the absence 
 of such proof, treating the possession as adverse. The 
 application of this principle may, however, require to be 
 admitted with some modification ; and there may be instances 
 in which it would not be proper to act upon it, as where a 
 legal estate, or particular trust estate, has been left outstand- 
 ing for a considerable length of time, without treating it as 
 existing in another person, and especially where the trust 
 was originally created for a particular purpose, which has 
 been satisfied. But it is apprehended that even in such cases, 
 the union of the legal and equitable title, or the title to the 
 possession, is rather to be founded on the presumption of a 
 conveyance of the legal estate, or surrender of the particular 
 trust estate, than on the ground of the acquisition of a seisin 
 adverse to it. 
 
 It is to be observed, that the above discussion applies only 
 to the case where the cestui que trust is the actual occupant 
 of the estate, and not the mere receiver of the rents. There 
 does not appear any reason why the receipt of rent alone 
 should give any greater right to a cestui que trust than any 
 other person ; and the receipt of rent will not, of itself, create 
 
 any tenancy, nor [did it, previously to the 3 «^ 4 JV. 4, c. 27, j^-^f ^ 533 
 
 s. 9,1 confer any right to, or divest any estate in, land. It -^^i a"d Com- 
 
 TTlOnt. 
 
 is further to be remarked, that, though the possession of the 
 trustee is always to be considered as that of the cestui que 
 trust, and that a possession cannot be raised in the former 
 adversely to the latter, so as to bar him in equity ; yet the 
 cestui que trust may, by acts clearly manifesting such an 
 intention, gain a legal possession adverse to his trustee ; and 
 such acts will operate in the same manner against the estate 
 of the trustee, and be attended with the same consequences 
 as if no equitable relation subsisted between the parties : in 
 such cases, therefore, there is no room for the application oi 
 the reasoning on which the above observations are founded. 
 
 c 2
 
 20 
 
 OF AN ESTATE AT WILL. 
 
 III. Entries under contracts for the purchase of estates, for 
 
 leases, S)-c. 
 
 Observations From the principles we have been discussing, it also seems 
 
 der^comract^"" *° foUow as a consequence, that an entry by a person under 
 
 for the pur- a contract for the purchase of an estate, or an agreement for 
 
 cbasG of GS- 
 
 tales, agree- a lease, with the consent of the vendor, or the person agreeing 
 
 ments for ^^ grant the lease, must raise a strict tenancy at will between 
 
 leases, &c. => _ •' 
 
 them. In this instance also the possession must, as we have 
 
 before observed, either be referred to some legal title, or be 
 
 held adverse ; and the latter it cannot be, where the entry 
 
 is with the consent of the person entitled to the possession : 
 
 on the other hand, the contract or agreement confers no 
 
 legal estate ; one must therefore be raised by construction 
 
 of law, from the acts of the parties ; and no other estate 
 
 than a tenancy at will can, it is apprehended, accord with 
 
 their situation : whilst there is nothing in such a situation, 
 
 or in the existence of any equitable right between them, 
 
 arising from their contract or agreement, inconsistent with 
 
 this estate, until either the contract or agreement is carried 
 
 into execution, or some legal foundation is laid, by payment 
 
 of rent, or other act, for implying another tenancy. 
 
 Eighty. Beard, 
 13 East, 210. 
 Doe V. Jackson, 
 1 Barn. §• Cress. 
 448. Doe v. 
 Sayer, 3 Camp. 
 8. 
 
 [Doe V. Rock, 
 6 Jurist, 266. 
 4 Man. §• G. 
 30. Car. §• M. 
 549.] 
 
 The case of Right v. Beard, 13 East, 210, has decided 
 that a person entering under a contract for the purchase of 
 an estate, with the consent of the vendor, cannot be ejected 
 without a demand of the possession, or the commission of 
 some wrongful act to determine his lawful possession ; but 
 he was not directly considered as holding at will. It is, 
 however, submitted, for the reason before stated, that he 
 must be considered in that character, and that his possession 
 cannot, on any other ground, draw to itself the consequences 
 which were in that case considered as legally attached to it. 
 
 [In Hoioard v. Shaw, 8 Mee. Sf W. 122, the Court of 
 Exchequer were of opinion that a person entering under a 
 contract for purchase was a tenant at will, both before and
 
 OF AN ESTATE AT WILL. 21 
 
 after the contract went off, but that he was liable to an action 
 for use and occupation, during the time he was in possession, 
 after the contract went off,] 
 
 With regard to an entry under an agreement for a lease, Hegan v. Juhn- 
 
 . . _, r»Tt i^n i_ *""> •^ Taunt. 
 
 the judgment m Hegan v. Johnson, 2 launt. 148, may be 143; and see 
 considered as at variance with the construction of a tenancy ^""* J'- ^^""- 
 
 •' ter, 5 Barn. §• 
 
 at will. The occupier had there been in possession three AM. 322. 
 
 t. 1 ». 1 ^.^^ ^ Doev. Laivder, 
 
 quarters of a year, under an agreement tor a lease, without j stark. 308. 
 
 payment of rent ; and the Court is reported to have held, 
 
 that he was not tenant from year to year ; and that if before 
 
 the end of the first year a lease were tendered to him, and 
 
 he refused to execute it, the lessor might eject him without 
 
 notice ; and that, when a person was so foolish as to enter 
 
 under an agreement for a lease, without a stipulation, that, 
 
 in case no lease was executed he should hold for one year 
 
 certain, the landlord might, if he did not execute, turn him 
 
 out without notice ; and that the effect was, that the lessor 
 
 could not distrain for the rent, he must bring his action. 
 
 This certainly was saying there was no tenancy at all existing 
 
 between them ; for if there were only a tenancy at will, the 
 
 landlord might distrain for the rent, and could not eject the Litt. s. 72. 
 
 occupier without a previous demand of possession, or, in 
 
 other words, a determination of the will by a notice to quit. 
 
 But it is submitted, that the latter point was not before 
 
 the Court, and that the opinion given on it is in direct 
 
 opposition to the later decision in Right v. Beard ; for where 
 
 the agreement on which the tenant is put into possession 
 
 confers no legal title, the nature of such agreement, whether 
 
 relating to the purchase of a fee, or the grant of a lease, is 
 
 immaterial, with reference to the legal construction which 
 
 is to be put upon the bare fact of possession being taken 
 
 with the consent of the person legally entitled to give it. 
 
 The determination, therefore, in Right v. Beard, must, it 
 
 is conceived, be considered as having settled that point. 
 
 As to the point immediately before the Court, in Hegan v. 
 
 Johnson, that of the distress, it was argued on the ground
 
 22 OF AN ESTATE AT WILL. 
 
 only of a tenancy from year to year, which the agreement 
 did not support, and there were no circumstances in the case 
 to raise it by implication ; but the existence of a tenancy at 
 will was neither mentioned in the argument, nor adverted to 
 by the Court, except so far as the judgment may be construed 
 as negativing such a tenancy. If, however, there was not a 
 tenancy at will, there was no tenancy at all ; and if the case 
 is to be considered as deciding that no tenancy existed, it 
 must be on the ground, either that a possession taken with 
 the consent of the person legally entitled to give it may be 
 adverse to the title of such person, or that a possession 
 which is not adverse, and is not that of a mere bailiff, in the 
 modern import of that word, may legally exist, without any 
 See Adam's tenancy between the occupier and the person giving pos- 
 Cham L Sr^T ^^^^'^^^' neither of which positions, it is submitted, can be 
 17. maintained, consistently with the English law of real pro- 
 
 perty, and the doctrine of tenure on which it is founded. 
 The case of Hegan v. Johnson, therefore, it is conceived, 
 cannot be received as an authority against a constructive 
 tenancy at will being raised on an entry with consent under 
 an agreement for a lease : and there appears nothing in the 
 circumstances connected with such an entry to make any 
 difference between it and other entries with consent, where 
 See Blunden no freehold is claimed, and no actual estate is granted which 
 Cur ^^302! Co ^^^^ always received the construction of tenancies at will. 
 
 Litt. 270, b. This, indeed, is the general principle which governs all the 
 and 4 Comvn's ... • , . , , . ■ 
 
 Biff. 58. particular instances we have been considering, and which 
 
 must, it is presumed, govern all cases where it can be 
 applied, whatever may be the peculiar circumstances of each 
 case to make it difiterent in other respects. It may also be 
 observed, that there does not appear any reason why the 
 Court should not in all cases raise by construction a tenancy 
 at will, from the mere fact of an entry with consent, so long 
 as there are no other circumstances to alter that construction, 
 notwithstanding the existence of any agreement between the 
 parties, connected with such entry, referring to the grant or 
 conveyance of a greater estate, in the same manner as they
 
 TENANCY BY SUFFERANCE. 23 
 
 have raised a constructive tenancy from year to year, from 
 
 the circumstance of the payment of an annual rent, where [6 Jurist, 976.] 
 
 the agreement of the parties has had a reference to a larger 
 
 estate. 
 
 [A person entering under an agreement signed by the 
 owner, undertaking to execute a lease, is tenant at will until 
 he pays rent, either for a year or some portion of time having 
 reference to a year ; after which he becomes tenant from 
 year to year. Braithwaite v. Hitchcock, 6 Jurist, 976, Exch., 
 see also Howard v. Shmo, 8 Mee. ^ W. 118 — 122, see the 
 Stat. 74-8 Vict. c. 76, s. 4.] 
 
 In forming a judgment on an estate at will, the student 
 should be careful not to confound that tenancy with the 
 tenancy from year to year, which has almost superseded it, 
 and which in many of the cases, and in many books, is im- 
 properly called a tenancy at will. The tenancy from year See a remark- 
 to year is, however, a distinct tenancy, partaking of the p^^A °^'*"^^ '" 
 nature of a term of years, with its own peculiar qualities stable, 3 Wih. 
 attached to it relating chiefly to the mode of determining it. See the next 
 An estate at will, where it actually subsists, is still governed ^^"^P'^'' "* 
 by the same principles as formerly : and where from par- 
 ticular circumstances a tenancy from year to year is raised 
 by construction of law, such estate, whatever the estate from 
 which it is raised may have been originally, can no longer 
 be called an estate at will without introducing a confusion of 
 terms. 
 
 TENANCY BY SUFFERANCE. 
 
 In the preceding observations we have had occasion to 2 Black. Com. 
 
 notice a tenant at sufferance : and a few remarks on the ^^' ^' P- '^^•, 
 
 Co. Litt. 57, b. 
 nature of that tenancy may be necessary, as 3Ir. Watkins has 4 Comyn'sDig.
 
 24 
 
 TENANCY BY SUFFERANCE. 
 
 66. Tit. Est. 
 
 10 Vin. Ab. 
 
 41 4—420. 
 
 1 Rolh's Ab. 
 
 861. 
 
 1 Cruise's Dig. 
 
 tit. ix. c. 2, 
 
 ed, 4. 
 
 Roe V. Ward, 
 1 H. Black. 97. 
 Doe V. Watts, 
 7 T. ii. 83. 
 Bishop V. 
 Howard, 
 2Barn.^Cress. 
 100. 
 
 Sykes d. Mur- 
 gatroyd and 
 Wilkes V. I 
 
 cited 1 r. i?. 
 161. 
 
 Co.Lz«.270,b. 
 
 Butler V. 
 Duckmaitton, 
 Cro.Jac. 169, 
 
 omitted any mention of it. A tenancy at sufferance is the 
 lowest estate which can subsist ; it arises where a person has 
 held by a lawful title, and continues the possession after his 
 title is determined, without either the agreement or disagree- 
 ment of the person then entitled to it. As where a tenant 
 at will continues in possession after the death of the lessor, 
 or a lessee for years holds over after the expiration of the 
 term, or a tenant for another man's life keeps possession 
 after the decease of the person for whose life he held, in all 
 these cases the tenant remaining in possession, without the 
 consent or dissent of the person entitled to enter, becomes 
 tenant at sufferance to the latter. This tenancy, therefore, 
 can arise only by construction of law, and cannot originate 
 in the agreement of the parties, the law presuming only that 
 the possession is continued by the permission of the person 
 entitled to it. If such person actually agree to the continu- 
 ance of the possession, a tenancy at will, or from year to 
 year, will arise between them, according to the nature of the 
 agreement ; and the payment of an annual rent, where there 
 are no circumstances attending the payment and receipt 
 of it to oppose such a construction, will also raise a con- 
 structive tenancy from year to year : but so long as the oc- 
 cupation is merely continued with the bare acquiescence, or 
 without the disagreement, of the person entitled to the pos- 
 session, a tenancy at sufferance subsists. It follows from this 
 statement, that there is not any privity between a tenant at 
 sufferance and the person entitled to the possession : and, 
 consequently, a release from the latter to the former will not 
 operate to enlarge his estate. [In Barry v. Goodman, 2 Mee. 
 Sf W. 768, an instrument in these terms : " I hereby certify 
 that I remain in the house A. belonging to W. G. on suffer- 
 ance only, and agree to give him immediate possession at 
 any time he may require," was holden not to amount to an 
 agreement for a tenancy, so as to require a stamp.] 
 
 Co. Litt. 57, b. This estate cannot, from the nature of it, be the subject of 
 
 Smartlev. Wit- . . , ,„ 
 
 Hams 3 Lev Conveyance or transmission, any more than an estate at will ;
 
 TENANCY BY SUFFERANCE. 25 
 
 while it subsists, the possession of the tenant is not adverse 387 ; but con- 
 
 • !! 11.1.1. sider Fishar v. 
 
 to the title of the person entitled to enter ; although such pj-osser, Cowp. 
 person may, if he chooses, consider it so. This may, per- 21^ ^''-f !,• 
 
 ^ J ^ ^ " ^ Ferrars, 2 Bos, 
 
 haps, be one reason why the law raised the tenancy, as §• Pul 542, and 
 particular estates may often determine, and the reversioner ^ '^Jm. I Aid. 
 remain ignorant that they have ceased ; and if in such cases -"^3. 
 the mere continuance of possession by the tenant were held 
 adverse, the reversioner might be barred of his remedy by 
 lapse of time, before he even knew of his right to enter. 
 The raising of a tenancy at sufferance prevents this ; and pre- 
 serves his right of entry, so long as the same tenant continues 
 in possession, and commits no wrongful act, inconsistent 
 with the admission or existence of the title of the reversioner. 
 The descent or conveyance of the reversion does not appear Smartle v. 
 to affect the tenancy ; but the entry of any person claiming g„„r^_ ' 
 title from the tenant, and without the consent of the rever- 
 sioner, in the event of the death of the tenant, or" in conse- 
 quence of his alienation, would be adverse, as they cannot 
 derive a lawful title from him. An attention to these points 
 may be important in many cases ; for instance, where a 
 tenant for life [before the statute 7^8 Vict. c. 76] attempted 
 to alien in fee by a conveyance which did not operate as a 
 forfeiture, as by lease and release, or bargain and sale, which 
 conveyances would only, in fact, pass his life estate : the 
 person, therefore, in possession under them at the death of 
 the tenant for life would become tenant at sufferance to the 
 reversioner, and adverse possession will commence only from 
 the commission of some wrongful act by the tenant, or from 
 the change of the tenant of the land, in consequence of death 
 or alienation. 
 
 In the case of the crown there is no tenancy at sufferance ; Co. Liu. 57, b. 
 and if the king's tenant holds over, he is an intruder : but, on 
 the other hand, there was not, at the common law, any limita- 
 tion to the claim of the crown ; and the rule nullum tempus Co. Litt. 41, b, 
 occurrit Regi preserved the title of the crown in all cases j^^/y^'^ r 
 prior to the statutes 21 Jac. 1, c. 2, and 9 Geo. 3, c. 16. 247.
 
 26 TENANCY BY SUFFERANCE. 
 
 Doe V. Perkins, It is perhaps necessary in this place to offer a few remarks 
 271. to the student on the case of Doe v. Perkitis, determined in 
 
 the Court of King's Bench, as bearing on the point when ad- 
 verse possession is to be considered as arising after a tenancy 
 at sufferance has taken place. The circumstances of the case 
 were, a tenant pour autre vie continued in possession six 
 years after the death of the person for whose life he held 
 without payment of rent, and then died ; on his decease, his 
 son entered, and continued in possession more than a year, 
 without payment of rent, or having any demanded of him ; 
 he then levied a fine, and afterwards remained in possession 
 some years without paying any rent ; an ejectment was then 
 brought against him by the person entitled to the reversion 
 on the death of the tenant for life, and the Court determined 
 that no actual entry was necessary on his part to avoid the 
 fine levied by the person in possession. The counsel who 
 argued the case appear, from the report, to have considered 
 the person in possession as tenant at sufferance ; or, at 
 furthest, the counsel for the defendant only urged the pos- 
 session as adverse on the ground of a descent being cast, a 
 point which certainly could not be maintained, for a descent 
 which confers an adverse possession must be from a person 
 whose possession was also adverse. But in this case the pos- 
 session of the father was clearly a tenancy at sufferance after 
 the decease of the person for whose life he held ; and, con- 
 sequently, not adverse to the title of the reversioner. The 
 Court also appears to have treated the possession of the son 
 as a tenancy at sufferance, and seemingly as a continuation 
 of the possesson of the father. This case, therefore, if it 
 is to be received as an authority, is directly opposed to the 
 proposition that the entry of a person without tlie consent of 
 the reversioner or the death of a tenant at sufferance is 
 Co. Liu. 57, b. adverse to the title of such reversioner. But it is with defer- 
 tois case, 2 euce submitted, that this decision, and the principles laid 
 
 Leon, 47, and Jqwu in all the law books as the foundation of a tenancy at 
 Berry and •' _ 
 
 Goodman's sutl'erauoe cannot stand together. It appears to be essential 
 case, ib. 147.
 
 TENANCY BY SUFFERANCE. 27 
 
 to the raising of a tenancy at sufferance that the person in 
 
 possession should have originally held by lawful title. And 
 
 it is clear that, as a tenant at sufferance has nothing but the 
 
 bare possession without any title, he has no estate which he 
 
 can convey, or which can descend. A person, therefore, 
 
 entering under his conveyance, or on his death, cannot be 
 
 considered as continuing the possession of such a tenant ; and 
 
 as the entry of such person is not by lawful title, he cannot 
 
 become tenant at sufferance on his own possession. Now the 
 
 entry of the son in the above case was either by lawful title 
 
 or wrongful ; if by title, it must have been derived either from 
 
 his father or the reversioner; but his father had no descendible 
 
 estate, and it is admitted that he entered without the agree- [-Doev. Thomp- 
 
 ment of the reversioner. Under such circumstances, it does per. fi56.] 
 
 not appear how this entry could be otherwise than by wrong, 
 
 and then he could not become a tenant at sufferance. 
 
 If, however, the possession of the son could not be treated 
 as a tenancy at sufferance, it is to he considered on what 
 other ground it could be placed to avoid the consequence of 
 its being adverse. On this point it is conceived, that every 
 possession which is continued for a length of time, and 
 accompanied with an actual perception of the profits, must, in 
 order to reconcile it with the title of the freeholder, be 
 referred to the existence of some tenancy, either by express 
 contract, or by construction of law, between the latter and 
 the person in possession ; and if such a tenancy cannot be 
 proved, the possession must, it is presumed, be considered as 
 adverse, unless we are to admit that, at the present day, 
 no possession can be acquired adversely to the freeholder. 
 It is true that entry alone will not create a disseisin or in- 
 trusion, it must be accompanied with some act which the 
 law construes as an ouster of the freeholder : such as claiming 
 or taking the profits contrary to his title : but where there 
 is an entry which is not congeable, and a clairaer or a taking 
 of profits, such entry is adverse. In the above case there 
 was an entry without any title, and the possession was held,
 
 28 TENANCY BY SUFFERANCE. 
 
 and the profits taken for years, without the recognition of 
 the title of any other person ; and the very levying of the 
 fine was, it is conceived in this instance, coupled with the 
 entry, a claimer of the freehold. Such a possession could 
 not be referred to any subsisting tenancy ; it was admitted 
 there was none by the agreement of the parties, and we have 
 shown that none could in such a case be raised by construc- 
 tion of law ; the entry and possession cannot, therefore, it 
 is apprehended, consistently with any recognised principles 
 of law, be considered in any other light than tortious and 
 adverse. And it is submitted that the case cannot be acted 
 upon as an authority against the proposition advanced in the 
 above observations, that an adverse possession will take place 
 on an entry and perception of profits by a person without 
 the consent of the reversioner after the death of a tenant at 
 sufferance.
 
 29 
 
 CHAP. II. 
 
 OF A TERM OF YEARS. 
 The next estate with respect to the duration 2Bi.Com.c.9, 
 
 f. . . , 1 • 1 1 1 1 • s. 1, pp. 140 — 
 
 ot interest, is that which the law denominates 145, and c. 20, 
 
 „ ,.. , . ,, .p. 31. Lilt.bA, 
 
 a term;* and it is so denominated because its c. 7, and the 
 duration is absolutely defined. The duration of 266, cA. h. 
 an estate at will is dependent upon the pleasure tiuTIase. ^' 
 of each party ; and an estate for life, in tail, or 45, tit.^ Est. '^ 
 in fee, is uncertain in its duration, as its con- ^^'' 
 
 * And every tenancy of a definite duration is a term, and of jy^g y. jjoe 
 the nature of a term of years, though for a less period than a ^^^'^"'"^ ^^''' 
 year, Litt. 67. And a tenancy from year to year, though Tenancy from 
 raised by construction of law, appears to partake of the same y^^^ ^° y^^^- 
 quality : it is transmissible to the personal representatives, 
 who are entitled to the same notice to quit as the original 
 lessee, Doe v. Porter, 3 T. R. 13, and per Lawrence, J. in Rex 
 V. Stone, 6 T. R. 298, and the Courts of Equity will fasten a 
 trust upon the interest which devolves to the personal repre- 
 sentatives, James v. Dean, 11 Ves. 383, and 15 lb. 236. It 
 is also assignable, where there is not any special agreement to 
 the contrary ; and an assignment of it is within the 3d sec- 
 tion of the Statute of Frauds, and must be in writing. Batting Thompson v. 
 V. Martin, 1 Camp. Ca. N. P. 317, as must also a surrender ^'^jj^"". 2 5<«»-* 
 of it for the same reason, Mollett v. Brayne, 2 Ih. 103, and 
 Doe V. Ridout, 5 Taunt. 519, but see Whitehead v. Clifford^ 
 lb. 518, except where it arises by act and operation of law ;
 
 30 OF A TERM OF YEARS. 
 
 10 vin. Ah tiiiuance is dependent upon an uncertain event : 
 
 319. 1 Rolles _ ' ... 
 
 ^ftr. 84G. that is, upon the death of the individual, or the 
 
 1 Cruise's Dig. 
 
 4th ed. 222. 
 
 as where another becomes tenant with the assent of both the 
 
 original lessor and lessee, Thomas v. Cook, 2 B. Sf A. 119, 
 
 Stone V. Whiting, 2 Star. 236. [Now by 7 4- 8 Vict. c. 76, 
 
 Doe V. Roe, a surrender in writing must be by deed, s. 4.1 And this 
 
 5 B.Sf A. 770. . „ ..,,,, , ^ . o^ 
 
 species 01 estate is not withm the late act 1 Geo. 4, c. 87, 
 
 as to holding over, unless the agreement to let be in writing. 
 An estate from year to year may be created either by the 
 parol or written agreement of the parties. The qualities 
 that distinguish it from proper terras for years, and from 
 [See 7 §• 8 estates at will, are, that it is now raised by construction of 
 "^ ' "' J" law alone, instead of an estate at will, in every instance 
 where a possession is taken with the consent of the legal 
 owner, and where an annual rent has been paid, but without 
 there having been any conveyance or agreement conferring 
 a legal interest ; and that, whether it arises from express 
 agreement, or by implication of law, it may, unless sur- 
 rendered or determined by a regular notice to quit, subsist 
 for an indefinite period, if the estate of the lessor will allow 
 of it, or for the whole term of his estate, where it is of a 
 limited duration, unaffected by the death either of the lessor 
 or lessee, or by a conveyance of their estate by either of 
 them. Birch v. Wright, 1 T. R. 380 ; and the assigns, or 
 real or personal representatives of the former, according to 
 the quantity of his estate, and the assignee, or personal 
 representatives of the latter, still continue the tenancy upon 
 the original terms, and subject to the same conditions which 
 the law, or the express agreement of the parties, has attached 
 to it. But it is liable at any time to be determined by a 
 notice to quit, from either party, which, where there is no 
 agreement, or where the agreement is silent on that point, 
 must be at least half a year's (and not merely six months') 
 notice, requiring from the tenant, or offering on his part, to 
 give up possession at the expiration of the year, computing
 
 OF A TKRM OF YEARS. 31 
 
 extinction or failure of lieirs, either special or 
 general. Hence, then, must a term, from its very 
 
 from the time when the tenancy commenced, Right v. Darby, Doe v. Dono- 
 1 T. R, 159. And a parol notice is sufficient, unless the Kemps.Der- 
 agreeraent requires it to be in writing, TperLord Elleiiborough, '"*"• "^ '*• ^'*^- 
 C. J., in Doe v. Crick, 5 Esp. N. P. C. 197 ; but for the 
 sake of evidence it is always advisable to give a written 
 notice. Where different parts of an estate are let from 
 different periods, without any agreement as to the time when 
 the whole is to be considered as let together, the commence- 
 ment of the year, with reference to the notice to quit, will 
 be computed from the entry on that part which is considered 
 as the substantial or principal object of the demise ; Doe v. 
 Spence, 6 East, 120, Doe v. Watkins, 7 R). 557, and which 
 is a fact for the determination of the jury, where it is 
 disputed, Doe v. Howard, 11 East, 498. In cases where the 
 commencement of the tenancy cannot be ascertained, a notice 
 served personally on the tenant, requiring him to quit at the 
 end of the year, regulated by the times of the payment of the 
 rent, will be prima facie evidence of the commencement of 
 the tenancy at such period, unless the tenant actually prove 
 the contrary, or object to the notice when served pn him, 
 Doe dem. of Leicester, and others, v. Biggs, 2 Taunt. 109, 
 Doe V. Forster, 13 East, 405, Doe v. Woombivell, 2 Camp. 
 N. P. 559, and Thomas v. Thomas, lb. 647. But if the 
 notice in such a case be not personally served on the tenant, 
 it will not of itself be received as sufficient evidence of the 
 commencement of the tenancy. Doe v. Forster, nbi sup., and 
 Doe v. Calvert, 2 Camp. N. P. 388. Where the tenant 
 informs his lessor of the time of the commencement of the 
 tenancy, he will be bound by a notice given by the lessor to 
 him according to his own statement, although such statement 
 was wrong unintentionally, Doe v. Lambly, 2 Esp. JV. P. 635. 
 And where the commencement of the tenancy is not known, 
 and the lessor cannot, from the objection of the tenant to the
 
 32 OF A TERM OF YEARS. 
 
 nature, have a certain beginning, or definite com- 
 mencement, and a certain or definite period be- 
 yond which it cannot last.* But though it be 
 
 notice, or any other cause, avail himself of the periods of the 
 payment of the rent as presumptive evidence of the com- 
 mencement of it, a notice from him requiring the tenant 
 to quit, at the expiration of the current year of the tenancy, 
 which shall expire next after the end of half a year from the 
 date of the notice, will be sufficient, Doe v. Btitler, 2 Esp. 
 N. P. 589. But it seems advisable in such a case to give the 
 notice on one of the quarter days on which the rent is pay- 
 able, and not to bring an ejectment before the expiration of 
 a year and a quarter from the date of the notice, in order to 
 be certain that the year of tenancy has expired. It is to 
 be observed that when a notice to quit has been given, the 
 acceptance by the lessor or his agent, of rent which accrues 
 due subsequently to the determination of the tenancy ac- 
 cording to the notice, will be a waiver of the notice, unless, 
 in the case of an agent, he was ignorant of the notice having 
 been given, and had no special authority to receive the 
 particular rent. Doe v, Calvert, ubi sup. As a tenant from 
 year to year has, after entry, a possession with a privity, he 
 is capable of receiving a release by way of enlargement of 
 estate from his lessor. 
 
 * The commencement of leases for years may be considered 
 either with regard to the time of the computation of the term, 
 or the commencement of the interest. The certainty of the 
 time of computation may be fixed by reference, either to the 
 time of the making of the lease, or to a past or future period, 
 or a past or future event ; and the event, if future, may be 
 contingent ; or such time may be referred to the nomination 
 of a third person, in which case it must be fixed in the lifetime 
 of the parties to the lease. When no time of computation is 
 referred to, or the time referred to is an impossible date, or 
 where a lease is made to begin from the end of a lease which
 
 OF A TEHM OF YEAHS. 33 
 
 essentiul to its very existence that there be a 
 time abiohitely prefixed beyond which it cannot 
 continue, yet it may be made subject to a condition 
 [depending on the dropping of any life or lives, 
 or on any other contingent event,] for its deter- 
 mination before the period prefixed : as for ninety- 
 nine years, if A. B. lives so long. Here, if ^. B. 
 die before the ninety-nine years expire, the term 
 shall cease : but though A. B. should survive the 
 ninety-nine years, the lease, on the expiration of 
 the ninety-nine years would be absolutely at 
 an end. 
 
 The grant of such an estate is usually entitled 
 a demise or lease ;* and the proper words of 
 
 is misrecited, the commencement will be computed from the 
 delivery of the lease. The commencement in interest, when 
 the time of computation is immediate, or from a past period, 
 may either begin immediately, or be postponed to take effect 
 at a future period, or on a future event, either absolute or 
 contingent; but when the time of computation is from a past 
 period, the commencement in interest cannot be retrospective 
 so as to take effect before the making of the lease. When 
 the time of computation is future, the commencement in 
 interest cannot of course take effect earlier ; but it may be 
 postponed beyond such period, and made to depend on a 
 collateral event, absolute or contingent. — On the subject 
 touched upon in this note, and the certainty requisite to 
 leases for years, see 4 Bac. Ab. tit. Leases (L), Shep. Touch. 
 272. 
 
 * The grantee is usually called the lessee, but sometimes 
 he is styled the termor. Litt. s. 60. [And if in writing it 
 must be by deed, 7 <^ 8 Vict. c. 76, s. 4.] 
 
 D
 
 34 OF A TERM OF YEARS. 
 
 creation are those of " demise, lease, and to 
 farm let ;" though it may be created by other 
 means, as by bargain and sale, though without 
 
 See the next enrolment.* An estate for years relates only 
 to the possessio7i, and does not affect the seisin 
 of the lands. It is what the law calls a chattel 
 interest, and is not an estate of freehold, though 
 it be for ten thousand years. Hence, if it be 
 wished that A. B. should enjoy certain premises 
 while he lives, it should be inquired into, whether 
 it be the intention of the parties that the estate of 
 :;' A. B. should have the properties of a freehold or 
 
 not. [It is not now a necessary qualification for a 
 member of Parliament that he should be seised 
 of a freehold estate, 1 & 2 Vict. c. 48.] If it be, 
 the estate may be limited to ^. _S. and his assigns 
 during his life ; if it be not, it should be limited 
 to A. B. and his assigns for a certain number of 
 years, if the said A. B. shall so long live. In 
 
 See the next the former case the freehold must be passed, [by 
 
 chapter. 
 
 a deed operating either at common law or by 
 virtue of the Statute of Uses.l 
 
 5 Co. 123, b. As this estate affects only the possession and 
 
 Saffyn's case. ... , 
 
 not the seisin, it may be made to commence in 
 futuro, as from Michaelmas day next.f But on 
 
 * The Stat. 27 Hen. 8, c. 6, is confined to those bargains, 
 and sales by which " an estate of inheritance of freehold " 
 is intended to pass. — Note by Mr. Watkins. 
 
 I But the time of commencement must not be beyond the 
 period allowed by the rules laid down to prevent perpetuities ;
 
 OF A TRRM OF YEARS, 35 
 
 the demise of a term, no estate is vested in the 
 lessee, it only gives him a right of entry ; and 
 till he actually enter, he has only an iuteresse 
 teimini. He cannot before entry receive a confir- 
 mation, (a) or release (b) from the lessor, nor can («) C'o. nu. 
 
 ' ^ ^ ^ \ ^ 296, b. 
 
 he surrender (c) his interest, except by a sur- (b)ib. 210, h. 
 
 ^ ^ . r ^ Touchst. 32 \. 
 
 render in law, as by accepting another lease (c) Co. Liu. 
 incompatible with the existence of the first.* 6 East, 86. 
 
 for the grant or limitation of a term of years to commence 
 after an indefinite failure of issue, without reference to a 
 subsisting estate tail, or at any other period, or on any other 
 event, which might tend to a perpetuity, would no doubt be 
 held bad. See Fear?ie's Cont. Rem. 6th ed. Appendix, No. 4 ; 
 ef vide Beard v. Westcott, 5 Barn. ^ Aid. 801. 1 Turn. S^ 
 Bus. 25. 
 
 * An interesse termini is merely an executory interest ; Interesse ler- 
 
 • 7711711 
 
 and the right to enter under it, except when depending on 
 an estate tail, cannot be barred or affected before the time 
 when an entry would be authorized by the lease, grant, or 
 limitation conferring the interest. When that period is 
 arrived, and the actual right to the possession is accrued, it 
 may be barred like any other right of entry : but although 
 it may then be barred, it cannot, until it is executed in 
 possession by the entry of the person entitled under it, be 
 divested so as to prevent it from being transferred to a 
 stranger. 4 Bac. Ah. tit. Leases, 195. Although such an 
 interest cannot before entry be enlarged by a release from 
 the lessor, on account of there being merely an interest and 
 no actual estate in the lessee ; yet a release to the lessee 
 before entry, from the lessor, of all right that he has in the 
 land, will, in respect of the privity between them, extinguish 
 the rent. Co. Litt. 270, b. : and the lessor may for the 
 same reason expressly release the rent to the lessee before 
 entry. Ih. 46, b. On the same principles it should seem 
 
 D 2
 
 36 OF A TERM OF YEARS. 
 
 Doc. §• Shid. I ^jj estate for years is assignable, unless there 
 
 •J7. Dial. 1, •' ^ ... 
 
 <^^- ^- be an express condition or provision in the lease 
 
 that a release to the lessor by the lessee before entry would 
 be held to extinguish his interesse termini : and it has been 
 decided that an assignment of it by him to the lessor will 
 have that operation. Salmon v. Swann, Cro. Jac. 619. 
 [But it will not merge in the freehold subsequently acquired. 
 Doe V. Walker, 5 i5. <$• C. 111.] 
 
 The student will notice that Mr. Watkins in the text 
 refers only to leases at the common law, intended to affect 
 the actual possession of the land, to which the observations 
 made by him must be confined, as they are not applicable 
 to terms in remainder, or to terms granted out of a vested 
 remainder, or a reversion, when such terms are vested 
 estates, and when they would entitle the termor to the 
 possession, if the particular estate were immediately to de- 
 termine ; for then, though they do not, during the con- 
 tinuance of the particular estate, give a right to the actual 
 possession, yet they are capable of enlargement by release, 
 of being surrendered, divested, &c. the same as if the termor 
 were in the possession of the land, &c. Co. Litt. 270 a, 
 and Mr. Butler's note, 227. The observations in the text 
 also do not apply to terras created by a bargain and sale for 
 a year, or for years, by a person seised of the freehold, or to 
 terms created, by way of limitation of use in any conveyance 
 to, or declaration of uses, whether such terms are intended 
 to take immediate effect or to give a future interest ; since, 
 in the first instance, those terms vest immediately, and, are 
 under the Statute of Uses, executed so as to become an actual 
 estate without entry, immediately on the execution of the 
 bargain and sale or other conveyance by which they were 
 created ; and in the latter instance, they are executed by 
 virtue of the same statute, and confer an actual estate 
 without entry, when the period arrives at which they are 
 intended to take effect in interest, unless a disseisin be
 
 OF A TERM OF YEARS. 
 
 to restrict the power of alienation which the law 
 
 previously committed. Such terms therefore, as soon as 
 they are executed, are capable of enlargement in point of 
 estate, of being surrendered, &c. without any entry by the 
 person entitled to them. The common conveyance by lease 
 and release derives its effect from these principles, the lease 
 being a bargain and sale for a year, and under the Statute of 
 Uses giving the bargainee an estate without the necessity of 
 entry by him, and the release operating to enlarge such 
 estate : [but the lease for a year is not now necessary, 
 7 S)- 8 Vict. c. 76, s. 2.] A mortgage for a term of years 
 also, when made to operate as a bargain and sale, which it 
 ought always to be, as well as a grant and demise, gives the 
 mortgagee on the same principle an actual estate, imme- 
 diately on the execution of the deed without entry ; but as 
 a grant, it would not, unless there was a particular estate in 
 existence : and as a demise, it would require entry to vest 
 the term as an estate, and before such entry would give 
 only an interesse termini. These last examples are connected 
 with the doctrine of uses treated of in a future chapter : but 
 it is important that the student should mark the distinction 
 between terms created by common law assurances, and those 
 created by assurances which take effect under the Statute of 
 Uses. It is apprehended also that terms created by a devise 
 in a will do not require entry to vest them as estates. The 
 devise of a freehold interest confers an actual estate on the 
 devisee before entry. Co. Lilt. Ill a. On the same grounds 
 the devise of a term must, it is presumed, have the same 
 operation ; and if so, terms created by devise may be en- 
 larged by release, surrendered, &c. without any previous 
 entry of the termor being necessary to give effect to such 
 release, surrender, &c. 
 
 It may be proper also in this place, to point out the 
 difference between reversionary leases, and leases or more 
 properly grants of the reversion. A lease granted to a 
 
 37
 
 38 OF A TERM OF YEARS. 
 
 Co Liit.A6,h. orives;* and such assie'iiment may be made even 
 
 Plowd. 423. n ' & J 
 
 Co.Liit.2io,h. before the lessee enter, as an interesse termini 
 
 On conditions 
 in leases. 
 [8Bar.8fCress. 
 308.] 
 
 Goodright v. 
 Davids, Cowp. 
 803. Green's 
 case, Cro. Eliz. 
 3. 
 
 Co. I,t«. 30 l,b. 
 
 Stranger, to commence after the determination of an existing 
 term in the same land, &c. would, now, it is apprehended, 
 be in all cases construed as a reversionary lease, and be 
 held to be a mere interesse termini till it was executed in 
 possession, by an entry after the determination of the prior 
 lease. But a grant to a stranger of an immediate term of 
 years in an estate already demised, is a grant of the reversion, 
 vested in point of estate on the execution of the grant, and 
 drawing after it the rents and services of the first lessee. Such 
 grants must be made by deed, and formerly required the at- 
 tornment of the first lessee to perfect them : but by the stat. 
 4 Ann. c. 16, s. 9, they are made effectual without attornment. 
 * On conditions in leases to prevent alienation, or for 
 any other purpose, it is to be observed that, where the con- 
 dition gives to the reversioner a right of re-entry on breach 
 of the condition, the term after the breach still subsists till 
 determined by his entry ; and if after he knows of the breach 
 he accepts of or distrains for rent, accrued due subsequently 
 to the breach, it will be held a dispensation with the forfeiture : 
 he may also by confirmation render the estate of the lessee 
 or his assignee again indefeasible. [^Lord Coke observes, 
 that there is a diversity in case of a lease for years, where the 
 condition is, that the lease shall cease and be void, and where 
 the condition is, that the lessor shall re-enter ; for in the 
 former case the lease is ipso facto void by the condition, and 
 no acceptance of the rent after can make it have continuance ; 
 but otherwise had the lease been voidable only, as in the 
 latter instance. Co. Lit. 215, a. But modern decisions have 
 adopted a more liberal construction of these conditions, in 
 leases, and have decided that, although the words of the 
 condition are that the lease shall be utterly void, yet, that it 
 shall be only voidable, and that the lessor, by acceptance of rent 
 after he is conusant of the breach, may waive the forfeiture.
 
 OF A TERM OF YEARS. 39 
 
 may be granted over. Or if a lease be made 
 to two^ one may release to the other before 
 entry. 
 
 Doe V. Banks, 4 Bar. 8f Aid. 401. Arnsby v. Woodivard, 
 6 Bar. 8f Cress. 519, 523, 2 Russ. 174.] With respect to 
 restrictions on alienation, the following points may be noticed. 
 It should seem that a general condition against alienation in 
 a lease to A. and his assigns would be void, being repugnant 
 to the grant : but if the lease were to A. only, and not to 
 him and his assigns ; such a condition would be good. Hob. 
 170. And a condition even in a lease which extends to 
 assigns, that the lessee shall not assign to a particular person, 
 or without previous consent, is good. A condition restraining 
 assignment only, will not prevent an under-lease, Crusoe v. 
 Bughj, 3 Wils. 234, & 2 Sir W. Blackst. 766 : but the terms 4 Camp. 77. 
 of conditions restraining alienation should be attentively con- ^ hw mis 60 
 sidered, in order to judge whether they are confined to as- 
 signment alone, or extended also to under-letting. See Roe 
 V. Harrison, 2 T. R. 425. Doe v. Worsley, 1 Camp. N. P. 
 Ca. 20, and Roe v. Sales, 1 Maul. 4- Sel. 297 ; and such 
 conditions will bind the personal representatives where they 
 are named. Roe v. Harrison, tibi sup. A condition, giving 
 a right of re-entry on assignment without consent, does not 
 prevent the lease from passing by, or entitle the lessor to 
 enter on the assignment made by the commissioners of a 
 bankrupt lessee. Goring v. Warner, 2 Eq. Ca. Ah. 100, 
 1 Cookers Bankrupt Laws, 5th ed. 294 ; nor does it bind the 
 assignees of the bankrupt, an assignment by whom is no 
 forfeiture. Doe v. Bevan, 3 Maul. Sf Sel. 353. Such a con- 
 dition is also not broken by an assignment by the sheriff 
 under an execution, unless such execution be fraudulent. 
 Doe V. Carter, 8 T. R. 57 and 300. The condition may 
 however be extended to give a right of re-entry, if the lessee 
 commit an act of bankruptcy; and the assignment of the 
 commissioners in such a case will not prevent the entry of
 
 40 
 
 OF A TERM OF YEARS. 
 
 And as a lessee may grant over liis whole 
 term, so he may make an under-lease of a part 
 
 Cooper V. 
 Uyat, 5 Mad. 
 490. 
 
 El vide 1 Swan, 
 
 481. 
 
 Doe V. David, 
 
 \Cr.,M.&j-Rus. 
 
 405. 
 
 Flood V. Fin- 
 liu/, 2 Bull Sf 
 Bca. 9. 
 
 Wentherall v. 
 Geering, 
 12 res. 505. 
 
 Sec also Fnjett 
 
 <■ J':tf'>->i/'' 
 1 E>p. :i<r.i. 
 
 Doe V. Eliins, 
 Ryan §• Moo. 
 29. 
 
 Infra, rli. De- 
 feasance. 
 
 the lessor. Roe v. Galliers, 2 T. R. 133. It seems also 
 that a condition giving a right of re-entry to the lessor, in 
 the event of the lessee becoming insolvent or committing 
 any act whereby the lease may be taken in execution, would 
 be good. Doe v. Carter, ubi sup. Conditions restraining 
 assignment or under -letting, appear to be entirely abrogated 
 where an assignment takes place by commissioners of bank- 
 rupt, or the sheriff under an execution, and the future 
 assignees are not bound by them ; and in the former case 
 the lessee himself becoming bankrupt, and coming in after- 
 wards as assignee, is by the stat. 49 Geo. 3, c. 121, s. 19, 
 discharged from a covenant restraining alienation. Doe v. 
 Smith, 5 Taunt. 795, and Doe v. Bevan, ubi sup. Such 
 conditions also, so far at least as respects the restraint on 
 alienation, are entirely got rid of, where consent has been 
 once given to an assignment ; and they do not in such case 
 extend to the assignee, although the license be confined to 
 authorize assignment to a particular individual only. Dum- 
 por's Ca. 4 Co. 119, and Brummelw. Macpherson, 14 Ves.J. 
 173. [And it should seem that, although the condition 
 for re-entry is gone, the covenant not to assign is still binding 
 on the lessee. 8 Bar. Sy Cress. 486.] But in order that 
 consent may entirely discharge the condition, the consent or 
 license must be given conformably to the terms of the condi- 
 tion ; and if it be required to be in writing, a parol license 
 will not prevent the future operation of the condition ; and a 
 dispensation with the forfeiture for a breach of the condition 
 does not take away the right of entry for a subsequent breach. 
 Roe v. Harrison, ubi supra. Macher v. The Foundling 
 Hospital, 1 Ves. Sf Bea. 191. and Doe v. Bliss, 4 Taunt. 735. 
 And as terms of years may be made voidable by a defeasance 
 made at any time after their creation, {Shep. Touch. 396, and 
 398,) that mode may be adopted to restrain future alienation
 
 OF A TERM OF YEARS. 41 
 
 of his interest. As if he have a term of ten 
 years, he may under-let for five ; and the distinc- Primer v. 
 
 •^ *' Edwards, 
 
 tion between an assignment and an under-lease ^ Boug.i87,n. 
 is, where the lessee parts with his whole interest, 
 and where not ; in the latter case it is an under- '^^ -c^ui^^a^ 
 
 lease, in tlie former an assignment*!^ In an as- ^j?^ o^-o^^yt^i^c^f^ . 
 signment the operative words are, "assigned, /. /^ Tfe;^ ^4,^ zzc 
 transferred, and set over ;" and in an under- ^^x /^ 'U<. .^vtr/^ 
 lease, the same words are used as in the original .'^ il ^A^o^^j^ ^ 
 lease. ^l ^^'^Cc^-^i^ ^^ 
 
 On the entry of the lessee, he may surrender TowhsWim, 
 
 •^ *' ch. 17. 
 
 without consent, where the original condition is discharged 
 by giving a license to assign ; and on the assignment a defea- 
 sance may be made to determine the estate on alienation by 
 the assignee, without the previous consent of the lessor. Such 
 defeasance must be made by deed, and must be with the con- 
 sent of all those who were parties to the creation of the estate, 
 or, it is presumed, in whom the respective estates and interests 
 of such parties are vested at the time of making the defeasance. 
 Shep. Touch, 396. 
 
 * [Although the assignment be made in the form of an under- 1 Doug. 187, ». 
 lease, Thorn v. TVoolcombe, 3 B. 4' Adol. 586.] But a i r. fi. 441. 
 departure with the whole term, by way of under-lease, would ^Ld.Raym.99. 
 probably be supported as such, when that construction would 
 save a forfeiture ; as in the case where the original lease has 
 a condition restraining assignment, but not under-letting ; and 
 also where the conveyance would be inoperative as an assign- 
 ment ; as, for instance, where the residue of the original term 
 is three years or less, and the grant of such residue, by way 
 of under-lease, is by parol, in which case, by the second section 
 of the Statute of Frauds (29 Car. 2, c. 3,) it would be good 
 as an under-lease, but, by the third section of that statute, 
 bad as an assignment. — See PouUney\. Holmes^ 1 Sir. 405.
 
 42 
 
 OF A TERM OF YEARS. 
 
 2 5/ Com 326 jq j^jg lessoi', either by a surrender in deed, or 
 
 Co. Litt. oil, b, "Z 
 
 338, on sect, in law ; fby Stat. 7 & 8 Vict. c. 76, s. 4, a 
 
 636, & Butl. ... 
 
 ^•(1)- surrender in writing must be by deed.] On a 
 
 surrender in deed, the operative words are, 
 " doth surrender, yield up, and for ever quit 
 claim ;" [but it is the general practice, and 
 is always proper to use also words of assignment, 
 in order that the term may pass by the deed, 
 should there be any thing to prevent its taking 
 effect as a surrender,] and to such surrender it is 
 advisable to make the lessor a party, and that he 
 execute the deed, that his assent may be apparent. 
 A surrender in law is, as before observed, the 
 acceptance of another lease incompatible with the 
 first. 
 
 Turner v. 
 Richardson, 
 7 East, 336. 
 
 Touchst. 301 
 
 But if a lessee for twenty years under-lease 
 for ten years, he cannot, by surrendering up his 
 original lease, destroy the under-lease for ten 
 years, as it would be manifestly unjust that he 
 should frustrate his own grants.* 
 
 * If, however, the original lease be rendered void, in con- 
 sequence of a breach of a condition annexed to such lease 
 by the parties to it, or if such lease be defeated by an entry 
 of the lessor on account of the breach of such a condition, 
 the under-lease will also be defeated, and will not prevent 
 the original lessor from recovering the estate ; otherwise the 
 original lessee might, by under-letting, deprive his lessor 
 of the benefit of the conditions on which he had demised the 
 estate. 
 
 [By the 7 4- 8 Vict. c. 76, s. 12^ it is provided, that the 
 remedies for the rent and covenants in a lease, shall not be 
 extinguished by tlu^ merger of the immediate reversion.]
 
 OF A TERM OF YEARS. 43 
 
 By the Statute of Frauds (29 Car. 2, c. 3,) no 
 such term (except it does not exceed three years 
 from the making of it, and whereon the rent 
 reserved shall amount to two-thirds at least, of 
 the full improved [annual] value of the thing 
 demised) shall be created, assierned, granted, or U ^^ f^^^t. 
 
 ^ . . . c. 76, .v. 4.] 
 
 surrendered, unless by deed or note in writing, 
 signed by the party, or his agent authorized by 
 writing, or by act or operation of law. x. 'h<s^i <^vuu^'~i!~< 
 
 An estate for years may be deoised, or limited Harg.n. (5.) 
 by way of trust, to one for life, — and after his 20, a. 
 
 d, ,1 ^ 7 . 7 7 • Fearncs Cont. 
 
 ecease to another ; or to a person and the heirs Rem. §• Exec. 
 
 of his body : and the person taking the preced- 401— Wl 
 
 ing limitation for years or life cannot defeat the 445^479/^* 
 
 limitation over; but the whole property in the « u. i828. 
 
 term will vest absolutely in the person who takes 
 
 under that limitation; which, if it were of free- SeeZ)oev. 
 
 ' . , Lyde, 1 T. R. 
 
 hold property, would give an estate tail, without ^ae. 
 
 Fearne, Cont. 
 
 any act done by him; and the limitations over izm. ethcd. 
 will be effectually defeated. 
 
 But no limitations are allowed of terms of ^- 429. 435, 
 years which would render them unalienable 
 beyond a life or lives in being, and twenty-one 
 years afterwards.* 
 
 * What Mr. Watkins has stated in the two last paragraphs Lyon v. Mit- 
 of the text is applicable to all personal property as well as ^^^^ ' q^^'^' 
 
 terms for years, and has in a great measure assimilated per- v. Twining, 
 
 1 . . p n I c c- ■^ 3 Meriv. 176. 
 
 sonal estate, tor all the purposes ot iamiiy arrangement, to 
 
 estates of inheritance in real property, since the former may 
 
 Y^,
 
 44 OF A TERM OF YEARS. 
 
 now, through the medium of trusts, or by way of executory 
 devise, be limited, or given in succession, nearly to the 
 same extent, where the duration of the estate or interest 
 will admit of it, as the latter. When terms for years, or 
 other personal estate, are bequeathed to a person for 
 life, with a limitation over, the person entitled under the 
 limitation over, takes by way of executory devise, see 1st 
 resolution in Manning's Ca., 8 Co. 95, and Fearne's Cont. 
 Rem. and Exec. Dev. 6th ed. 404. In the case of terms for 
 years, when not vested in trustees, the persons entitled for 
 life is at law considered as having the whole term vested in 
 him, Manning's Ca. iibisup., and Lampei's Ca. 10 Co. 46, b. ; 
 and during the continuance of the life interest, the person 
 entitled under the limitation over has only a possibility and 
 no actual estate. His interest may, however, be considered 
 as a legal right ; since, on the death of the quasi tenant for 
 life, it confers of itself a title of entry, without requiring to 
 be then clothed with any further legal property, and the 
 term then vests in him without further act. See Lampefs 
 Ca. ubi sup., Paramour v. Yardley, Plow. 539, and Adams 
 V. Pierce, 3 P. Wms. 12. He [could not, previously to the 
 7^8 Vict. c. 76,] during the life interest, transfer at law 
 his interest in remainder to another person ; but he might 
 devise it, and his assignment of it would be good in equity. 
 Fearne's Cont. Rem. and Exec. Dev. 548 ; [but it would 
 seem by the 5th section of the above statute, that he may 
 [ inits/iirc. V. assign his future interest in the lease at law, which, if it came 
 8 Jurist 7G ■ 1 "^^^^^^"^ ^^6 description of a chose in action, he could not do, 
 for by the above section, that is not made assignable at laiv.^ 
 He may also release it to the person entitled for life, Lampet's 
 Ca. ubi sup., and his grant of it to such person would, it seems, 
 operate to extinguish it, lb. 7th Quest. And he may during 
 the life interest release to the reversioner, Johnson v. 
 Trumper, Sir W. Jones, 389, and a surrender to the re- 
 versioner would now probably be held to operate as a release. 
 The assignment or grant also of the persons entitled for life, 
 and under the limitation over, to a third person, would pass
 
 OF A TERM OF YEARS. 45 
 
 the whole term absohxtely, and be held to operate as the 
 grant or assignment of the former, and a release or con- 
 firmation by the latter, Lampet's Ca. 10 Co. 49. 
 
 The proposition stated by Mr. Watkins, in the text, that 
 the whole property in the term will vest absolutely in any 
 person who is made quasi tenant in tail of such term, is to 
 be understood with the qualification, that there is no con- 
 dition attached to the limitation to determine it within the 
 limits mentioned by him in the last paragraph ; for a 
 limitation over in the event of the quasi tenant in tail, (being 
 a child of some person in being at the time of the settlement,) 
 dying under the age of twenty-one years without leaving 
 issue at his decease, would be good. And a proviso to that 
 effect is now always introduced in well drawn settlements, 
 comprising leaseholds, and in powers of sale and exchange, 
 where they include those estates in their object. Without 
 such a provision the leasehold estates would be withdrawn 
 from the settlement as soon as any quasi tenant in tail 
 became entitled to them, for such person could («) bequeath (n) Previously 
 them, after the age of fourteen years if a male, and after the *° ifi* 
 age of twelve years if a female ; and without any bequest 
 they would on the death of the quasi tenant in tail vest 
 absolutely in his or her personal representatives ; but, by 
 the provision, they are rendered inalienable, and follow the 
 limitations of the settlement, until some person who is quasi 
 tenant in tail attains the age of twenty-one years, when such 
 person would also have the power of barring an entail in 
 freehold property. 
 
 From this chapter the student will have observed that an Do^ v. Finch, 
 estate for years confers a title to the possession of the land, ^j^y^^'^Q ^'^°^' 
 as distinguished from and without disturbing or interfering 
 with the seisin or freehold. The estate, when intended 
 immediately to take effect in possession, or when the period 
 arrives at which it is intended to have such effect, entitles 
 the termor, during the subsistence of the term, to the pos- 
 session of the land, against the freeholder and all persons 
 claiming under him subsequently to the creation of the
 
 46 
 
 OF A TERM OF YEARS. 
 
 term ; and as we have already stated it cannot, when its 
 commencement is confined within proper limits, be barred 
 while it remains an interesse termini, except in the instances 
 that have been mentioned. But this possession of the termor 
 is in law considered as the possession of the freeholder : and 
 though the former should, from the nature and duration of 
 his estate, be entitled to the whole profits of the land, for 
 one thousand or any other number of years, without payment 
 of any rent to the freeholder, yet the title and seisin of the 
 latter still subsists, with the privileges which the law has 
 annexed to an estate of freehold, but subject to the qua- 
 lifications required by law, where any beneficial interest 
 must be connected with such estate, for the exercise of 
 any privilege by the freeholder as in the case of voting 
 for members of Parliament, &c. From these qualities arise 
 the practical use and importance of terms of years in the 
 modern system of conveyancing. They were originally in- 
 tended merely for the benefit of the occupant, by giving 
 him an interest not depending upon the will of the free- 
 holder, but at the same time not interfering with the relation 
 of the latter as tenant to the lord. And the interest being 
 then created for short periods only, and for the sole purpose 
 of husbandry, an occupation which, when the feudal system 
 was in full vigour, was not thought sufficiently honourable 
 to confer any dignity on those who followed it, the law then 
 afforded little protection to such a species of property. 
 When however the growth of commerce led men to consider 
 property, more with reference to its beneficial value, than 
 the dignity arising from the nature of the tenure, estates for 
 years soon received the same protection as other estates. 
 It was then discovered that, besides answering the purposes 
 of short leases, they might from the peculiar nature of them, 
 when extended in duration, be applied with advantage, for 
 inducing persons to improve estates by building or otherwise, 
 and also in mortgage transactions, and in the settlement and 
 complicated arrangement of real property, which became 
 necessary in the advancing state of civilization. Thus the
 
 OF A TERM OF YEARS. 
 
 47 
 
 creation of estates for long terms was introduced ; and 
 through them a facility was obtained for charging settled 
 estates and raising sums of money for any particular purpose, 
 without disturbing the successive limitations of the freehold 
 and inheritance ; which could not, in many cases, be other- 
 wise accomplished, except by the means of vesting the legal 
 estate in trustees. The creation of terms of years, in wills 
 and settlements, for raising money for payment of debts, or 
 any charge affecting the estate, for securing rent charges 
 and jointures, for raising portions for younger children, or 
 daughters, or any sum of money for the benefit of a person 
 having no estate, or only a particular estate, in the property, 
 are instances of the advantage with which they are applied 
 in this respect. 
 
 When long terms of years thus became in frequent use, Terms of years 
 
 1 j.i. J- ^ -u- ^ c attendant upon 
 
 an important consequence, beyond the immediate object ot the inheritance 
 
 their creation, that of makiner them in certain cases attendant Sutler's Notes 
 
 , ^ , . , . , to Co. Litt. 290. 
 
 upon the freehold and inheritance of the estates in which h. n. 249, s. 13. 
 
 they were raised, soon attached to them. It may be useful „ °" *^y "" 
 
 to the student to attempt an elucidation of the principles 3d cd. 228. 
 
 upon which this important branch of Conveyancing is founded, ^it. xii. c. 3. 
 
 It is peculiar to the system of real property established in this ®°- ^- 
 
 country, as it can only arise where there is a recognised dis- Pnrch. eh. 9, 
 
 s. 2, 9th ed. 
 
 tinction between the legal and equitable ownership of estates. 453' wiUo'vnh- 
 
 If Courts of law took cognizance of equitable interests, there ^y ^- f^Hiough- 
 
 .... hy,\T. R. 763. 
 
 would be no necessity for preserving a distinction between Judgment of 
 
 such interests, and the legal estate ; and, in fact, that distinc- ^'iJke in Hill 
 
 tion would then never have arisen, as the person beneficially ^- Adams, But- 
 ler's Notes to 
 entitled would have been regarded legally as the owner of the Co. Litt. 208. 
 
 estate ; and so soon as the object for which any particular '^/"iiwrfre/Z*" 
 
 estate was created or conveyance made, was satisfied, or had Maimdreil, 
 
 failed, the estate or conveyance would have been held to have & 1 lb. 246.' 
 
 been at an end. When therefore, in mortgages, the money 
 
 was paid, either at the time agreed upon or afterwards, or 
 
 when the sum to be raised under the trusts of any term of 
 
 years was discharged, or it became unnecessary to raise it, by 
 
 the failure of the object, the estate created for securing the
 
 48 OF A TERM OF V EARS, 
 
 money would have been considered as determined. The di- 
 vision however of interests into legal and equitable, which the 
 law of England recognises, and the separation in a great mea- 
 sure of the tribunals which take cognizance of such interests, 
 prevented this consequence from taking place as a general 
 rule. The Courts of law, confining themselves to legal in- 
 terests, and refusing to notice the mere equitable interest, con- 
 sider the estate created as still subsisting, unless a surrender or 
 t)oe V. Si/- conveyance of it be made. Or at most they, in some instances, 
 bourne, 7 T. R. ^fter a length of time, presume a surrender or conveyance to 
 have been made at the period when, according to the equitable 
 relation of the parties it ought to have been done, if there 
 Doe V. Scott, be no circumstances to rebut such presumption. But they 
 11 East, Al%. (jgygj. raise such presumption against facts of a contrary 
 nature. On these principles, when a term of years is created 
 for any purpose, such term is at law considered as a term in 
 gross, and severed from the inheritance, even after the 
 purposes for which it was created are completely satisfied, or 
 have failed, unless a condition was annexed to it on the 
 creation, that it should determine on the satisfaction or failure 
 of such purposes, and except in the cases where the cir- 
 cumstances afford ground for presuming the surrender of it. 
 The Courts of law will not enter into the equity of any par- 
 ties claiming against the termor, but consider him in right 
 of his estate as the person legally entitled to possession, 
 leaving the equitable interests, where they exist, to the 
 protection of the Courts of equity. 
 
 It may be proper, perhaps, to inform the student, that an 
 attempt was at one time made to break through these princi- 
 ples in some measure ; and the Courts of law began to allow 
 persons claiming a title to the freehold, to try their right in 
 ejectment, notwithstanding the existence of a prior term, 
 where such term was held in trust for the freeholder, or 
 where the party claiming the freehold submitted to claim 
 subject to the term. This, as the action of ejectment is 
 merely possessory, was in fact admitting the recognition of 
 equitable interests in Courts of law. See the cases of Lade
 
 OF A TERM OF YFAHS. 
 
 40 
 
 V, Holford, BuUer's Law of Ni Pr. ed. 177o, p. 1 10, Good- 
 right V. Sales, 2 Wils. 329, and Doe v. Pegge, 1 T. R. 758, 
 n. (a). But these cases have since been overruled. See 
 Doe V. Staple, 2 T. R. 696, where Lord Kenyon put the 
 case of Lade v. Holford, on the ground only of a presumed 
 surrender of the term, when of course it could no longer give 
 a title to the possession. See also Goodtitle v. Jones, 7 T. R. 
 43. Doe V, Wharton and Dixon, 8 T. R. 2, and Roe v. 
 Reade, lb. 122. In the last case, Lord Kenyon said, that if 
 it appears in a special verdict or case that the legal estate is 
 outstanding, the person not clothed with the legal estate 
 could not recover in a Court of law ; and that he could not 
 in that respect distinguish between the case of an ejectment 
 brought by a trustee against his cestui que trust, and one . 
 brought by any other person. And the doctrine established 
 by these latter cases has since been invariably followed. See 2 Bam. i,- Aid. 
 Doe V. Wroot, 5 East, 132, and Doe v. Scott, 11 East, 478. Sn^.^17.""'' ^ 
 The Courts of law have thus been brought back strictly to 
 the recognition of legal interests only; when, therefore, in a 
 possessory action, a term is shewn to be in existence, which 
 has a preference to the title of the claimant, the Courts of 
 law will not enter upon the discussion of such title. 
 
 But as in equity the freeholder, after the purposes for 
 which the term was created were satisfied or had failed, was 
 clearly entitled to have a surrender of the estate, those 
 Courts have always regarded the termor, after such period, 
 as a trustee only for the freeholder. And it soon became 
 necessary to settle how this beneficial interest of the free- 
 holder in the term was to be considered. The Courts of 
 equity follow the rules of law in their construction of 
 equitable interests ; and, consequently, the beneficial interest 
 in a term, where the person entitled to it has no higher in- 
 terest in the estate, is treated as a chattel interest only, and 
 is transmissible to the personal representatives, in the same 
 manner as the legal estate. In the case, however, in question, 
 it was evident that a distinction must be made : it was never 
 the wish of the owner of the fee to create a distinct chattel
 
 50 OF A TERM OF YEARS. 
 
 interest, first for a particular object, and afterwards for the 
 benefit of himself and his personal representatives, to the 
 exclusion of his heirs ; his intention was simply to raise the 
 term for a particular purpose. From a regard, therefore, to 
 this intention, and in order to preserve the higher and more 
 important interest which the freeholder had as owner of the 
 fee, which would have been materially infringed upon by 
 raising an equitable interest in him of a mere chattel nature 
 for a long duration, the Courts of equity held, that this 
 beneficial interest of the freeholder in a term whose pur- 
 poses had been answered, should be subordinate to and 
 merely attendant upon the higher estate of which he was 
 seised or possessed. In fact, though the term is, as we have 
 seen, kept distinct at law, yet in equity the beneficial in- 
 terest is considered as completely consolidated with the 
 freehold and inheritance, vested in the person entitled as 
 cestui que trust ; and therefore it follows the fee, in all the 
 various modifications and charges to which it may be sub- 
 jected by the acts of law or of the owner. The consequence 
 is that this equitable interest in the term is not treated as a 
 chattel : it will not be forfeited by the felony of the owner 
 of the fee; Attorney- Geiieral v. Sandys, 3 Cha. Rep. 19. 
 Hard. 488 ; it was [not previously to the late statute 
 3 & 4 Will. 4, c. 104,] liable to his simple contract debts, 
 Tiffin v. Tiffin, 1 Vern. 1 : but was together with the fee, 
 real assets. It does not as against the heirs, or devisees, of 
 the cestui que trust, or the assignees, in the case of bank- 
 ruptcy, prevent the attachment of the title of dower, or 
 curtesy, of the wife, or husband, of the person entitled as 
 cestui que trust, Wray v. Williams, Prec. in Chan. 151, and 
 1 P. Wms. 137 ; Lord Dudley v. Dudley, Prec. in Chan. 
 241 ; Snell v. Clay, 2 Vern. 324; and see 2 P. Wms. 707 ; 
 and Squire v. Compton, 9 Vin. Ab. 227, pi. 60 ; and if the 
 inheritance escheat, the term will go with it, Thruxton v. 
 Attorney- General, 1 Vern. 340. 
 
 When the Courts of equity had thus settled the nature of 
 the beneficial interest in terms attendant upon the inheritance,
 
 OF A TERM OF YRAHS. 
 
 the advantage of preserving them, and assigning them from 
 time to time, with an express declaration that they should 
 be so attendant, became apparent. For the actual assignment 
 and recognition of them, as subsisting, prevents the legal pre- 
 sumption of their having been surrendered ; and the free- 
 holder, through the medium of his trustee of the term, can 
 in many instances carry back his title to the possession for 
 a much longer period than he can shew a clear title to the 
 inheritance. And should his latter title be found defective, 
 or subject to any charge, yet his trustee, and consequently 
 he, as cestui que trust, will, in right of the term, be legally 
 entitled to the possession during its continuance, to the ex- 
 clusion of all persons claiming any right to, or interest in, 
 the land, in respect of any disposition, or charge, made sub- 
 sequently to the creation of the term. This is the advantage 
 which a purchaser or incumbrancer secures, by procuring an 
 assignment of a term to a trustee in trust for himself. — He 
 protects his estate from being defeated or injured, by prior 
 titles and charges of which he is unacquainted, however 
 valid they may be, see Goodtitle v. Jones, 7 T. R. 43, 
 or by any subsequent disposition by the vendor or owner. 
 By neglecting to take such assignment, he leaves himself 
 exposed to the risk of some other person, whose title, 
 or interest, may even be acquired subsequently to his own, 
 getting the benefit of the term, and using it to his detriment, 
 see Goodtitle v. Morgan, 1 T. R. 755. Further, the Courts 
 of equity consider all persons acquiring any interest in an 
 estate, who are clear of notice of any other title (which 
 point will be hereafter considered), as having an equal right 
 to gain the benefit of an outstanding term for the protection 
 of their interests, if they can obtain it : and every assign- 
 ment diverts the term from its former channel, where it was 
 attendant, perhaps, on an inheritance vested in some other 
 person whose title could be enforced against the person in 
 possession, or on the estates and interests ofseveral persons 
 according to the priority of their respective titles and 
 charges ; and turns the whole benefit of it in favour only of 
 
 E 2 
 
 51
 
 OF A TERM OF YEARS. 
 
 a particular individual, and the inheritance he has acquired, 
 whose title might, perhaps, independently of the term, be 
 found to be the weakest, or altogether bad. Thus a person 
 who has a defective title to the inheritance may, by means 
 of a term, secure his possession of the estate ; and this, as 
 the term is in most cases of considerable length, is virtually 
 securing the full benefit of the inheritance ; for the Courts 
 of equity will not, where the person who has a defective 
 title to the inheritance, and has also obtained the advantage of 
 an attendant term, and is not affected by notice of the title, 
 or charge, which, but for the term, would prevail against 
 him, deprive such person of the advantage he has acquired, 
 or abridge his estate or interest, to the mere beneficial in- 
 terest in the term. On the contrary, they consider the term 
 as attendant only on the freehold and inheritance which he 
 has acquired, notwithstanding the existence in any other per- 
 son of a better right or title to the inheritance, or to any 
 charge upon, or particular estate or interest out of it. But 
 the only persons that equity will allow to protect themselves 
 by the assignment of an outstanding term, are purchasers for 
 a valuable consideration, (in which description are included 
 persons claiming under settlements made before, or in pursu- 
 ance of articles entered into previously to marriage, and 
 mortgagees, annuitants, &c.) and without notice, at the time 
 of their purchase, of the intermediate estate, or incumbrance, 
 against which they would protect themselves. Between such 
 persons and those claiming against them, the equity is equal ; 
 that is, neither of them has any ground of preference to claim 
 the protection or interference of a Court of equity in his 
 favour, against the legal title of the other of them ; and when- 
 ever that is the case, the parties are left to their legal title, 
 and whoever has the best will prevail. Two exceptions, 
 however, exist to the rule respecting notice ; first, in the case 
 of Dower, against which a purchaser even with notice is 
 allowed to protect himself, where he takes an actual assign- 
 ment of a term, Radnor v. Vandebendy, Shoto, Ca. in Par. 
 69, and Prec. in Chan. 60 ; Stvannock v. Lyford, Amh. 6 ;
 
 OF A TERM OF YEARS. 53 
 
 Butler's notes to Co. Lift. 208, a. n. 105 ; and Maundrell v. 
 Maundrell, ubi supra ; Mole v. Smith, 1 Jacob S^ Walk. 
 665 ; and secondly, in the case of specialty debts to tlie crown, 
 against which a term Avill not protect a purchaser even without 
 notice of them, The King v. Smith, Sugd. Vend. Sf Purch. 
 App. No. xvii. It is further to be observed on the point of 
 notice, that it is not necessary that a person should be un- 
 affected with notice, when he procures the assignment of a 
 term, if he were clear of notice at the time of his purchase or 
 mortgage, or other charge : for in such case equity allows 
 him to avail himself of any protection he can acquire against 
 the defect of title, or charge, which he has subsequently 
 discovered ; and an outstanding term, or legal estate, is 
 considered as tabula in naufragio, of which the first who 
 possesses himself is allowed the full benefit. 
 
 As a term of years, which is attendant upon the inherit- 
 ance, is thus considered part of it, whilst one which is in 
 gross, both at law and in equity, is part of the personal estate 
 only of the owner, it may be proper, and in practice is some- 
 times important, to ascertain in what instances a term will 
 become attendant. This may be either by construction of 
 law, or more correctly of equity, or by express declaration. 
 When the same person is beneficially entitled both to the 
 term and the fee, whether his interest in the former be equit- 
 able, and in the latter legal, or vice versa, so that a merger 
 would take place, if the legal interests in both were united in 
 him, or if such merger would not take place, on account , 
 of intervening legal estates, yet if the same person be also 
 beneficially entitled to such intermediate estates, or if they 
 were created by such person, or raised only for securing 
 mortgagees, or other charges, the term is, in such cases, 
 attendant upon the inheritance by necessary implication of 
 law. Whether a term can be made attendant by express de- 
 claration, where it would not be so without, is a point on which 
 there is a considerable difference of opinion, see Scott v. Fen- 
 houillet, 1 Bro. C. C. 69, Sanders on Uses and Trusts, 3d 
 ed. 230, and Sugd. Vend, ^ Purch. 9th ed. 523, and an
 
 54 OF A TERM OF YEARS. 
 
 opinion of Mr. Fearne, in 2 Col. Jur. 297. It should seem, 
 however, to be the better opinion, that where a person is 
 entitled to the beneficial enjoyment of an estate in right of a 
 term only, and such person, although owner of the inherit- 
 ance, has no title, as such owner, to claim a preference to the 
 acquisition of the term, and there is also an actual beneficial 
 interest in the estate immediately reversionary to the term in 
 another person, over which the person, entitled to the in- 
 heritance, has not, in right of the inheritance any controul ; 
 in such case, although the person entitled to the term, and 
 the possession in right of it, may also have the inheritance, 
 yet he cannot even by express declaration make the term 
 attendant upon the inheritance. For if he could, it would 
 be taking advantage of a rule of equity, to alter the nature of 
 property, and to convert a chattel interest into a freehold one. 
 From what has been said, the student will observe that where 
 a termor purchases the freehold and inheritance, and takes 
 a conveyance of the fee in the name of a trustee, the term in 
 himself will, by construction of law, be attendant upon his 
 equitable fee simple ; and it is the practice to require the 
 assignment of such terms as being attendant. There was, 
 however, [before the statute 3 & 4 Will. 4, c. 104, which 
 renders real estate assets for the payment of simple contract 
 as well as specialty debts,] this difference between them and 
 other attendant terms, that they were assets in the personal 
 representatives of the owner of the estate, for the payment of 
 , his simple contract debts, see Doivse v. Percival, 1 Vein. 
 104, and Thruxton v. Attorney- General, lb. 341. This 
 followed as a legal consequence, and there was no ground for 
 equity to interfere against the creditors : in other respects 
 they are assimilated to attendant terms vested in trustees. 
 
 The student will, it is hoped, from the preceding obser- 
 vations, be enabled to trace the general outlines of the doctrine 
 of attendant terms, and the principles which govern it. The 
 importance of that doctrine in practice, and the difficulty of 
 explaining it concisely in a femiliar manner, must be the 
 apology for the length to which the observations have ex-
 
 OF A TERM OF YEARS. 65 
 
 tended. Too much pains cannot be bestowed in order to 
 acquire a complete knowledge of the subject ; and the student 
 should pursue it in the several works and cases referred to 
 in the margin, and in the cases which have been cited in the 
 course of these remarks. An attentive perusal of them will 
 more fully convince him of the utility of assigning terms as a 
 protection, andrthe danger of leaving them outstanding. Of 
 the former, the case of Goodtitle v. Jones, 7 T. R. 43, before 
 cited, is as strong an instance as can well arise ; and Good- 
 title V. Morgan, 1 lb. 755, which has been also already 
 referred to. is a striking example of the latter. 
 
 In practice, it is now the general rule for a purchaser, or 
 mortgagee, to require an assignment, or surrender, of all 
 terms which have been previously assigned to attend ; and an 
 assignment or surrender of any outstanding terms, even where 
 they have never been so assigned, can rarely be safely dis- 
 pensed with ; for the doctrine of a presumed surrender is not Doe v. HUdcr, 
 to be relied on, and could never be maintained against an ac_ i^o^^Ei 
 tual assignment procured by another person. It was formerly Grocock, 
 very usual to leave terras, which had been already assigned Suqd. V. §• P. 
 to attend, in the old trustees, and to rest satisfied with a , '" ,, " 
 
 1 Pow. Mort. 
 
 general declaration, in the conveyance of the estate, that they 508, 0th ed. 
 should be held in trust for the purchaser, or mortgagee. This 2 Bro. '&■ DiLi 
 practice is not to be recommended, and is now seldom adopted. ^''- \.^"^ ^• 
 
 _ Plowman, 
 
 In Maundrell v. Maundrell, tibi svp., there was a general 2 Bar. §- A<U. 
 
 573 1 
 declaration of that nature ; but it was decided that there -' 
 
 must be an actual assignment to a trustee for the purchaser, 
 to protect against a title of dower ; and the principle of that 
 decision seems equally applicable to the case of all charges 
 and incumbrances. When there is a term sufficiently old, 
 which can be shewn clearly to include the estate, and of 
 which every step of the title can be easily proved, it is un- 
 necessary to assign any others ; and, indeed, more advisable 
 to surrender them, to prevent the expense of preserving and 
 procuring a person to assign them at a future period. But 
 sometimes it is necessary to assign more than one term in the 
 same estate, as it may be uncertain of which the owner could
 
 56 OF A TERM OF YEARS. 
 
 avail himself. Now, it is a rule of law, when two estates 
 which are immediately reversionary to each other, meet in 
 the same person in one right, that the one which gives the 
 title to the possession, except it is an estate tail, will, if it 
 be less in quantity than the one in reversion, merge and be- 
 come extinct in the latter. A term of years will, therefore, 
 merge in an estate of freehold, or higher estate ; and it has 
 been further decided, that one term will merge in another 
 which is immediately reversionary to it, Hughes v. Rohotham, 
 Cro. Eliz. 302 ; Stephens v. Bridges, 6 Madd. Q6, Reg. Lib. 
 B. 1821, p. 1687. This merger will take place, although the 
 term in reversion be for a less duration in point of time than 
 [6 Cru. Dig. the One which is entitled to the possession ; for it does not 
 
 tit. Merger, i . i 
 
 p 475. Ed. 4.] depend upon one term bemg longer than the other, but on 
 the relation which the two termors bear to each other, while 
 the estates are kept distinct. In such case the person, who 
 has the term which was first created, is, in right of it, enti- 
 tled to the possession ; and the person who has the term in 
 reversion is entitled to the rents and services, where any arc 
 reserved, of the first termor, as holding a grant of the rever- 
 sion, to which those rents and services were incident. The 
 first termor is, therefore, in fact, legally tenant to the other, 
 and this tenancy equally subsists where there is not any rent 
 payable. The consequence is, that the first termor can sur- 
 render to the second ; and on such surrender his estate 
 becomes extinguished in the portion of the reversion which is 
 vested in the latter, whose estate then becomes an estate in 
 possession. And where both the estates meet otherwise in 
 the same person in one right, the same effect follows by 
 operation of law ; and the term first created will merge in the 
 reversionary one, in right of which alone the person will 
 become entitled to the possession. To prevent this, which 
 might be injurious to a title, in the case where a number of 
 terms in the same estate are to be assigned, it is the practice 
 to assign them alternately to two trustees : one trustee takes 
 the 1st, 3d, 5th, &c., according to the priority of crea- 
 tion ; and the other trustee, the 2d, 4th, 6th, &c. Thus
 
 OF A TERM OF YEARS. 57 
 
 none of the terms vested ia either trustee are immediately 
 reversionary to any of the others vested in the same trustee, 
 there being an intermediate term to each, vested in the other 
 trustee, which, so long as all the terms are subsisting, prevents 
 the merger of any of them ; and by this plan two trustees are 
 sufficient for any number of terms. 
 
 A plan has been proposed for rendering titles under at- 2 Preston's 
 
 , -111 /> 1 1 Treat on Cvn- 
 
 tendant terms more simple, that the trustees ot the several j^^y 127. 
 terms should make underleases, to the full extent of their 
 respective terms, except a small reversion on each to one 
 person, in trust for the purchaser, or other person, requiring 
 the protection of the terms, and to attend the inheritance; 
 leaving the reversion on each underlease outstanding in the 
 original trustees, which would prevent the merger of the several 
 derivative terms. This plan, if a purchaser would not require 
 the assignment of the original terms, which are made merely 
 reversionary on the underleases, secures, it is supposed, the 
 benefit of all of them, at the expense only of preserving 
 one trustee. The objection to it, which is admitted, is that 
 a purchaser might require the assignment of the original 
 terms ; and it is submitted that he has a right to do so, and 
 could not be advised to waive such right, whilst he is exposed 
 to have it asserted against himself on a future occasion, when 
 his expense would probably be considerably increased, by 
 having left them outstanding. If, therefore, the original terms 
 are to be assigned, no advantage can arise from the adoption 
 of the plan. Another mode has been suggested, for simpli- 3 p^^^^ j,^^^^ 
 fying titles under terms, on the plan of an underlease ; which "" Convey. 2Qb. 
 is, that one underlease should be made, derived out of 
 all the terms, and the term so created be vested in a trustee 
 to attend the inheritance ; which new term, it is stated, 
 will operate on each of the terms, giving the benefit of each 
 of them, and be a lease, from the person who for the time 
 being can confer the right to the possession, and a confirma- 
 tion from the other lessors ; and then that the several residues 
 of the original terms should be assigned to another trustee ; 
 or, which is stated to be preferable, and equally safe, should
 
 .'">8 OF A TERM OF YEARS. 
 
 be surrendered. If the original terms are to be assigned, then, 
 as there must be two trustees, we see no advantage to be de- 
 rived from this plan, over that of assigning the original terms 
 alternately^ in the manner we have first mentioned : and the 
 only benefit that appears, is that of having one trustee instead 
 of two, by surrendering the original terms. The objections, 
 that we think the plan open to, apply equally, whether the 
 original terms are assigned, or surrendered. First, we con- 
 ceive tlie proposition questionable, that a term, created by 
 way of underlease, secures, in all cases, to the lessee, the 
 benefit of all the terms out of which it is derived. It is true, 
 that a term granted by a tenant for life, and the reversioner 
 
 Scoti V. Fen. in fee simple, will give the termor the full benefit of his term ; 
 
 C. C. 68. ^"^st, out of the estate for life, and afterwards, out of the re- 
 
 version. In this case, however, the derivative estate is less 
 in quantity than the estates out of which it is created j and 
 there is a reversion left both in the tenant for life, and re- 
 versioner in fee. But in an underlease granted by a termor, 
 the derivative estate is equal in quantity, or degree of estate, 
 with the estate out of which it is created ; and a reversion 
 can be preserved, only by making the derivative estate for a 
 period less in duration than the residue of the original term : 
 for if the whole time of that term be parted with, though by 
 way of underlease according to the form of the deed, yet it is 
 in construction of law an assignment of the original term, 
 and not an underlease derived out of it. It is on this prin- 
 ciple we think the proposition above-mentioned doubtful in 
 its application to the case of attendant terms. Those terms 
 are usually concurrent with each other, and operate after 
 the first, as successive grants of the reversion. Now, to 
 illustrate the point in question, we will suppose that several 
 terms are outstanding, of the description we have mentioned, 
 differing in duration, but of which the last, in point of 
 creation, extends beyond all the others, by any given portion 
 of time ; and all the termors join in an underlease to one 
 person, for a term which shall embrace the whole period of 
 the residue of all the terms, except the last, of which a small
 
 OF A TERM OF YEARS. 5-^ 
 
 reversion is left. In this case, as the underlease includes 
 the whole time of all the terms, except the last, it will, it is 
 presumed, operate as an assignment of all those terms, and 
 consequently produce a merger of such of them as are imme- 
 diately reversionary to each other, in the same manner as if 
 they had been assigned to one trustee. Further, so far as 
 the undex'lease takes effect out of the term which was created 
 last, it will, it is conceived, be a grant out of such term ; 
 and the term created by such grant, being immediately 
 reversionary to all the others, which had been assigned by 
 the operation of the underlease, will merge those terms ; so 
 that, in fact, the underlease will operate solely out of the last 
 term, instead of giving the benefit of the former ones ; and 
 has nearly the same effect as if all the terms had been 
 assigned to one trustee. For if all the termors, except the 
 last, assigned their several terms to one person, and then the 
 last termor made a grant out of his term to the assignee, this, 
 if the terms will merge at all in each other, would merge all 
 the prior terms ; and the operation of the underlease, as it 
 has the same effect, must, on the same principle, produce the 
 same consequence. When the term of which the residue is 
 the longest, is not the last in point of creation ; still the same 
 consequences will, it is presumed, partially follow, if the un- 
 derlease comprises any portion of the time by which such 
 terra exceeds the others, as it will be an assignment of all 
 the terms of which it includes the whole period of the 
 residue, and a grant out of the one of which any reversion 
 is left. Another objection to which we think the plan of 
 underleases is exposed, which applies generally to every 
 plan of that nature, is, that an underlease, which takes effect, 
 strictly as a lease, out of the term entitled to the possession, 
 can operate only as a demise at common law, requiring the 
 actual entry of the lessee to vest it as an estate, and before 
 such entry conferring only an interesse termini; and we 
 think it doubtful how far the entry of the freeholder, the 
 cestui que tritst, would, in a Court of law, be considered as 
 the entry of his trustee, having only an interesse termini.
 
 60 OF A TERM OF YEARS. 
 
 We therefore think, on the whole, that when several terms 
 require to be assigned, the first mode we have mentioned, 
 of assigning them alternately to two trustees, is the safest to 
 be followed. 
 
 There are some incidents to an estate for years which have 
 not been noticed. The lessee, where not restrained by co- 
 venants, or a reservation out of the demise, to the contrary, 
 which is now usually the case, is entitled to estovers, i. e. to 
 timber and wood, for fuel, and for the repairs of his dwell- 
 ing, hedges, &c., and agricultural implements. And where 
 the term is limited to determine on the happening of a 
 collateral event, the lessee, or his personal representatives, 
 Davis V. Duke are, when it so determines, entitled to emblements. With 
 
 of Marlboro, t r n • 1 1 . . 
 
 '2 Swan. 144. respect to waste, and forfeiture, the same doctrme is gene- 
 rally applicable to a tenant for years, as to a tenant for life ; 
 and for information on those points we refer to the Chapter 
 " Estate for Life."
 
 ()l 
 
 CHAP. III. 
 
 OF AN ESTATE OF FREEHOLD. 
 Estates at will and for i/ears are considered 2 mack. Com. 
 
 •^ / 104, &c. 
 
 bv the law as only chattel interests. An estate Suiiin. Lect.y\. 
 
 / , ,./, ■*"-"" r—'.r'''^: 15«rr.l07,&c. 
 
 for ones own life, or the life of another person^ BuU n (i)to 
 
 , ' „ Co.Litt.2QQ,h. 
 
 or any greater estate, is deemed an estate 01 
 freehold. In the tenant of the latter estate the 
 feudal possession or seisin is vested ; and the 
 tenants of the former are regarded as only the 
 bailiffs or farmers of their respective lessoj;^.* 
 
 * This position hardly applies to the nature of chattel 
 interests in the present day. — It is drawn from the feudal 
 law, under which estates for years were so little regarded, 
 that if the tenant of the freehold permitted the freehold to be 
 recovered in a feigned action, it operated as a good bar to all 
 terms of years derived out of it, by reason that the reco- 
 veror came in by a title paramount to that of the lessor ; 
 nor could the termor for years falsify the recovery. This 
 evil was remedied by the statutes of Gloucester, 6 Ediv. 1, 
 c. 11, and the 21 Hen. 8, c. 15, and the estate of termor 
 for years is now as well protected by the law as that of the 
 freeholder. The law, however, still considers the possession 
 of the termor, as the possession of the freeholder, as has been 
 already explained in the note on terms for years, ayite, page 
 46, and, therefore, if the ancestor die, leaving a chattel lease
 
 62 OF AN ESTATE OF FREEHOLD. 
 
 Hence Iwery of seisin"^' was given on the creation 
 of an estate of freehold, though it could not be 
 given on the creation of an estate at will or for 
 yearsf only, as tiie person intended to hold at 
 will, or for years, was not to be put into the 
 seisin; for if livery had been given, a freehold, 
 of necessity, J would have passed at common 
 law.§ The tenant for life, or the immediate 
 
 outstanding, the entry of the heir is not necessary, for he is in 
 
 Co. Litt. 15, a. the actual seisin, before entry or receipt of rent. And if, in the 
 like case, there were issue of different venters, and after the 
 death of the father, the eldest son died without entry, there 
 would, nevertheless, [before the stat. 3 & 4 Will. 4, c. 106,] 
 
 7 T. R. 390. be a sufficient seisin in him to constitute what the law called 
 2i possessio fratris, and to prevent the issue of the half blood 
 from succeeding to the estate. 
 
 * The necessity of an actual livery is now frequently 
 obviated by conveyances under the Statute of Uses. See 
 Book II., c. 11, 12, and 13.— Note by Mr. Watkins. 
 
 f But if the inheritance be by deed of feoffment, limited 
 to one for years, with remainder over for life, in tail, or in 
 fee, in such case the livery of seisin was, ex necessitate ret, 
 made to the lessee for years. But the lessee must have 
 
 Litt Sec. 60. taken care not to enter into possession before livery made ; 
 for afterwards the livery could not be made to him on the 
 
 Co. Litt. 49, h. principle, says Lord Coke, ''quod semel meum est, amplius 
 meum esse non potest.^'' 
 
 J But livery of seisin made " secundum formam chartc^^ 
 restrained its operation to the estate contained in the deed. 
 
 Co. Litt. 48, b, " Thus," says Lord Coke, " If a man make a lease for years 
 by deed, and deliver seisin according to the form and effect 
 of the deed, yet the lessee hath but an estate for years, and 
 the livery is void." 
 
 § But since the Statute of Frauds, a freehold cannot pass 
 without writing. — Note by Mr. Watkins.
 
 OF AN ESTATR OF FREEHOLD. 63 
 
 tenant of tlie freehold, is to answer to the prcecipe 
 of strangers,* and to render to the lord the re- 
 turns of the feud ; and hence it is, that an estate 
 of freehold was not suffered to commence in 
 futuro,'\ as there must have been such an imme- 
 diate tenant in actual existence.^ 
 
 * And, therefore, he has a right to the possession of the Wehh v. Ly- 
 title deeds, in order to enable him to defend his claim. — j ^j^^' q 
 Note by Mr. Watkins. ' Dick'i98. 
 
 Roberts v. 
 
 f But at the present day a freehold may be limited in Roberts, 1 
 corporeal hereditaments, in fitttiro, by way of executory \'"i'^iy,i' 
 devise or future use, as will be explained hereafter ; and in l Mudd. Rep. 
 
 . ».~ ■■ I I - I I _ 322. 
 
 the mean time, the freehold will remain in the grantor, or 
 
 the heir of the devisor, as the case may be. And with 
 
 respect to incorporeal hereditaments granted de novo, such 
 
 as rents, &c., a freehold may be limited to commence in 
 
 futuro. 
 
 It may be further remarked, that an estate of freehold is, 
 in the eye of the law, always considered as of greater interest 
 than an estate for years, or chattel interest, and consequently, 
 if a term for ten thousand years, and an estate for life, unite 
 in one and the same person, the terra will merge in the Co. Lift. 46, a. 
 freehold, unless there be an intervening estate to prevent the 
 union of interests ; and note, that on a devise of lands, the 
 freehold is in the devisee before entry, and he may enter 
 without the assent of the heir of the devisor, and maintain Co. Lt«. 1 1 1 , a. 
 ejectment against him. 
 
 I In this chapter Mr. Watkins has very briefly treated of 
 the Estate of Freehold. We shall not apologize to our 
 readers for the following remarks. The explanation ren- 
 dered by 3Ir. PFatki?is (after stating the duration), of the 
 nature of the estate is, that in the tenant of this estate the 
 feudal possession or seisin is vested ; and he must answer to 
 the prcBcipe of strangers, and render to the lord the returns 
 of the feud : an explanation strictly drawn from the prin-
 
 64 OF AN ESTATE OF FHEEHOLD. 
 
 ciples of the feudal law. It is probably true, that under 
 that law the freehold always denoted an estate in possession, 
 in like manner as the term " freeholder" still does ; for the 
 word freehold appears originally to have comprised the whole 
 fee., whatsoever its extent. And the freeholder represented 
 the whole fee, insomuch that prior to the 32 Hen. 8, c. 31, 
 if he permitted the freehold to be recovered against him 
 in a fraudulent or covenous action, the remaindermen were 
 utterly barred and without remedy. But, we apprehend, it is 
 long since the term " Estate of Freehold" implied, or re- 
 quired, the actual possession of the land, although the learned 
 author of the Commentaries, in explaining the meaning of the 
 word freehold, Vol. II. p. 104, after citing Britton, cap. 32, 
 and the Doctor and Student, B. 2, d. 22, says, " Such an 
 estate, therefore, and no other, as requires actual possession 
 of the land, is, legally speaking, freehold." An estate of 
 freehold, we submit, may, according to our modern ideas, be 
 in possession, remainder, or reversion. For, as remarked by 
 1 Burr. 108. Lord Mansfield, instead of (as formerly) signifying the whole 
 fee, it now denotes the duration of a man's estate or interest 
 in the land ; that is, instead of being applied, as formerly, 
 to express the nature of the tenure, it is now applied to 
 signify the duration or extent of the interest which the indi- 
 vidual takes in the inheritance of the land. The inheritance 
 may be split into numberless estates of freehold, instead of 
 the freehold signifying, as formerly, the whole fee. In fact, 
 as observed by Mr. Butler, Co. Litt. 266, b. note I, the 
 Estate of Freehold now implies the reverse of its former 
 signification, for (standing alone, and without further expla- 
 nation) it denotes that the estate or interest in the land is 
 not of inheritance, but an estate for life only. The free- 
 hold, or liherum tenementum of the feudal law, is hardly 
 understood in modern times. In the learning of disseisins, 
 in cases of writs of prcecipe quod reddat, and in certain in- 
 stances of release of right to the land, we still look, it is true, 
 to the actual freeholder : but, for the great purposes of 
 the feudal law, the consequences resulting from the feudal
 
 OF AN ESTATE OF FREEHOLD. 65 
 
 seisin, or possession, are at an end. And Lord Mansfield l ^»"'- 'f'f'- 
 goes so far as to say, " that the statutes passed for the pre- 
 vention of subinfeudations, and for the removal of restraints 
 on alienation, together with the frequent releases of feudal 
 services, the Statutes of Uses and Wills, and the total abolition 
 of all military tenures, have left us little but the name of 
 freehold, without any precise knowledge of the thing originally 
 intended by that sound." It is not our intent to enter into 
 an explanation of the feudal system, nor of the means alluded 
 to by Lord Mansfield, whereby that system was eventually 
 destroyed. For this purpose, we must refer the student to 
 the several excellent treatises on the subject. 
 
 A freehold interest, we conceive, may imply considerably 
 more than a mere estate of freehold. It may, as opposed to 
 copyhold, or chattel interests, comprise the whole fee, and be 
 expressive of the whole estate created. But we wish to im- 
 press on the mind of the student, that an estate of freehold is 
 not now necessarily an estate in possession, and that, correctly 
 speaking, standing (as we have said) alone, and unassisted by 
 other expressions, it denotes that the estate or interest in 
 question is not of inheritance, but for life only ; and that 
 where a greater estate is intended to be expressed, it is now 
 more accurate to say " freehold and inheritance." 
 
 An estate of freehold, therefore, may be defined to be 
 " an estate in possession, remainder, or reversion, in cor- 
 poreal or incorporeal hereditaments, held for life or for 
 some uncertain interest created by will, or by some mode of 
 conveyance capable of transferring an estate of freehold, 
 
 which may last the life of the devisee, or grantee, or of some f. j!" a /- /^jaA*/ laCiS^ 
 other person." It may, however, be necessary to remind /J' ^j ^ '^t. 
 
 the student, there are certain interests in land, which, f 
 
 although of uncertain duration, and therefore in that respect 
 participating of the nature of freehold are nevertheless 
 chattels. These are interests created by the statute law ; 
 and are securities for the payment of debts, namely, estates 
 by statute merchant, statute staple, and by elegit, Co. Litt. 
 42 a, the possessors of which are said to hold their lands 
 
 F
 
 66 
 
 OF AN ESTATE OF FREEHOLD. 
 
 Carter v. Bar- 
 7inrdiston, 1 
 P. Wms. 509. 
 Hitchins v. 
 Hit chins, 
 2 Ferre. 404. 
 Co. Litt. 42, b. 
 Dyer, 135. 
 
 Co. Litt. 20, a. 
 
 Havergill v. 
 jf/are, Cro.Jae, 
 510. 
 
 " as freehold ;' but whose interests are really chattel. There 
 is also another exception to the rule, in the case of an inde- 
 finite devise of lands to executors or trustees for and until 
 payment of debts, which is also a chattel interest [in wills not 
 within the operation of the statute 1 Vict. c. 26, s. 31] ; and 
 a grant of a presentation to an advowson is also, it seems, a 
 chattel interest. 
 
 A freehold interest may be had in offices relating to land, 
 or exerciseable within particular districts ; and these are 
 within the Statute De Donis, and may be entailed. Lord Coke 
 mentions as instances, the Marshal of England, one of the 
 Chamberlains of the Exchequer, and offices of Forestership. 
 See also 3 Cruises Digest, 4th ed. Title Offices, p. 98. 
 
 An entry on land under powers of distress and entry, on a 
 grant of an annuity in fee by a conveyance, operating under 
 the Statute of Uses, also gives a freehold interest, viz. a coti- 
 ditional inheritance determinable on payment of the rent ; 
 and until entry made, the right of entry is in the nature of a 
 contingent or future use to arise on nonpayment of the rent, 
 and will pass with a grant of the rent.
 
 67 
 
 CHAP. IV. 
 
 OF AN ESTATE POUR AUTRE VIE. 
 An estate joowr* autre vie is an estate o^ free- 2 bl comm. 
 
 7 77 ,,,.., 1 , n 120.258. Litt. 
 
 noldy though it is the lowest or least estate 01 b. 1, s 5.5 57, 
 freehold which the law acknowledges.* An b. &c. 2 Vac. ' 
 estate for the life of another is not so great as vi71.Ab.2m. 
 an estate for one's own life.! If A. have an l^TjXS' 
 estate for his own life, with remainder to B. for fjf' ^^^ *''^* 
 the life of 5., jB. is capable of taking a surrender Co.Litf.A\,h. 
 from A.X A prcccipe quod reddat will lie against 
 
 * If tenant pour autre vie hold over after the death of 
 cestui que vie, he will be tenant at sufferance, vide ante, p. 24. 
 
 f And, therefore, says Lord Coke (^Co. Litt. 42 a), " if a 
 tenant in fee simple make a lease of lands to B., and to hold 
 to B. for term of life, without mentioning for whose life, it 
 shall be deemed for the life of the lessee, for it shall be taken 
 most strongly against the lessor. — But if tenant in tail make 
 such a lease, without expressing for whose life, this shall be 
 taken for the life of the lessor, on the principle that where the 
 words of a deed may have a double inteodment, and one 
 standeth with law and right, and the other is wrongful and 
 against law, the intendment that standeth with law shall be 
 taken." 
 
 J The effect of the surrender, will be that the estate of ^. 
 will merge in that of B., and B.^s estate will be accelerated 
 
 F 2
 
 68 OF AN ESTATE POUR AUTI^ VIE. 
 
 a tenant pour autre vie ; for lie, being tenant 
 of the freehold, must answer to the claims of 
 
 and brought into possession. And, therefore if it be the wish 
 of the parties that both estates should be kept on foot, A. 
 must convey his interest to a trustee for B.. so that if B. shall 
 die in A.''s lifetime, his representative may be entitled during 
 the remainder of the life of A. But if it be the object of 
 the parties to merge the estate of ^., care must be taken, 
 there be no intervening estate in a third person between the 
 estates of A. and B. (such as an estate in trustees to preserve 
 contingent remainders or the like,) to prevent the operation 
 of the surrender. It sometimes happens that on the marriage 
 of a person entitled to an estate for life in remainder with 
 powers of jointuring, and charging with portions ivhen in 
 possession, the tenant for life in possession is willing to concur 
 in enabling the remainderman to exercise his powers forth- 
 with : and for that purpose a lease is first granted to a trustee 
 for the tenant for life ; and then, in case of an intervening 
 estate in trustees to preserve contingent remainders, the 
 tenant for life conveys, or (if there is no such estate) sur- 
 renders his life estate to the remainderman, who thereupon 
 assumes to exercise his powers. To the first of these plans 
 Mr. Butler has objected in his note Co. Litt. 271 b., that if 
 the words of the power are " when in possession under the 
 limitations," the words of the power are not complied with, 
 the party being in fact tenant pour autre vie, under the con- 
 veyance ; and that if the words, " under the limitations," are 
 not in the power, they ought to be implied, and consequently 
 the power cannot be well exercised. But the other of the 
 plans, when practicable, he seemed in the former editions of 
 his Notes to consider free of objection ; but in his last edition 
 he has stated the point doubtfully. Sir Edward Sugden, 
 in his Essay on Powers, 1 Vol. 356, Edit. 6, argues strongly 
 that even in the latter case the powers cannot be duly exer- 
 cised, on the ground that the transaction is a fraud on the
 
 in notts. 
 
 OF AN ESTATE POITR aUTRH VIE. ^'9 
 
 Strangers; and hence such an estate cannot be ^Jte^p^'jjjf 
 created to commence infuturo. 
 
 This estate, being an estate of freehold, must 
 
 subsequent remainderman, in the event of the death of the 
 donee of the power in the lifetime of tlie tenant for life in 
 possession ; and, consequently, charging the estates with 
 burdens, to which, without the assistance of the tenant for 
 life in possession, they would not have been subject ; and in 
 the later editions of his Essay on Powers he has cited a case 
 recently determined in the Court of King's Bench, Coxe v. 
 Day, 13 East, 118, which he seems to consider in support of 
 his reasoning. This case shortly was — an estate was settled 
 on father for life, with remainder to son for life, with power 
 for the father during his life, and after his decease, for the 
 son to grant leases for twenty-one years in possession. The 
 father conveyed his life estate to the son, reserving a rent. 
 The son being in possession made a lease under the power in 
 his father's lifetime, and the lease was held void. Now we 
 beg to remark, that although we consider there is much force 
 in Sir Edward Sugden's argument against the validity of the 
 exercise of the power on an actual surrender of the prior 
 interest, yet we cannot think the case of Coxe v. Day 
 strengthens that argument, or is even in point. In the prin- 
 cipal case the requisite of the power, viz. being inpossession, 
 is complied with ; and the ground of objection is fraud. But 
 in Coxe v. Day the terms of the power were not satisfied ; 
 and it was not on the part of the defendant argued that the son 
 might make the lease by virtue of the power limited to himself 
 under the settlement, but that he made it by virtue of the 
 power limited to his father as the assignee of his father's estate, 
 a position perfectly untenable. We have made this remark 
 to show that the question, whether the mode formerly ap- 
 proved by Mr. Butler of exercising the power is maintainable 
 or not, is as open to argument since, as before the case of 
 Coxe V. Day.
 
 70 
 
 OF AN ESTATE POUR AUTRE VIE. 
 
 be created by some mode of conveyance wbicb 
 will pass the freehold in possession ;* and may be 
 transferred, that is conveyed, during the lives of 
 the celles que vies, by the common mode of con- 
 veying freeholds. It may also be surrendered to 
 the immediate reversioner, [or remainderman,] 
 though that reversioner, [or remainderman,] be 
 onlv tenant for his own life, [as before observed.] 
 
 If an estate for the lives of ^., B., and C, had 
 
 been conveyed to D. without more, and D. had 
 
 died, living celles que vies, the person who first 
 
 entered, might have enjoyed the lands during 
 
 29Car. 2, c. 3, thc Hvcs of ^., B., and C. But by the statutes 
 
 5. 12. 14 Geo. •' 
 
 2, c. 20. s. 9. of Car. 2, and Geo. 2, D. [the person entitled to 
 an estate pour autre vie, was empowered to] dis- 
 pose of the estate by his last will (to be executed 
 according to the Statute of Frauds, it being an 
 estate of freehold) ; or, if he died intestate, [and 
 there was no special occupant named,] it passed 
 to his executors or administrators, and was dis- 
 tributed among the next of kin.f [Such parts 
 
 * This observation must, of course, be confined to those 
 cases in which an estate pour autre vie is intended to be 
 created out of an estate in possession. For an estate pour 
 autre vie may, like any other interest, be created out of an 
 estate in remainder or reversion, by way of grant only. 
 
 f The estate by occupancy deserves consideration. By 
 the common law, if lands had been limited to A. for the life 
 of B., and A. had died in B.'s lifetime, an estate arose by 
 general occupancy ; for as the lands could not go to the heir 
 
 Occupancy. 
 
 for want of words of inheritance, nor to the executor or
 
 OF AN ESTATE POUR AUTRE VIE. 71 
 
 of the two Statutes above referred to as related to 
 Wills have been recently repealed by the statute 
 1 Vict. c. 26 ; and new enactments have been 
 substituted, by which important alterations have 
 been introduced into the law respecting testa- 
 mentary dispositions made upon or after the 1st 
 day of January, 1838, as will be after noticed.] 
 
 But, though this be an estate of freehold, it Carth. 376. 
 
 Oldham v. 
 
 Pickering, 
 
 Butl. n. 5, to 
 
 administrator in respect of the estate being freehold, there Co. Liu.A\,h. 
 
 was no legal owner, and the law gave it to the first person po^^eJ. 
 
 who could enter ; and, therefore, if such tenant pour autre 
 
 vie had made a lease of the lands, and had died during the 2 Bac.Ab.^QA. 
 
 life of cestui que vie, the tenant in possession might have 
 
 held the freehold pour autre vie. And so in case of a dispute 
 
 between tenant for years and lessee at will which of them Cited 1 Vern. 
 
 should be general occupant, it was adjudged for the lessee at 
 
 will. And the common law also held the general occupant 
 
 was not subject to the debts of the grantee pour autre vie. Raggett v. 
 
 If, however, the estate was limited to A., and his heirs 233*^ ' 
 
 during the life of B., and A. died in B.'s lifetime, the heir 
 
 was held to be entitled, not as heir, although the estate is in 
 
 some of the books inaptly called a descendible freehold, but 
 
 as special occupant ; and as he did not claim as heir, he was 
 
 not subject to the specialty debts of his ancestor, and might Ver Lord Km. 
 
 plead rie?is per descent. And it was held generally that an ^^^\, gJ.'J'. 
 
 estate pour autre vie was not d evisa ble. It was also held 4 Term R'p. 
 
 that there could not be a general occupancy in incorporeal 
 
 hereditaments, but they might be limited to the heir as 
 
 special occupant, although in the case of Ripley v. Water~ 
 
 worth, hereafter mentioned, the Lord Chancellor is, by 
 
 mistake, made to say, there could have been no special 
 
 occupancy of an incorporeal hereditament, which is contrary 
 
 to all the authorities. It seems, however, clear they could
 
 72 
 
 OF AN ESTATE POUR AUTRE VIE. 
 
 may be limited to D., his executors and adminis- 
 trators, as well as to D. and his heirs; for the 
 successors of D. take as special occupants, and 
 nut by descent. And this mode of limitation 
 is often preferable, as it frequently saves the 
 premises or estate from the inconveniences of 
 a minority. 
 
 [In the recent statute for the amendment of 
 the law relating to wills, there is a special enact- 
 ment respecting estates pour autre vie. By the 
 
 2 Roll. Ah. 151. not be limited to executors or administrators, as special 
 
 ■I nac.Ab.566. occupants. 
 
 Whether corporeal hereditaments could have been limited 
 to executors or administrators as special occupants, has been 
 doubted by high authority : see the observations of Lord 
 Redesdale, in Campbell v. Sandys, 1 Sch. 8^ Lef. 288, 
 and see Roll. Ab. title Occupancy, G. 2. St. JohvUs Col- 
 lege v. Fleming, 2 Vern. 320. ComyrCs Digest, title Occu- 
 pant, Dyer, 328 b. Salter v. Butler, Cro. Eliz. 901, and 
 Mr. Hargrave's note, Co. Litt. 41 b. That they might be 
 limited, see Lord Hardivicke's opinion, in JVestfaling v. 
 Westfaling, 3 Atk. 460. Duke of Marlborough v. Lord 
 Godolpliin, 2 Ves. 61. Williams v. Jekyl, and Elliott v. 
 Jekyl, 2 Ves. 681. See also Roll. Ab. Occupancy, G. 2, and 
 Duke of Devon v. Kinton, 2 Ver?i. 719; and see also an 
 able note of Sir Edivard Sugden, in his Treatise on Powers, 
 vol. 1, p. 245, 6th Ed. The recent case of Riply v. Water- 
 worth has it seems, to us, decided the question in the 
 affirmative ; and, indeed, the weight of the older authorities 
 is altogether in favour of the limitation. 
 
 To remedy the evils of occupancy the statute of the 29 of 
 Car. 2, c. 3, called the Statute of Frauds and Perjuries,
 
 OF AN ESTATE POUR AUTRE VIE. 73 
 
 6tli section it is euacted, that if no disposition 
 by will shall be made of any estate pou7' autre vie 
 of a freehold nature, the same shall be charge- 
 able in the hands of the heir, if it shall come 
 to him by reason of special occupancy, as assets 
 by descent, as in the case of freehold land in 
 fee simple ; and in case there shall be no special 
 occupant of any estate pour autre vie, whether 
 freehold or customary freehold, tenant right of 
 customary or copyhold, or of any other tenure, 
 
 enacted, that " an estate pour autre vie should be devisab le 
 by w ill, executed in the presence of three or more witnesses ; 
 and if no such devise was made, it should be chargeable in 
 the hands of the heir, if it should come to him by special 
 occupancy as assets by descent ; and in case there should be 
 no special occupant, it should go to the executors or adminis- 
 trators of the party, that had the estate thereof, by virtue of 
 the grant, and should be assets in their hands." It is re- 
 markable, the statute does not refer to the executor or ad- 
 ministrator as special occupant : nor did it declare, to whom 
 the residue or surplus, which should remain in the hands of 
 the executor or administrator under the statute, should belong. 
 In the case of Oldham v. Pickering, 2 Salk. 464, Carthetv, 
 376, the latter question arose. The grantee pour autre vie, 
 died intestate, and there was no special occupant. The next 
 of kin claimed the residue, as undisposed -of personal estate : 
 but the Court determined, it was not distributable amongst 
 the next of kin ; for, notwithstanding the alteration by the 
 statute, it remained freehold estate ; and, in proof of it, it 
 was mentioned, the administrator must answer the prcecipe of 
 a stranger. 
 
 This was the occasion of the enactment of the 14 Geo. 2, 
 c. 20, s. 9, which, after reciting the statute of Car. 2, and
 
 74 
 
 OF AN ESTATE POUR AUTRE VIE. 
 
 and whether a corporeal or incorporeal here- 
 ditament, it shall go to the executor or adminis- 
 trator of the party that had the estate thereof 
 by virtue of the grant ; and if the same shall 
 come to the executor or administrator either by 
 
 that doubts had arisen, where no devise was made of such 
 estates, to whom the surplus, after the debts of such de- 
 ceased owner thereof were fully satisfied, should belong, 
 enacts, '•' that such estates pour autre vie, in case there 
 " shall be no special occupant thereof, of which no devise 
 " shall have been made, according to the said act, for 
 " prevention of frauds and perjuries, or so much thereof as 
 " shall not have been devised, shall go, be applied, and 
 " distributed in the same manner as the personal estate of 
 " the testator or intestate." On a consideration of the wording 
 of these statutes it seems clear from the circumstances of the 
 Statute of Frauds using the words " executors or adminis- 
 trators" in the declaration of the parties, to whom the 
 estates should go, in the event of there being no devise 
 according to that statute, and no special occupant, and of the 
 statute of the 14 Geo. 2, providing, that in such event 
 the surplus shall be distributed in the same manner as the 
 personal estate of the " testator or intestate ;" that both 
 statutes contemplated the case of an intestacy of the lease- 
 holds for lives, at the same time that there might be a valid 
 disposition of the personal estate by will ; but the latter 
 statute omitted to provide in express terms for that event ; 
 or, in other words, to state whether the surplus should, in such 
 case, go according to the personal estate disposed of by the will, 
 or as unuisposed-of personal estate ; nor was provision made 
 for the surplus, which might be in the hands of an executor 
 ]8 Vcs. 273. or administrator as special occupant. In the case of Ripley v. 
 Watenvorth, 7 Ves. 425, both points were considered. Lands 
 had been limited to a man, his executors, administrators, and
 
 OF AN ESTATE POUR AUTRE VIE. 75 
 
 reason of a special occupancy, or by virtue of 
 this act, it shall be assets in his hands, and shall 
 go and be applied and distributed in the same 
 manner as personal estate of the testator or intes- 
 tate. The 34th section of the act provides, that 
 
 assigns pour autre vie: he died, having published his will 
 (not attested according to the Statute of Frauds), and appointed 
 an executor, and made a residuary bequest of his personal 
 estate. There were three distinct claimants, the heir at law, 
 the residuary legatee, and the next of kin ; and it should 
 seem a claim was made on behalf of an administrator for his 
 own benefit. For the heir at law it was urged, that it was 
 real estate, viz. a descendible freehold, that it would not pass 
 by an unattested will, and an executor could not at common 
 law take as special occupant ; and, therefore, the heir at law 
 was entitled. For the residuary legatees and next of kin it 
 was urged, that an executor might at common law take 
 an estate poicr autre vie, as special occupant ; and that 
 even prior to the Statute of Frauds, it was assets in his See the Duke 
 
 . 1,, -c / \. of Devon v. 
 
 hands ; and that it would be strange it (the statute pro- Kinton, supra. 
 viding, where there is no special occupant it shall go to the 
 executor) it should not go to the executor, where it is 
 expressly given to him ; and that the executor would as 
 special occupant take it as personal estate, chargeable with 
 debts, and subject to application as personal estate, after debts 
 paid. — The Lord Chancellor was of opinion, it could in 
 no event go to the heir ; that it did not belong to the admi- 
 nistrator ; and that, as between the next of kin and residuary 
 legatee, the executor was in equity a trustee for those 
 to whom the testator had given the personal estate by a will 
 sufficient to pass personal estate, and therefore he must be 
 considered as holding it for the residuary legatee. Lord 
 Eldon compared the case with that of stock which, by the Miller y Hare- 
 
 ^ ... uood, 18 Fts. 
 
 several acts creating it, is disposable by will attcilcd by two 273.
 
 76 OF AN ESTATE POUR ALTHE VIE. 
 
 the act shall not extend to any estate pour autre 
 vie of any person wlio shall die before the 1st day 
 of January, 1838. 
 
 It will be observed that the 0th section in part 
 re-enacts the 29 Car. 2, c. 3, s. 12, and 14 
 Geo. 2, c. 20, s. 9 ; and, supplying the deficiencies 
 
 witnesses ; but which Lord Thurloio said, if not so be- 
 queathed, yet devolving upon the executor, should devolve 
 upon him in trust for those who are entitled to the personal 
 estate. If the executor die intestate, the estate it seems will 
 go to his administrator, and not to the administrator de bonis 
 non. See Oldham v. Pickering, and Ripley v. Waterworth, 
 supra; but it will be advisable to take out administration 
 to both. In Atkinson v. Baker, 4 Term Rej). 229, a point 
 arose, to whom the estate joo?/r autre vie would go if limited 
 to a man, his heirs, executors, and administrators, whether 
 (in case of intestacy) to the heir, or administrators : and it 
 was argued in favour of creditors generally, that the ad- 
 ministrator was entitled ; but the Court decided for the heir. 
 
 [In Doe V. Robinso7i, 8 Barn. Sf Cress. 296, the Court of 
 K. B. decided that an estate pour autre vie, limited to the 
 grantee, his heirs and assigns, and of which only a partial 
 interest was devised by the grantee, did. upon the determi- 
 nation of the partial interest, living cestui que vie, devolve 
 upon the testator's heir as special occupant. In that case 
 lands were limited to A., his heirs and assigns, pour autre vie ; 
 A. devised the lands to B. without words of inheritance ; 
 and the Court, being of opinion that B. only took an estate 
 for life, decided that upon B.^s death, living cestui que vie, 
 the lands devolved upon A.'s heir as special occupant ] 
 
 [It was, until a recent decision, considered doubtful 
 whether, if a rent were limited to a man, his executors and 
 administrators, pour autre vie, and the grantee died, living
 
 OF AN ESTATE POUU ATJTRE VIE. 77 
 
 of those enactments, comprehends estates pour 
 autre vie in incorporeal hereditaments, and in 
 real estate of every tenure.] 
 
 An estate pour autre vie may be limited over Harg.n. (5.) 
 
 ^ . fp 2. *° ^"^ ^^"• 
 
 by way of remainder ;* and in eflfect, be en- 20, a. 
 
 Feurne's Cont. 
 
 Rem. §• Exec. 
 
 Dev. bth ed. 
 . . , . 495, &c. 
 
 the cestui que vie, and without having disposed of it in his 6 Durnf. §• 
 
 lifetime, it was not determined, notwithstanding the statutes : "* \ '.' , 
 
 but in Bearpark v. Hutchinson, 7 Bing. 178, the case referred v. Lnxton. 
 
 / 11 \ • 1 -'^"d there may 
 
 to, a rent charge was granted to a person (generally) without be a possessio 
 
 words of limitation, and it was decided that, upon the death /'"«'"« and an 
 ' ' ^ executory de- 
 
 of the grantee intestate, living cestui que vie, the estate pour vise of an occu- 
 
 11 1 />i !•• , •,!_• pancy, 1 Fox Sc 
 
 autre vie was assets in the hands oi the administrator, within Smith, Rep. 4. 
 
 the statute 29 Car. 2, c. 3, 5, 13. A fortiori, therefore, it 1 ^«"'« ^^P- 
 
 ' _ ' -^ \ 44G, et vide 
 
 would be assets, the administrator being named in the grant, i Meriv. f)54. 
 In the above case, Tindal, C. J., delivered the opinion of the ogg 
 Court of C. B., that, although there could not be a general Kendall v. 
 
 Mickfield, 
 
 occupancy of a rent, before the statute, nor in strictness. Bam. Ch. Ca. 
 special occupancy, because there could be no occupancy of ' " ^^^~ 
 any thing which lay in grant, yet, upon the authority of Lord as to cases of 
 Coke and other early writers, it was said there might be a ecclesiastical 
 quasi special occupancy ; and as the statute was remedial, it P^'sons, &c. 
 was the soundest construction of the second branch of the ^g,.„ 2 Atk. 
 15th section, to hold that it included not only all such ^'^• 
 estates pour autre vie as were so in strictness, but also all 
 such as were, in common parlance, held to be the subject of 
 occupancy.] 
 
 * And the remaindermen (if not barred) will take as special 
 occupants. An estate pour autre vie may be also limited by 
 way of executory devise, or future use : and it is argued by 
 Mr. Butler, in his note in the 6th edition of Fearne's Con- 
 tingent Remainders, p. 500, that " although the executory 
 devise, or future use, be limited to take effect at a period 
 which exceeds the limit prescribed by law for the vesting of
 
 78 
 
 OF AN ESTATE POUR AUTRE VIE. 
 
 tailed [by any conveyance to uses,* by way of 
 trust, or by devise]. But those who had interests 
 in the nature of an estate tail [might even before 
 the recent statute 3 and 4 W. 4, c. 74] bar their 
 issue, and all remainders over, by alienation, 
 without fine or recovery, as by lease and release, 
 surrender, &c.t and the having issue is not 
 
 Compare Sug. 
 Gilb. U. 277, 
 with 3 Meriv. 
 347. 
 
 Baker v. Bay- 
 let/, 2 Vern. 
 225. Blake v. 
 Blake, 3 P. 
 JVms. 10, n. 1. 
 Now exploded, 
 Dillon V. Dil- 
 lon, 1 Ball Sf 
 Bea. 77. Coop. 
 1 85, et vide 
 2 Eden, 339. 
 
 such estates ; yet (that if there be not a tenant right of 
 renewal) it may be supported on the ground that the interest 
 itself, in which it is created, does not exceed that boundary ; 
 and therefore it is not necessary to connect the continuance 
 of the estate itself with the ulterior limitation, so as to make 
 it part of the event on which the ulterior limitation is to 
 arise." We need not remark that although this ingenious 
 argument may, if necessary, be resorted to in support of a 
 limitation, yet it cannot be relied on in practice. 
 
 [* Norton v. Frecker, 1 Atk. 523.] 
 
 f It was once doubted, whether tenant in tail of an estate 
 pour autre vie could by any means bar the remainders over, 
 Low V. Burron, 3 Peere Wms. 266. But it has been de- 
 termined, as stated in the text, that any alienation by the 
 tenant in tail will bar the remainders : and they will be also 
 barred by the surrender by tenant in tail of the old lease and 
 acceptance of a new one, although the trustees in whom the 
 legal interest is vested do not concur ; and even by articles 
 in equity, 1 Atk. 525. In Doe v. Luxton, 6 Term Rep. 293, 
 Lord Kenyon expressed a strong opinion that such remainders 
 over might also be barred by ivill ; but the case did not call 
 for a judicial decision ; and Lord Redesdale, in Campbell v. 
 Sandys, I Sch. S/- Lef. 295, has expressed a contrary opinion. 
 
 It may be further remarked that tenant pour autre vie is 
 entitled to emblements on the death of cestui que vie, Co. 
 Litt. 55 b. And that although the estate be limited to the
 
 OF AN ESTATE POUR AUTRE VIE. 79 
 
 essential, as in the case of a conditional fee 
 at common law. 
 
 heir as special occupant, there is neither curtesy nor dower 
 of it. 
 
 With respect to forfeiture and waste, the acts of tenant 
 pour autre vie are controlled by the same principles as those 
 which apply to the acts of tenant for life ; for a statement of 
 which we beg leave to refer to the next Chapter. 
 
 [That an estate pour autre vie is subject to the operation 
 of the rule in Shelly's case, see Loiv v. Burron, 3 P. Wms. 
 263. Ex parte Sterne, 6 Ves. 156.]
 
 80 
 
 CHAP. V. 
 
 OF AN ESTATE FOR LIFE. 
 
 Litt. s. 56,57. By an estate for life, generally, is understood 
 2 fl/. Com. 120. an estate for one's own life, and not for the life of 
 
 1 RoUe\ Ah. , 
 
 Q\^.iBac.Ah. another. 
 
 5o8. 10 Vin. 
 Ab. 287. 4 Co. 
 
 Tcruise'sDig. L\ke that, howevcr, it cannot* be made to 
 commence in futuro, it being an estate o{ free- 
 hold ; and for the same reason, [before the statute 
 7 & 8 Vict. c. 76, it must have been] created 
 or transferred by livery of seisin {secundum 
 formam Chartce), lease and release, bargain and 
 sale enrolled, or be surrendered to him in re- 
 version. t 
 
 * [It cannot by conveyance operating at common law, but 
 it may be limited in futuro through the medium of the Statute 
 of Uses.] 
 
 f We beg to refer the student to our Notes in the preceding 
 Chapter, " Estate of Freehold." 
 
 Lord Coke mentions {Co. Litt. 42 a.) several instances of 
 interests of uncertain duration, the tenants of which may, in 
 pleading, allege they are seised generally for the term of 
 their lives, viz. an estate to a woman dum solafuit, or durante 
 viduitate, or quamdiu se bene gesserit, or to a man and woman 
 during coverture, or so long as the grantee shall dwell in
 
 OF AN EST.ATR FOR LIFE. 81 
 
 [But now, by the 2ntl section of the above 
 statute, a freehold may be created or conveyed by 
 a deed without tlie accompaniments of livery 
 of seisin, lease for a year or enrolment.] 
 
 such a house, or so long as he pay ten pounds, or until he 
 be promoted to a benefice ; and another instance is also men- 
 tioned in the note 243, Lib. 1. viz. to B. till A. makes /. *S'. 
 bailifFof his manor, 
 
 Mr. Watkins has not treated on the modes by which an 
 estate for life may be destroyed in the lifetime of the tenant, 
 nor on the incidents annexed to the estate for life. It will 
 therefore, be necessary to say a few words on these points. 
 
 An estate for life [previously to the 7 and 8 Vict. c. 76, 
 might have been] forfeited by any act which divested, or 
 displaced the remainders, or reversion, as by feoffment, [and 
 before the statute 3 and 4 Will. 4, c. 74, for abolishing fines 
 and recoveries by] fine " sur conuzance de droit cum ceo,'" &c. 
 by tenant in possession, or common recovery, or by an asser- 1 Leo. 40. 
 tion of ownership on record, as by a fine " stir conuzance de 
 droit come ceo,'' &c., by tenant for life in remainder, or by 
 the acknowledgment on record of the ownership in another, Co. I.itt. 252. 
 as by the acceptance of a fine " sur conuzance de droit come 
 ceo," &c., from a stranger. But if the person having an 
 immediate estate of inheritance in remainder concurred in Bredon's case, 
 the fine, or, it seems, if a person, having either an immediate 
 or remote estate of inheritance in remainder, concurred in 
 the common recovery : or if the tenant for life himself had a Smith v. Cluf- 
 remote estate of inheritance in remainder, and suffered a ^'^p[ 7387 " 
 common recovery, there would be no forfeiture, nor would ^^'^ ^'^'^ '''"'" 
 
 hatn's case, 
 
 there be a forfeiture in any case if the estate were equitable, l Co. 3. 
 And the forfeiture by fine also would have been saved if the HuntwBimme. 
 fine was in the concord confined to the life of tenant for life. 
 A conveyance by lease and release, bargain and sale enrolled, 
 or covenant to stand seised, being what the law terms innocent 
 conveyances did not work a forfeiture, although professing to 
 
 G
 
 82 OF AN ESTATE FOR LIFE. 
 
 carry the fee, for they passed no more than the releasor, 
 
 bargainor, or covenantor, might lawfully part with, nor would 
 
 Cb.Zj«.233,b. a ^rran^ work a forfeiture. An estate for life might be also 
 
 Piggoty. Sails- passed hj fine '^ sur coticessif,^' which. worked no forfeiture. 
 
 bury, 2 Mod. ^/^j,^ j^. might be surrendered by fine " sur conuzance dc droit 
 
 Smithey Abett ^f^^^tum." But, if tenant for life in possession levied a fine 
 
 2 Lev. 202. « sur conuzance de droit come ceo, Sfc." to tenant for life in 
 
 remainder, it was a forfeiture of both their estates. 
 
 [But now by the 7 & 8 Vict. c. 76, s. 7, it is enacted that 
 
 no assurance shall create any estate by wrong, or have any 
 
 other effect than the same would have if it were to take 
 
 effect as a release, surrender, grant, lease, bargain and sale, 
 
 or covenant to stand seised, as the case may be.] 
 
 As incidents annexed to his estate, tenant for life may cut 
 
 underwood, Co. Litt. 53, a., and work open mines, and new 
 
 Claveringv. shafts or pits to pursue the old veins. He may also work 
 
 2 P. Wms. 388, ^"7 niines lawfully opened by a preceding tenant in tail, 
 
 although subsequently to the settlement under which he 
 
 Co. Litt. 53, b. claims. But if he open a new mine it is waste. He may also 
 
 [\Cruise'sDig. fell timber for repairs, but not otherwise; and if he sell the 
 
 4 -j • *^' ' • • timber, and apply the money in repairs, it is waste. He is 
 
 Ibid. entitled to reasonable estovers, viz. housebote, ploughbote, 
 
 and haybote, without assignment, unless he is restrained by 
 
 covenant or agreement : housebote is a sufficient allowance of 
 
 2 Comm. 35. wood to repair and burn in the house ; ploughbote, sufficient 
 
 wood for making and repairing instruments of husbandry ; 
 
 and haybote, for repairing fences, &c. He is bound to keep 
 
 Co. Litt. 53, b. the buildings in repair, and to repair the banks and walls 
 
 against the sea and rivers. And if he convert one species of 
 
 Perroity.Per- land into another, it is waste, Co. Litt. 53, b. And cutting 
 rott, 3 Atk. 95. ... 
 
 2 Inst. 300. down decayed timber is also waste. 
 
 By the common law no action for waste would lie against 
 the grantee for life or years. But by the statutes of 52 
 Hen. 3, c. 24, and 6 Edw. 1, c. 5, full damages might be 
 recovered by the owner of the inheritance for waste com- 
 mitted, and the place wasted recovered. But no ohe was
 
 OF AN ESTATI-: FOR LIFE. 8-3 
 
 entitled to an action for waste, except the person who had the 
 
 immediate estate of inheritance, or reversion, and to whose 
 
 disherison the waste was committed; and if, therefore, there 
 
 were au estate for life, interposed between the estate in 
 
 possession and the first estate of inheritance, and the tenant 
 
 in possession committed waste, and died in the lifetime of the 
 
 intermediate remainderman, the action for waste was lost for 
 
 ever. But if the intermediate remainderman died, or sur- Co. Z,j«. 53, b. 
 
 rendered his estate, the action would lie : nor would an Moore, 387. 
 
 intervening estate for years prevent the remedy. But no one 
 
 could maintain the action who had not an estate of inheritance Co. Liu. .")4. 
 
 at the time when the waste was committed. gn^" ' 
 
 The action for waste had, however, [long before its abolition 
 by the statute 3 & 4 ^. 4, c. 27, s. 36 — 38,] given way to 
 an action on the case in the nature of waste, which may be 
 brought by any one in remainder, or reversion for years, life 2 Savnd. 252, 
 or inheritance: and the Court of Chancery will grant an rerrott, siwra. 
 injunction on a bill by tenant for life in remainder ; and if 
 tenant in possession sever the timber from the inheritance, 
 the first person in esse, having an estate of inheritance, may Uvedail v. 
 maintain trover, notwithstanding there are intermediate con- ^^\} ,-.q 
 tingent estates ; and the Court of Chancery will order timber WhUfiehl v. 
 
 . Bewit, 2 P. 
 
 to be felled, if for the benefit of the estate; and will also mns.'-lM).' 
 interfere to prevent collusion between the tenant for life and a "l/*' [''«*• 268. 
 
 '^ Garth v. Cot- 
 
 remote remainderman to the injury of unborn children ; and ton, 1 Ves. 524. 
 will interfere if the tenant for life has himself the next vested j)„/ig „f b,,/- 
 estate of inheritance. '««' -^ ^- "'""• 
 
 2(58, n. 
 Tenant for life without impeachment of waste, may open Smythe v. 
 
 mines and fell any timber on the estate, except ornamental 25] '^'" 
 
 timber, and convert it to his own use, and is entitled to the 
 
 timber of building blown down, or to timber blown down on 
 
 the estate ; and may grant leases out of his interest, without Lewis BowWs 
 
 impeachment of waste : but neither he nor his lessee must case, 11 Co. 84. 
 
 * /» . Jones, 01 . 
 
 maliciously waste the estate by pulling down houses, &c. fane v. Loni 
 for if they do, the Court of Chancery will grant an injunction, 2 Fem. 738. 
 and they are bound to keep the houses in repair. Partenche v 
 
 •^ V V Powlett, 2 Atk. 
 
 G 2 383. Co. Lilt. 
 
 55.
 
 84 
 
 OF AN ESTATE FOR LIFE. 
 
 Tenant for life, or his executors, and his under-tenants, are 
 
 entitled to emblements, in all cases where his estate is deter- 
 
 r7o,''?/ed' ™^"f by the act of God: but if it be determined by his own 
 
 • act he will not be entitled to emblements ; and it is doubtful 
 
 whether, in such case, his under-tenants will be entitled to 
 
 them.
 
 85 
 
 CHAP. VI. 
 
 OF AN ESTATE IN DOWER. 
 
 Dower is an estate y^r life, which the law 2Bi.C01n.v29. 
 
 , . , - 'IIP I '^'"- ^- ' ' <^- '^i 
 
 gives the widow [married beiore or upon the ^theCommen. 
 
 1st day of January, 1834] in the third part of 2 Bac.Ab.^bG. 
 
 the lands and tenements of which the husband 3 comyn'sDig. 
 
 was solely [and legally] seised, at any time during ^,^" loL^^th 
 
 the coverture, of an estate in fee, or in lail, in ^ 
 
 possession,* and to which estate in the lands and 
 
 * The requisites to doWer, says Lord Coke, are marriage, Co. Liu. 32, a. 
 seisin, and death of the husband. The widow is entitled to 
 dower of the corporeal and "incorporeal hereditaments of <w/j ^/ / 
 
 which her husband dies seised, and a seisin in law is suffi- c<>. Litt^\,* 
 cient ; for if land descend on the husband, and he die )'?7-.»*''» ^ //» 
 
 seised before actual entry, the widow shall be endowed: but : *y^ ■^ 
 
 a seisin there must be in deed or law during the coverture : 
 and, therefore, she shall not be endowed of a remainder or 
 reversion expectant, on an estate of freehold granted before Cu. Lin. '■2, .i. 
 marriage : but she shall, if expectant on a term for years, 
 and shall have a third part of the reversion and of the rent. 
 Nor shall she be endowed of a mere right or possibility ; nor 
 of a seisin for an instant, as if there were two joint tenants, 
 and one make a feoffment in fee, Co. Litt. 31, b. ; nor of 
 lands both given and taken in exchange, but she shall have 
 her election ; nor of dos de dote, that is, of lands which 
 descend on the husband, and are assigned to his mother in 
 dower, for the son's estate is defeated by the assignment, and 
 
 -H
 
 S6 OF AN ESTATE IN DOWER. 
 
 tenements the issue of such widow iniyht, by possl- 
 hility, have inherited.'^ 
 
 [By the statute 3 & 4 PK. 4, c. 105, a widow, 
 (not being an alien) married after the 1st day of 
 January, 1834, is dowable out of all real heredi- 
 taments to which her husband was at the time 
 of his death solely entitled, for any estate of 
 inheritance in possession, at law or in equity 
 (s. 2, 3) ; and not absolutely disposed of by his 
 will (s. 4) ; nor exempted from dower by liis 
 declaration, in any deed (s. 6) or will (s. 9) ; 
 or by devise to her of hereditaments of which 
 she would otherwise be dowable (s. 9) ; never- 
 
 he has but a reversion expectant on a freehold : but if the 
 
 son took as a purchaser, or his wife was first endowed, in 
 
 Hitchens V. either case the wife shall be endowed on the mother's death ; 
 
 2 'v -^^AQ^ ^"^ ^^^ ^^^^ ^^ ^^* '^^ ^*^^^ ^^'^ "^^^ ^PP^J' uoless dower be 
 
 actually assigned to the mother. The widow shall not be 
 
 Co. Liu. 31, a. endowed of an estate of which her husband is mortgagee in 
 
 fee, nor if he be an alien, nor if he be attainted of treason, 
 
 5 Edward 6, c. 11. But she shall not be barred, if he be 
 
 attainted of felony only, I Edward 6, c. 2, and her dower is 
 
 Co. Lilt. 32,h. not lost by a divorce a. niensd et tJioro for adultery. But it 
 
 Ibid. is, if she quit her husband's house with the adulterer, unless 
 
 (o Lttt.o\,a. the husband be reconciled ; and the widow of an idiot, or 
 
 sea vide lo G. 
 
 2, c. 30. one non compos mentis, is entitled to dower. 
 
 * This must be attended to ; for if lauds be limited to a 
 
 man and the heirs of his body by his then wife, and she die, 
 Liit. Sec. 53. leaving her husband, and he marry again, the second wife 
 
 shall not be endowed, for her issue could not by possibility 
 
 inherit.
 
 OF AN ESTATE IN DOWEH. 87 
 
 tlieless, the debts and liabilities of the husband 
 and his partial dispositions by will or otherwise 
 taking precedence (s. 5, 7, 8). 
 
 This estate, though created by act of law, 
 may be conveyed or prevented by the act of the 
 party. 
 
 Before assignment* and actual entry, the free- 
 hold is not in the widow ; and, by consequence, 
 the mode of passing her claim differs before and 
 after entr3^ 
 
 Before entry she has only a right, which must 
 be conveyed [i. e. extinguished] by release, and 
 that to tlie person in possession of the lands, [or 
 rather to the person having the freehold iu 
 possession of the lands,] as to him only a release 
 of right can be made. — After entry, the pos- 
 
 * The widow's third must be assigned, for she cannot by 
 the common law enter into her dower before assignment ; Co. Liu. 32 b. 
 and, therefore, if the heir refuse, she is driven. to lier writ of 
 dower, and the sheriff must assign her dower by metes and 
 bounds, unless the husband be seised as tenant in common, 
 when she shall have a third part of the undivided part. If i^j^ gg^. 44 
 the inheritance be entire, and such of which an assignment 
 of dower cannot be made, she shall have the third part of the 
 profits, as of a fair, an office, &c., and the third presentation 
 to an advowson. After an assignment made, the widow may q, j^^i 32 a. 
 enter, and she shall be in of the estate of her husband ; and 
 paramount all incumbrances, mortgages, or leases made by 
 him [during the coverture. The widow is entitled to have 
 a third in value of all the lands, estimating the value as it
 
 ^S OF AN ESTATE IN DOWF.R. 
 
 session or freehold of her third is in herself; 
 and, consequently, the proper mode of con- 
 veyance, to the person immediately in reversion-wxW 
 then be a surrender ; and to a stranger it may 
 be conveyed by feoffment, with livery (secvndum 
 formam chartce)^ lease and release, or bargain 
 and sale enrolled, [or by any other mode of 
 conveyance, by which a freehold may be trans- 
 ferred . ] 
 
 l-n^Athld'^' During the life of her husband, the wife might 
 %!''■ l!^- ^r^' Fpi'eviously to the statute 3 & 4 W. 4, c. 74] 
 
 i Iff. liec 00. •-* '' -" 
 
 //'^' ^^'v pass, or rather bar, her right to dower, by fine 
 Co Lift \-2',a. or recovery: which were matters of record; 
 
 P/owd. 5 '4. ^ -^ ' ^ ' 
 
 Karey.suuw. and in the process of which she was secretly 
 examined, to prevent or remove the suspicion 
 of any compulsion in the husband. [And now 
 she may, with the concurrence of her husband 
 by deed in conformity with the requirements of 
 the above statute, s. 77, 79, &c., bar her right of 
 dower.] 
 
 And as dower [of a woman married on or 
 before the 1st day of January, 1834J is claimable 
 out of tliose lands and tenements of which the 
 husband was seised at any time during the 
 
 was at the time of tiie assignment, although they had been 
 conveyed away during the husband's life, and improved in 
 value by buildings erected after the conveyance and before 
 the assignment, Doe v. Givmnell, 1 Ad. ^- EL, N. S. 682,]
 
 OF AN ESTATE IN DOWER. 89 
 
 COVERTURE, tlio alienation of the husband alone 
 after marriage will not bar her claim ;* and, 
 therefore, it is necessary that care be taken in 
 conveyances by a married man that the widow 
 [so circumstanced] be effectually precluded from 
 her dower (if entitled) by her joining [with her 
 husband in a deed duly acknowledged according 
 to the mode prescribed by the above statute.] 
 
 Again, as dower is only claimable in such 
 lauds and tenements of which tlie husband was 
 aolelij seised during the coverture, in fee simple 
 or fee tail in possession,'\ several modes present 
 themselves by which dower may be prevented or 
 barred. 
 
 * In this respect dower [of a woman married upon or 
 before the 1st Jan. 1834,] differs from the widow's freebench 
 in copyhold or customary estate ; for in general she is only 2 v^s. *. 631. 
 entitled to freebench out of those copyhold or customary 
 lands of which her husband died seised. But by the special 2 Watk. Cop. 
 custom of some manors [as that of Cheltenham, in Gloucester- ^^' ^'^' '*' 
 shire,] the widow is entitled to freebench of the lands of 
 which her husband was seised at any time during the cover- 
 ture, as in the case of dower at common law. \_Riddell v. 
 Jenner, 10 Bing. 29. Doe d. Riddell v. Gwinnell, 1 Ad. Sf 
 El, N. S. 682.] 
 
 f [The law with respect to the husband's being solely 
 entitled in possession, is the same under the statute 3^-4 
 W. 4, c. 105, but a legal seisin is not requisite : a widow 
 married since the 1st Jan. 1834, is dowable out of equitable 
 estates (s. 2, 3 :) and therefore if an estate is conveyed to 
 the husband, and another in fee, but in trust for the husband 
 and his heirs, his wife will be dowable.]
 
 90 OF AN ESTATE IN DOWER. 
 
 2Bro.c.c.630. ^,^(j jj^ iiiQ flrsf place, rirrespective of the 
 
 L HI tis V.Curtis. * * 
 
 Butseeaw^e, recciit statutejl it is requisite to dower that the 
 
 Introd p. xvil. 
 
 and I rai!/<. husband be seised ; and, consequently, one mode 
 
 Copyh. 79. 
 
 of preventing dower is by creating a trust ; for 
 the Courts of equity have not permitted the widow 
 to claim the dower of a trust estate.* 
 
 But this mode is objectionable, as it puts the 
 legal freehold out of the husband. 
 
 Again, it is requisite to dower that the husband 
 be soleli/ seised ; and, therefore, dower is some- 
 times barred by conveying the estate to the 
 husband and another person in joint tenancy ; in 
 which case, as the husband was not solely but 
 jointly seised, the dower does not attach [during 
 the joint lives of the husband and his trustee.] 
 
 But this mode is also objectionable ; for if the 
 stranger or trustee die during the life of the 
 husband, the husband will become solely seised, 
 and so the end of such conveyance be defeated ; 
 [unless the husband shall have already parted 
 with the estate;] and if the trustee survive the 
 husband, tlie legal estate will be outstanding. 
 
 * This was rather a singular decision of the Courts of 
 equity : prior to the Statute of Uses it seems there was 
 neither dower nor curtesy of a use : trusts are now nearly 
 what uses then were ; and the Courts of equity have allowed 
 curtesy of a trust, but have excluded dower. There seems 
 no sound principle for the distinction : it has been generally 
 disapproved, [and the law is now altered as before noticed.]
 
 OF AN ESTATE IN DOWER. 91 
 
 A third requisite to dower is, tliat the husband 
 luust be legally seised of an estate in fee simple 
 or fee tail in possession. Therefore, a third mode 
 is to put the fee in remainder;* as by limiting 
 to the husband for life, with remainder to another 
 person during the life of the husband, f with 
 remainder to the husband in fee or in tail. In 
 this case the intervening estate to the other person 
 prevents the remainder over from being executed 
 in possession in the husband ; and he is only 
 seised in possession of the estate for life. 
 
 So if the estate be limited to the husband and 
 
 * But to effect this, the intervening estate should be a CordaVs case, 
 vested estate of freehold: for neither a terra for years, nor, ^o.Eliz.316. 
 it seems, a contingent estate of freehold, which never arises, Hooker, Rep. 
 and the possibility of which is determined by the death of the 13, 
 husband, will prevent the dower. 
 
 f It may at first view surprise the student that the 
 limitation to the trustee during the life of the tenant for life, 
 as proposed by 3Ir. fVatkins, should consistently with the 
 principle mentioned in the preceding note, have the effect 
 of barring the wife's right of dower. Prima facie it seems 
 little more than a mere possibility of an estate or right of 
 entry: but the case of Dormer v. Parkhurst, 18 Viner, 413, 
 decided that a similar limitation to trustees to preserve con- 
 tingent remainders was a good vested estate of freehold, on 
 the principle that on a grant for life the grantor has an 
 interest remaining in him to enter on the estate in case of 
 forfeiture ; which interest when conveyed to trustees, is a 
 remainder or legal estate ; and the case of Duncomb v. 
 Duncomh, 3 Lev. 437, is in point, that under such a limitation 
 as the present the dower is prevented.
 
 92 OF AN ESTATE IN DOWER. 
 
 a stranger for life, in joint tenancy, with re- 
 mainder to the husband in fee or in tail, the 
 husband shall hold the estate for life in joint 
 tenancy with the stranger ; and the remainder 
 will be only executed sub modo, and not in pos- 
 session. But this manner of limiting the estate 
 is objectionable, for the reasons before noticed.* 
 
 * It will be observed, that the several modes before men- 
 tioned prevent the right of dower /rom attaching : but there 
 is a mode of limitation (formerly in practice) by which the 
 right to dower attached on the estate, subject (as it was 
 apprehended) to be divested in the husband's lifetime. This 
 was by limiting the estate to such uses as the husband should 
 appoint, and in default thereof to him in fee; until the exer- 
 cise of the power, the husband was actually seised of an 
 estate of inheritance in possession, on which the right to 
 dower attached. On the execution of the power, it was 
 considered that as the appointee came in, as if named in the 
 deed creating the power, as hereafter explained, he was in 
 paramount the right of dower in the wife, and consequently 
 held the estate discharged of the dower. If the power was 
 not exercised, and the husband died, leaving the wife, her 
 dower took effect. On the efficacy of this mode of limitation, 
 considerable doubts were, however, entertained, on the prin- 
 ciple, that dower having attached, it could not be defeated 
 by an act of the husband alone ; and in Cox v. Chamberlain, 
 4 Tes. 637, Lord Alvaydey inclined to favour the doubt. In 
 Maundrell v. Maundrell, 7 Ves. Jan. 567, the Master of the 
 Rolls held the power itself wholly nugatory, and nothing 
 distinct or different from the fee. But on a rehearing before 
 Lord Eldon, Chancellor, 10 Ves. Jun. 246, he expressed a 
 clear opinion that the power might subsist with the fee. 
 But as he also held that the power was not in that particular 
 case well exercised, the question whether an exercise of it 
 would defeat the wife's dower was left undecided; and it
 
 OF AN ESTATE IN DOWER. 93 
 
 Where the husbtmd was married on or before ^""; ." f ';?,*" 
 
 C(i. Lttt.Si9,h. 
 
 the 1st day of January, 1834, the best way of i;>^"r»>''s Cont. 
 
 J ► ' •> Htm. ^- Lrec. 
 
 barring; the wife's dower is to limit the estate i)<v. tiux ed.. 
 to such uses as the husband shall appoint, which 
 will give him the power over tlie whole fee ; so 
 that he may pass it to a purchaser without the 
 concurrence of the wife or others ; and the 
 
 was the universal practice, we believe, in the case of such a 
 limitation, to require a fine. 
 
 [Since the preceding annotation was published, the Court 
 of K. B., upon a case sent by Sir John Leach, V. C, for 
 their opinion, decided that the appointment defeated the 
 wife's dower, Bay v. Fung, 5 Bar. 8)- Aid. 561, S. C. 5 3Iad. 
 310, also MoreAon v. Lees, cited 5 Mad. 318, and 2 Sugd. on 
 Powers, 35, Ed. 6. la consistency with the above decision, 
 the same Court determined that a judgment creditor's lien 
 upon the land was defeated by a similar exercise of the 
 power. The case was Doe v. Jones, 10 Bar. Sf Cress. 459 : 
 there by lease and release, in 1826, lands were conveyed to 
 such uses, &c. as A. should by deed appoint, and in default 
 of and until appointment to the usual limitations to bar dower. 
 In December, 1827, a judgment creditor sued out a writ of 
 elegit upon his judgment, which in Michaelmas Term, 1822, 
 had been entered up against A. In March, 1827, A. ap- 
 pointed the lands in question to B. for 500 years, for 
 securing 4000/. and interest : the Court decided that the 
 appointment to the mortgagee defeated the judgment cre- 
 ditor's lien, and the law was the same notwithstanding the 
 mortgagee had notice of the judgment, Skeeles v. Shirley, 
 8 Sim. 153, affirmed 3 Myl. Sf Cr. 112. But now by stat. 
 1^2 Vict. c. 110, s. 13, judgments operate as a charge 
 upon real estate, notwithstanding the power, so that the 
 judgment creditor's lien will not be defeated by an exercise 
 of his power as in the case above cited.]
 
 94 OF AN ESTATE IN DOWER. 
 
 purchaser, on the execution of the power, shall 
 be in from the original conveyance, and so 
 paramount the claims of the wife ; a?id, in default 
 of execution, to the husband for life, with re- 
 mainder io A. B., his executors and administrators, 
 during the life of the husband, with remainder 
 to the husband in /ee,* so that the limita- 
 
 * The student will observe that, under the limitation of 
 uses, here recommended, the right of dower never attaches ; 
 and, therefore, whether the power was exercised or not, the 
 widow's claim is equally precluded. But it may be then 
 asked, what is the use of the power ? Its object seems to be 
 to meet the case of the trustee not concurring in the sub- 
 sequent conveyance ; for as the appointee comes in above the 
 limitations, they are all of them on the exercise of the power 
 defeated as if they had never existed, and consequently no 
 part of the legal estate is left outstanding. If the trustee 
 should not concur, and there was no power of appointment, 
 the purchaser would, under the conveyance, take a legal 
 estate for the life of the grantor, and a trust estate in re- 
 mainder for the life of the grantor, with a legal remainder in 
 fee ; and thus part of the legal estate (viz. the legal remainder 
 in the trustee) would be left outstanding. The power, 
 therefore, is still inserted ; and ex abundanti cautela it is 
 customary, even where the trustee does not concur, as well 
 to exercise the power as to convey the interest. The student 
 should, however, bear in mind, that an evil may at times 
 arise from the exercise of the power ; for covenants real will 
 not run with the land, unless there be a privity of person and 
 a privity of estate : now the appointee comes in paramount 
 the appointor, and consequently there is no privity of estate 
 between them, and therefore a covenant entered into by the 
 appointor will not run with the land so as to bind his 
 appointee, who will come in above him, and hold the land 
 discharged of the covenant, which will be personally binding
 
 OF AN KSTATK IN DOWRU. 9o 
 
 tion over in fee will be m remainder ; and h}' 
 limitinj^ the intermediate estate to the executors 
 and administrators of A. B., it will be more likely 
 
 only on the appointor and his representatives. Such was the 
 
 case oi Roach v. Wadham, 6 East, 289. A., on the purchase 3 Pies. Ahst. 
 
 of an estate, took a conveyance to uses to bar dower, and Touch. 177 n 
 
 covenanted that he, his heirs and assigns, would pay the ^ ^^''i'- ^- ^ ^• 
 
 ^ ' i' J 79, ed. 9. 
 
 vendor a certain rent. He afterwards sold to B., and 
 appointed the use to him ; and the Court held B. was not 
 bound as the assignee of A. to pay the rent. In a similar 
 case it will be therefore advisable to insist on the purchaser 
 taking a conveyance without a power of appointment, so that 
 his covenants may run with the land, and bind his assignees. 
 A difficulty may also, on the same principle, we apprehend, 
 occur in the covenants for the title ; for, according to the 
 modern practice of exercising the power of appointment and 
 appointing to similar uses in bar of dower, there may be no 
 actual conveyance of the ownership for a century ; for the 
 student must remember that on the appointment of an use, 
 the seisin is undisturbed, and remains in the original releasee 
 or feoffee to uses, and each successive appointee comes in 
 under the original seisin, so that there is no privity of estate 
 between any of them, each set of covenants being personal 
 between the covenanting parties, and not running with the 
 land. This is a considerable inconvenience ; and it may be 
 worth the consideration of the Profession, whether the evils 
 which may attend the exercise of the power do not more than 
 counterbalance any advantage which can be derived from it ; 
 and whether it might not be more advisable to omit the 
 execution of the power, and to take in all cases a conveyance 
 of the interest, even although so minute a part of the legal 
 estate as that vested in the trustee to bar dower should be 
 left outstanding. And where the concurrence of the trustee 
 can be obtained, no advantage is gained by the appointment.
 
 96* 
 
 OF AiN ESTATE IN DOWER. 
 
 to prevent its vesting in a minor, in case A. B. 
 die before the husband ; and the estate to ^. B. 
 See «n^e, ch. 4, being Only an estate pour autre vie, may (not- 
 withstanding its being a freehold) with equal 
 propriety be limited to his executors and adminis- 
 trators as to his heirs, as they will not take by 
 descent, but as special occupants.* 
 
 Co. Litt. Z6, &. A woman ralthoui>:h married on or before the 
 
 & b. 2 Bl. Com. 1 
 
 137. 1^**. 563. 1st January, 1834] may also be precluded from 
 
 Herveyy.Her- ... * . i i p i • i i 
 
 t>ey,n. (i)to clamiing her dower in any lands or winch the 
 and the books intended Imsband shall be seised during the 
 
 tnGrG rGiGrrGcl 
 
 to. Case of covcrturc, by accepting a jointure according to 
 nZry^k Bro. tlic statutc of Hen. 8. So she shall be barred 
 muiamsv. ' ^^ equity by the acceptance of other conside- 
 545"^' **' rations, such as do not fall within that statute, as 
 
 a yearly sum of money, though not charged on 
 
 any specific fund.'}" 
 
 * [In a conveyance to a person having a wife married on 
 or before the 1st Jan. 1834, the limitation to the trustee to 
 bar dower need not extend beyond the joint lives of the 
 husband and his present wife ; when a conveyance is made to 
 a man married after that day, the limitation may be to him 
 in fee, the conveyance stating the fact of his marriage, and 
 containing a short declaration that the lands conveyed shall 
 not be subject to the dower of his present or any future wife.] 
 Co. Liu. 3G, a. j- A strict legal jointure is described by Lord Coke to re- 
 quire six things, viz. the provision for the wife must take 
 effect in possession or profit immediately after the husband's 
 death ) it must be for the term of her own life or greater 
 estate : it must be made to herself and no other for her ; it 
 must be made in satisfaction of the whole, and not of part, 
 of her dower ; it must be either expressed or averred to be
 
 OF AN ESTATE IN DOWER. 
 
 97 
 
 Ii there be any existing term which was created Jo^"^'?/^.''"'^ 
 before niarriaoe, there shall, in certain cases, be MaundreU\. 
 
 Butler a Notes 
 ~~ ' ~~"~~~ ~~ to Co. Litt. 
 
 in satisfaction of dower ; and it may be made either before or 
 after marriage : but if made after marriage, she may waive it, 
 and claim her dower. If the jointure is made before marriage 
 the wife will be barred, whether adult or infant, even if she 
 be not party to the deed of jointure. But 3Ir. Cruise con- 
 ceives. Dig. 4th ed. Vol. I. p. 200, s. 39, that she or her 
 guardian (if under age), must have notice of the jointure, or 
 else she will have relief in equity. She may be also barred Dmry v. 
 by a mere equitable jointure : but if she be an infant, the pro- CariuheiTv'^' 
 
 vision must be as certain as her dower ; and she may be Caruthers, 
 
 .4 Bro. C. C. 
 barred of dower by provision by the will of her husband, if 500. 
 
 the intent be expressed or clearly implied (but not otherwise) 
 
 and she elect to take it in lieu of dower. See Mr. Hargraves 
 
 note, Co. Litt. lib. i. n. 227, 2 Bop. Leg. 530—547, Ed. 
 
 1828. 
 
 By the statute of the 1 1 Hen. 7, c. 20, women seised of 
 
 estates tail of the gift of their husbands are prohibited from 
 
 alienating their estates, after the death of their husbands, 
 
 without the concurrence of the heirs next inheritable, or of 
 
 the persons who next after the death of the wife should have 
 
 an estate of inheritance in the premises. But it provides that 
 
 a woman may, notwithstanding, part with the estate for her 
 
 own life only. In relation to this statute it has been deter- Devnis'^ tasp, 
 
 mined, that if the estate be limited to the wife in fee, or in r/'^C' - ■ ■ ^• 
 
 ' ' Hughs V 
 
 tail general, or if the remainder be limited to a stranger, and Cluhb, Cum. 
 no inheritance be reserved to the husband, or his heirs, or if pitfall, Cro. 
 the lands be of copyhold tenure, 1 Siderfin, 41 — 73, the Eliz 2, and 
 
 _ ^•' "^ 'see Sugdtns 
 
 cases are not within the statute ; a trust estate and equity of Note, Gilbert, 
 redemption are, however, both within it : [and the powers of ^ Jackson '*" 
 disposition given by the statute 3 & 4 ^. 4, c. 74, s. 16, are 2 Vem. 4by. 
 not extended to married women within the statute 1 1 JIe?i. 7, 
 c. 20, except with the assent of the husband.] 
 
 [But where the husband purchases an estate, and the whole 
 H
 
 98 OF AN ESTATE IN DOWER. 
 
 a cesset executio during the terra. But it is said 
 that there must be an actual assignment of the 
 
 consideration is paid by the wife's sister, on condition that 
 the estate should be settled to the use of the husband and 
 wife in tail, this, though within the letter, is not within the 
 equity of the above statute ; and the wife may, after the 
 death of the husband, alienate. Watkins v. Leiois, 1 Russ. 
 SfMyl. 377.] 
 
 The seventh section of the statute of 27 Hen. 8, c. 10, 
 enacts, that if the wife be lawfully evicted from her jointure 
 lands, she shall have her dower out of the remaining lands of 
 her husband : and in reference to this enactment Sir Ed- 
 ward Sugden seems to have fallen into a mistake, in his 
 p. 317, 6tbed. earlier edition of his treatise on the Laio of Vendors and 
 see p. 359, 9th p^j.chasers, which it may be important to explain. He first 
 noticed that some gentlemen required a fine on the purchase 
 of lands where the wife had accepted an equitable jointure, 
 which practice, he truly says, was discountenanced by the 
 majority of the Profession ; and that it seemed clear, if the 
 wife should prosecute her writ of dower at law, equity would 
 protect the purchaser, and condemn her in costs. He then 
 remarked, that it was objected by the advocates for a fine, that 
 if the fund on which the jointure was charged should be 
 evicted from the jointress, she could claim her dower. And 
 he added, that this objection seemed equally to apply to a 
 legal jointure ; and he stated the seventh section of the statute 
 as his authority. He then proceeded to notice that when his 
 first edition was published, he was not aware of any case in 
 which the doctrine had been expressly established. But he 
 remarked, it was never attended to in practice ; and he had 
 never heard the objection taken, which made him apprehen- 
 sive he had fallen into an error : the point could not, he 
 thought, so long have escaped notice. But he concluded 
 that, unless in the case of a legal jointure a purchaser could 
 call for the title, he could not in the case of an equitable
 
 OF AN ESTATf-: IN I)0\VI<:iJ. 99 
 
 term to protect a purchaser against the dower of 
 the widow of the vendor : for it is said also that 
 
 jointure ; for equity Avould act in strict analogy to legal 
 jointures. And he adds, that since the publication of his first 
 edition he had met with Maunsfield''s case, Hargrave's notes 
 to Co. Litt. 33, a. n. 202, which had expressly decided, in 
 the case of a legal jointure, that the wife evicted from her 
 jointure lands was entitled to dower ; and it was conceived 
 that equity must in this respect follow the law; and the 
 author's impression, therefore, was, that where an estate 
 would be subject to the dower of the vendor's wife, if she 
 were not barred by a jointure, whether legal or equitable, 
 the vendor must either procure his wife to levy a fine of the 
 estate at his own expense, or produce a satisfactory title to 
 the jointure lands. 
 
 The opinion above hazarded has, we fear, led to much 
 unnecessary expense ; and gave foundation to a practice for 
 calling for a fine, or the title to jointure lands, in cases in which 
 the demand could not be supported. [It is, however, omitted 
 in the ninth edition of Sir Edward Sugdeti's Treatise.'] 
 The practice in the Profession, prior to the remarks we are 
 animadverting upon, was, that a distinction should be taken 
 between the case of a provision made by the husband by force 
 of the statute without the wife's concurrence, which would be 
 strictly ex provisione viri, and which would preclude her from 
 dower equally as if she had concurred : and the case of a 
 provision made for her before marriage, with her consent, 
 which, if she were adult, would arise ex contractu : and that, 
 in the first instance, if she was evicted from her jointure lands, 
 she would be entitled to dower by the provision of the statute : 
 but, that in the second instance, the transaction was grounded 
 on a valuable consideration, and that whilst the jointure 
 existed she had no legal claim to dower ; and, if she were 
 evicted, a Court of equity would enforce the contract, and 
 protect the other estate of the husband from her legal claim, 
 
 H 2
 
 100 OF AN ESTATE IN DOWER. 
 
 a term, while outstanding, is as much attendant 
 in equity upon dower as upon the remaining 
 interest in the inheritance.* 
 
 and that it was her duty before marriage to inquire into the 
 title of her jointure lands. 
 
 We conceive this distinction to be sound ; and it will 
 account for that apparent want of precaution with which Sir 
 E.Sugden seems rather to charge the Profession, when he says, 
 he had never heard the objection taken, and he was appre- 
 hensive he had fallen into an error, which it appears to us he 
 had. And we certainly think, that in all cases in which an 
 adult, on her marriage, accepts a provision legal or equitable 
 for her jointure, and in bar of dower, she will be precluded 
 by her contract from claiming dower, even if she be evicted 
 from her jointure, and that a purchaser had not in any such 
 case a right to require either a fine or the production of the 
 title to the jointure lands, [neither can he now, that fines are 
 abolished, call for the wife's concurrence in a deed acknow- 
 ledged by her according to the form prescribed by the statute 
 3 .^ 4 W. 4, c. 74.] Maunsfield s case, before alluded to, is 
 briefly stated ; and the circumstances under which the judg- 
 ment was given are not recorded, and it is no authority on 
 the precise point in question. The opinion of Sir Thomas 
 Plumer, V. C, in Simpsoii v. Gutteridge, 1 Mad. Rep. 613, 
 coincides with the observations we have made on this point. 
 Co. Litt. 36, b. It may be added, that if the wife concurred in a fine of her 
 jointure lands, she would not be endowed of any of the other 
 lands of her husband, [and the same observation is applicable 
 to a deed of disposition by her under the above statute.] 
 Sydney v Sid. But a jointress is not precluded from her jointure, or even 
 ^ey, 3 p. Wins. j.g]ief in equity to enforce it, by adultery, or living apart with 
 another. 
 
 * As the husband, seised of an estate of which the wife 
 would be dowable if she should survive him, cannot destroy 
 her right to dower by his own act, so it seems to follow that.
 
 OF AN ESTATE IN DOWER. 101 
 
 [Widows are dowable of lands of inheritance Jcp'isonv 
 in the British colonies abroad, where by Act oi 130. Freeman 
 
 x\ -,. , 11/^ nil V. Faiili(\v.ilcd 
 
 rarliament, charter under the drcat oeal, order ib. \i:i. 
 in council or other competent authority the law 
 of England is established. 
 
 By the 41st section of the 3^4 1^. 4, c. 27, -^"-' * c/m.^ . 
 it is enacted that no arrears of dower shall he J" , '*f'"^ , 
 
 recoverable for more than six years. /... ^ *. • ; - 
 
 Dower in some cases ceases upon the deter- ^^.i ^^A 
 
 minatiou of the estate. 1. Where the fee is ij«. s. 393. ^;, ^^ ^^^ 
 evicted by a title paramount; 2. Where the 1 ^«^ ai.b^^^^'-f^^i 
 seisin of the husband is wrongful and the heir is 
 remitted ; 3. Where the donor enters for breach 
 
 according to the doctrine in Maundrell v. Maundrell, he can- 
 not, by his own act, cause the term to cease to be attendant 
 upon dower. If the right of the wife to dower attaches upon 
 the freehold in the lifetime of the husband, it must surely, 
 according to Maundrell v. Maundrell, attach also upon the 
 term attendant upon such freehold ; as it is laid down in that 
 case that the outstanding term " is as much attendant upon 
 dower as the remaining interest in the inheritance ; and 
 therefore ought not to be set up by the latter against the 
 former." If the wife, therefore, cannot be deprived of the 
 dower by the husband alone, it does not appear how she can 
 be deprived by him alone of her right to the attendance of a 
 term which is as much attendant upon her interest as upon 
 his own ; nor, consequently, how " an actual assignment" of 
 such term can be properly made without her concurrence, or 
 how that concurrence is to be legally given. — Note by 3fr. 
 Watkins. 
 
 Notwithstanding the doubt here thrown out by Mr. Watkins, 
 it has been decided beyond question, as we have already 
 mentioned in page o'2, that if the term is assigned to a trustee
 
 102 OF AN ESTATE IN DOWER. 
 
 10 Hep. 98, a. of concHtion ; 4. Where a person has a qualified 
 or base fee, tlie right to dower ceases when the 
 estate is determined ; 5. Where an estate in fee 
 simple is made determinable upon some par- 
 
 for the purchaser by the direction of the husband, the dower 
 will be barred, although the purchaser has express notice of 
 the marriage. But an actual assignment is necessary for that 
 purpose, Maundrell v. Maundrell, supra. And the Court 
 will enforce specific performance against a purchaser from the 
 husband, if there be an outstanding available term which can 
 be assigned to a trustee for his protection, although the wife 
 will not concur in the conveyance of the inheritance, 1 Mad- 
 dock, 613, 618. [Aud where the term happens to be vested 
 in the widow, as a trustee, the Court will compel her to 
 assign it for the purchaser's protection against her own dower. 
 This occurred in the case of Mole v. Smith, 1 Jac. Sf Walk. 
 665 : there the freehold estate of Watson, a bankrupt, was 
 sold by the assignees to Smith, who entered into possession 
 under the contract, and afterwards filed his bill against the 
 assignees, the bankrupt and his wife, for specific performance, 
 and an assignment of three terms, which, upon the bankrupt's 
 purchase, had been assigned to Yelluly to attend. The terms 
 happened to vest in the bankrupt's wife as surviving admi- 
 nistratrix of Yelloly ; upon the bankrupt's death his widow 
 claimed her dower, and insisted that she ought not to be com- 
 pelled to assign the terms vested in her to a trustee for the 
 purchaser, as a protection against her dower. Sir Thomas 
 Plumer, M. R., expressed considerable doubt whether the 
 Court could compel her to assign the terms. The cause came 
 on again before Lord Eldon, C, on the 4th of April, 1822, 
 1 Jacob, 490, and his Lordship decreed, that as the trustee 
 Yelloly (whom the bankrupt's widow represented) would, if 
 living, have been compelled by the assignees to assign the 
 terms to a trustee for the purchaser, in order to carry the
 
 OF AN ESTATE IN DOWER. 
 
 103 
 
 ticular event, if that event happens, dower will I,,57ed!\^ 
 cease with the estate. (*)] 
 
 Co. Zt«.>4i, a. 
 twte. 
 
 contract into effect, the widow was also compellable to 
 assign them. Reg. Lib. B. 1821, p. 1726.)] 
 
 We have further to remark, that tenant in dower is 
 subject to action for waste and to forfeiture, Co. Lift. 53 a, 
 54 a, and her concurrence was requisite in making the tenant 
 to the prcEcipe in a common recovery, for she is not within Eowe v Power, 
 the 14 Geo. 2, c. 20; and that by the custom of gavelkind ? ^7'. ^'J'; 
 she is entitled to a moiety, instead of a third, so long as she GaieliihuU^'.K 
 continues a widow and chaste, [of all the lands of which her 
 husband was seised during the coverture.] 
 
 [* The authorities of Buckworth and Thirkell, 3 Bos. ^ P., 
 652, note, as to curtesy, and Moody v. King, 2 Bing. 447, as 
 to dower, must be considered as forming an exception to the 
 last proposition advanced in the text : they decide that dower 
 and curtesy do not cease after the determination of the estate 
 by conditional limitation or executory devise, through the 
 death of the husband and wife without leaving issue. See 
 2 Roper's H. ^ W. Ed. 1826, Addenda, 502-8.]
 
 104 
 
 CHAP. VII. 
 
 OF AN ESTATE BY THE CURTESY. 
 
 2BiCom.i26. An estate by the curtesy, like that in dower, 
 and' Co. Lift.' anses by act of law, and is an estate of freehold ; 
 
 29, a. to 30, b. , ^i -^ i ' i i. 
 
 AComynsDig. 'dttd conscquently, as it may be conveyerJ to a 
 ?4"8.2S.^6'. stranger for the life of the tenant by the curtesy, 
 IJ^'. isgrS* ^^ ™"^* '^^ conveyed by those means which the 
 ^^' law appropriates for the transfer of freeholds, as 
 
 by livery, or under the Statute of Uses. 
 
 It ma}' also be surrendered to the heir or re- 
 versioner. 
 
 Morgan v. As au husbaud shall have his curtesy of a trust, 
 
 Morgan, . i p • i ^ • 
 
 5 Madd. 408. the same modes of prevention do not exist, as 
 exist with respect to dower. But as he shall not 
 have his curtesy of a remainder or reversion on 
 a freehold, nor of a freehold in possession, that is 
 not also of inheritance J the estate by curtesy may 
 be prevented by placing either the freehold in 
 
 Doe\. Rivers, possessiou, or au intermediate estate of freehold, 
 "or the inheritance, out of the wife.* 
 
 Lin. s. 35. * To give title to tenancy by the curtesy, the wife must be 
 
 seised in fee simple, or fee tail, and issue must be born alive,
 
 OF AN ESTATE BY THE CLIITESY. 105 
 
 Co. Litt. 30, which might by possibility have inherited, Co. _ 
 Litt. 29, b ; and there must be an actual seisin in deed, a y 
 seisin in law not being sufficient, Co. Litt. 29, a. But it is 
 immaterial at what time the issue is born, whether before or 
 after the lands vest in the wife, or whether the issue be then 
 alive or dead, Co. Litt. 30, a ; and the possession of a tenant De Grey v. 
 for years will be the possession of the wife, so as to give a 3 jtT Ai^d' 
 title to the curtesy before receipt of rent. Of an advowson, 
 or rent, of which actual seisin cannot be obtained, there will 
 be curtesy, although the wife die before avoidance or receipt, 
 Co. Litt. 29, a. By custom of gavelkind, the husband, if he Robinson's 
 survives his wife, is entitled to a moiety, whether he has issue ^^^^"'*^''' 
 or not, so long as he remains unmarried. Tenant by curtesy 
 is subject to action for waste, and to forfeiture : and his con- 
 currence, if seised of the freehold in possession, was requisite 
 in making a tenant to the prcBcipe, as before remarked in the 
 case of dower. 
 
 [In Barker v. Barker, the devise was to A. and her heirs ; 2 Sim. 249. 
 but if she died leaving issue, then to such issue, and their 
 heirs. A. died leaving issue : and it was held that the 
 husband of A. was not entitled to curtesy, as the children 
 took by purchase, and the wife had not such an estate as could 
 descend upon them.]
 
 106 
 
 TENANT IN TAIL AFTER POSSIBILITY OF 
 ISSUE EXTINCT. 
 
 Litt. c. 3, s. 32 Mr. Watkins seems to have omitted all mention of this 
 'com'm 124 estate. It arises when lands are limited in special tail, and 
 4 Comyn's Dig. one of the parties from whom the issue are to proceed dies 
 
 38. %)Vin.Ab. . , . .^1 ■, T • T J 
 
 171. 2Bac.Ah. Without issue ; as ii lands are limited to a man and woman, 
 ^•*' l^T'lTu and the heirs of their two bodies, and one of them dies 
 
 JJig. Jo4, 4tn 
 
 ed. without issue, the survivor is tenant in tail after possibility of 
 
 Litt. s. 32 and issue extinct : so if lands are limited to a man, and the heirs 
 of his body by his then wife, and she die without issue, the 
 Letvis Bowles's husband is tenant in tail after possibility of issue extinct ; 
 case, 11 Co. 84. ^^^ ^-^^^ estate may exist in remainder; and it will arise 
 Litt. s. 32. if there be issue born, and the issue die without issue. The 
 Co. Lilt. 28, a. estate must be created by the act of God, and not by limita- 
 tion of the party. And so, if lands are given to a man and 
 his wife, and the heirs of their two bodies, and afterwards 
 they are divorced, causd consangiimitatis, or affinitatis, their 
 estate of inheritance is turned to a joint estate for life : but 
 because their estate is altered by their own act, and not by 
 Co Lilt. ihid. the act of God, they are not tenants in tail after possibility of 
 issue extinct, but merely tenants for life. So far as respects 
 alienation, this tenant is reduced to an estate for life ; for he 
 has no power of barring the remainders or reversion on his 
 estate. But he has several privileges which a mere tenant 
 for life has not, the principal of which is, that he is dispunish- 
 able for waste : but, nevertheless, it is said in Herlahendeii! s 
 case, 4 Co. 63, that if he fell the trees the lessor shall have 
 them, for he has not an absolute interest in them. There 
 seems to be no decision to support this doctrine; and it is 
 difficult to conceive it to be law, or to understand why this 
 tenant is to be in a worse situation than tenant for life,
 
 TENANT IN TAIL AFTILR POSSIBILITY, &C, 107 
 
 without iiupeacliment of waste, when tlie law professes to 
 consider his interest as better than that of tenant for life ; 
 and it is denied to be law by Lord Coke, in 1 Roll. Rep. 184. 
 The privileges of this tenant are enjoyed in respect of the 
 privity of estate and inheritance once in him ; and, therefore, 
 if he assign his estate to another, the privity is gone, and his 
 grantee will be mere tenant j^owr autre vie, and it should seem Co. Litt. 28, a. 
 be punishable for waste. Lord Coke mentions four qualities 
 of this estate, in which it is similar to that of mere tenant for Ibid. 
 life : — 1st, It is liable to forfeiture; 2dly, It will merge in an 
 estate in fee or in tall ; 3dly, He in reversion or in remainder 
 shall be received upon his default : and 4thly, An exchange 
 between him and mere tenant for life is good.
 
 108 
 
 CHAP. VIII. 
 
 OF AN ESTATE TAIL. 
 
 2 Bi. Comm. When an Gstate is limited to a person and his 
 C.2.' Wrhjiifs' descendants, it is called an estate tail, as to a 
 
 Ten. 185. ^ J * 1 
 
 Suiiiv. Lect. man or woman, or to a man and woman,* and 
 Walk. No. the heirs 'f of his, he?', or their body or bodies. 
 
 Ixxix. to Gilb. 
 Ten. 418, and 
 
 ch^^^p u?'. If '^^ ^^ *° ^ ^^^ ^^ woman, and the heirs of 
 lo^vin'^Ab ^' ^^^^ *^^ '^^'^ body, it is an estate in tail general, as 
 ?63'^2^J«/''" ^"y ^^^^^ ^^ ^^^^ ^'' ^^^^ body may inherit: but if 
 "^^•^^.h r.- it be to Thomas and the heirs of his body by his 
 
 1 Cruise s Dig. •' •' 
 
 66, 4thed. ^^^g Jane, or to Jane and the heirs of her body 
 by her husband Thomas, or to Thomas and Jane 
 
 * By this is to be understood a man and woman between 
 whom in contemplation of law issue may be had : for if an 
 estate be limited to a brother and sister, (for example), and 
 the heirs of their bodies, this will give them a joint estate for 
 life, with several inheritances in tail as tenants in common. 
 Fearne^s Cont. Rem. 8th ed. 36, 37. 
 
 f [In a deed technical words of limitation are indispensable, 
 though not so in a will ; thus a limitation in a deed to A. and 
 his issue, only gives a life estate to A. ; while a devise in 
 similar words would confer an estate tail, Co. Litt, 20, b. 
 
 Wheeler v. Duke, 1 Crom. ^- Mee. 210.]
 
 OF AN ESTATE TAIL. 109 
 
 and the heirs of their bodies, it is an estate in 
 special tail ; and so also if it be to the heirs 
 male of the body of ^. J5. As, in the 6rst case, 
 no heirs of the body of Thomas can inherit but 
 those who are born of Jane ; nor, in the second, 
 any heirs of the body of Jane by any other 
 husband than Thomas; nor, in the third, any 
 heir of tlie body of Thomas who is not also heir 
 of the body of Jane, nor of Jane vvlio is not also 
 the heir of the body of Thomas ; or in other 
 terms, no heir of the body of Thomas, by any 
 other "wife, nor of Jane by an}' other husband, 
 shall succeed. 
 
 Hence, if it be wished to settle lands so that 
 the entail may not be cut off by the parents, it 
 may sometimes be necessary to limit an estate 
 for life to one parent, and the inheritance to the 
 heirs oi" the body of the other, as the entail 
 would then be in neither :* the first taking 
 only for life, and the other not taking at all ; 
 
 * The limitation to the heirs of the body would, in this r ^^^^^^ y ^-y^. 
 case be contingent : and f previously to the late stat. 7 & 8 '""• ^ ^"*9- 
 Vict. c. 76, might have been] destroyed by the tortious act Due v. Hou-dl, 
 of the tenant for life, if there were no limitation to preserve \qP^^' ^^ ^'"""' 
 contingent remainders : and even if there were, it might fail 
 of effect, in case the parent having the life estate should die 
 before the parent to whose heirs the estate is limited, as there 
 would, after the decease of the tenant for life, be no estate of 
 freehold to support the contingent remainder, unless the 
 limitation to the trustees were extended to meet that event. 
 It is a mode of limitation which can never be recommended.
 
 110 OF AN ESTATF. TAIL. 
 
 but the heirs being iii by purchase. Or if the 
 estate be the husband's, to limit to him for life, 
 with remainder to the wife in tail, as he, being 
 tenant for life only, cannot dock the entail, and 
 the wife is prevented from doing so by the statute 
 o'iHen. 7, c. 20.* 
 
 1 Co. 104. But as it is a rule,t that " if the ancestor, 
 
 Watk. Desc. 
 157. 1 Harg. 
 Law Tt. 485. 
 
 550. * But as the husband and wife may together bar the entail 
 
 this is not always an effectual mode of prevention. — Note by 
 Mr. Watkins. 
 
 This mode of limitation should never be resorted to, unless 
 it is wished to give the parents jointly a power of disposition 
 over the estate ; and even in such a case, a joint power of 
 appointment is more simple : [previously to the statute 
 3 & 4 IV. 4, c. 74, such power prevented the expense of a 
 fine or recovery which would otherwise have been needful to 
 bar the entail ; and now since the above statute it supersedes 
 the necessity of adopting those forms which the act annexes 
 to assurances substituted, in pursuance of its provisions, for 
 fine or recovery.] 
 Rule in Shel- t ^^^^ Is the well known rule in Shelley^s case ; so called, 
 
 ley's case. not because the rule was first propounded in that case, but 
 
 because the rule determined the case. From an ignorance of 
 the principle of this rule, more legal errors and greater mis- 
 chiefs have probably arisen, than from the misapplication of 
 any other rule in law. As Mr, IVatkins has treated it very 
 briefly, it becomes necessary for us to give some further ex- 
 planation on the subject. The rule has its origin in feudal 
 principles ; and was most probably established to prevent 
 injury to the lord, by loss of wardship, if the heirs could have 
 been made to take by way of purchase, instead of by descent. 
 The rule is, that wherever the ancestor takes an estate of free- 
 hold, and an immediate remainder is limited thereon in the
 
 OF AN ESTATE TAIL. 1 1 I 
 
 by any gift or conveyance, takes an estate of 
 freehold, and in the same gift or conveyance an 
 estate is limited, either mediately or immediately, 
 to his or her heirs in fee or in tail, the words 
 the heirs are words of limitation, and not words 
 of purchase," care must be taken, if it be in- 
 
 same conveyance to his heirs general, or heirs special, the re- 
 mainder so limited is immediately executed in possession, in 
 the ancestor so taking the freehold ; and therefore, is not con- 
 tingent or in abeyance. And also, wherever the ancestor by 
 any gift or conveyance takes an estate of freehold, and there is 
 afterwards, in the same gift or conveyance, a limitation to his 
 right heirs or heirs in tail, after some other estate for life or in 
 tail interposed between his freehold and such limitation to his 
 heirs, Src, this remainder to his heirs vests in the ancestor 
 as a remainder, and shall not be in contingency or abeyance. 
 And even if the remainder cannot by possibility vest in the 
 lifetime of the ancestor, as to A. and B., and the heirs of him 
 who shall die first ; or if the remainder be limited on a con- 
 tingency, which contingency does not happen in the ancestor's 
 lifetime, nevertheless, the heirs will take by descent. 
 
 The general principles which seem to govern the applica- 
 tion of the rule are as follow ; First, both the limitations 
 must be created by the same instrument, or by that which 
 is tantamount thereto, viz. the estate of freehold by one 
 instrument, and the remainder to the heirs by an exercise 
 of a power of appointment contained in that instrument. 
 Secondly, both estates must be legal, or both equitable. On 
 this a doubt has been entertained, where the freehold in the 
 ancestor is legal, and the remainder in the heirs equitable : 
 but it should seem the estates will not, in such case, coalesce. [7 T. li. 3-12.] 
 Thirdly, the rule will operate, although the estate of freehold 
 be made without impeachment of waste, or with powers of 
 jointuring or leasing, or there be an immediate limitation to
 
 1 12 OF AN ESTATE TAIL. 
 
 tended that the entail shall not vest in the parents, 
 to limit the estates so as not to be capable of 
 uniting ; as to the parent for years, as for ninety- 
 nine years if he so long live, which will only 
 give him a chattel interest that cannot coalesce 
 with the estate limited to his heirs, which is a 
 
 trustees to preserve contingent remainders. FourtJdy, it 
 will operate even if words of limitation be engrafted on the 
 remainder to the heirs, not being inconsistent with the 
 nature of the descent pointed out by the first words ; or if 
 the limitation be to heirs special, with general words of 
 inheritance engrafted thereon. Fifthly, if there are words 
 of limitation engrafted on the remainder to the heirs, incon- 
 sistent with the nature of the descent pointed out, as to A. 
 for life with remainder to his heirs, and their heirs female of 
 their bodies, 1 Rep. 95, b. ; or there be explanatory words 
 added thereto, as " to B. and the heirs of his body (that is 
 Lowev.Da\nes, to Say) to his first, second, and other sons," or "to A. and 
 2 Ld. Raym. ^^^ heirs male of her body begotten, or to be begotten, as 
 Gretton v. tenants in common, and not as joint tenants ; and if such 
 
 t) ^Taunt 94. issue should die before he, she, or they, should attain twenty- 
 1 Mer. 448. one, then to B. in fee," Doe v. Goff, 11 East, 668, or "to A. 
 
 Overruled by t ^ • n ^ i ^ 
 
 jesson V. and after her decease, to the heirs of her body, share and 
 
 JVri(/U,2 share alike, if more than one;" the heirs will take as pur- 
 
 Bliyh, 2, 5H, ' *- 
 
 and sec Wilcox chasers. Sixthly, if the word "heir" be used in the singular 
 Hayes Inn. \ . number, without any words of limitation thereon, the rule 
 will take effect, unless, as in White v. Collins, Com. Rep. 289, 
 ^Douglas v. Congreve, 4 Bing. JV. S. 1,] the limitation to the 
 heir be for life : but it seems if the limitation to the heir be 
 in the singular number, with words of limitation thereon 
 [Sec 1 Myl. §• engrafted, although consistent with the nature of the descent 
 ■ ' pointed out, yet the word heir has been deemed a word of 
 
 purchase. Seventhly, the rule applies as well to trusts exe- 
 cuted as to legal estates. But, Lastly, in trusts executory
 
 OF AN ESTATE TAIL. 1 !3 
 
 freehold :* or to give an equitahle estate only 
 to the parent, and a legal one to the heirs ; for 
 estates must be of the same nature to be capable 
 of uniting, as both equitable, or both legal :f 
 
 the rule is relaxed ; and the Court of Chancery will direct a 
 settlement on the issue, as purchasers, if such be the evident 
 intent of the parties. This latter observation applies chiefly 
 to the case of marriage articles. See Trevor v. Trevor, 
 1 Eq. Cn. Ab. 387. 1 Peere Wms. 622. Jones v. Laughten, 
 1 Eq. Ca. Ah. 392. Cussack v. Cussack, 2 Bra. P. C. 116, 
 8vo. ed. 
 
 These are the general principles which govern the appli- 
 cation of the rule ; they are drawn from Mr. Fearne^s 
 elaborate essay on Contingent Remainders, which we recom- 
 mend to the student's careful and patient perusal. 
 
 [A rule of construction in some respects analogous to the 
 rule in Shelley's case, is applicable to dispositions of per- 
 sonalty in deeds (15 Ves. 537, 2 Keene, 646, 3 Myl. ^ K. 197,) 
 and in wills, 3 Russ. 467, 1 Keene, 325, 1 Myl. ^ K. 470. 
 Earl of Verulam v. Bathurst, 7 Jur. 295.] 
 
 * [The limitation to the heirs was until the recent statute 
 7^8 Vict. c. 76, a contingent remainder, and a limitation 
 to trustees during the life of the parent was necessary to 
 support it ; but the law is now otherwise, for by the 8th 
 section of that act, it is enacted, that no estate in land shall 
 be created by way of contingent remainder, but shall take 
 effect as an executory estate having the properties of an 
 executory devise ; and also that contingent remainders 
 existing previously to the act, shall not be destroyed by the 
 destruction or merger of any preceding estate, or its de- 
 termination by any other means than by the natural effluxion 
 of time of such preceding estate, or some event on which it 
 was in its creation to determine. See Chapter on Remainders, 
 infra.'] 
 
 f This has been referred to in the preceding note on the 
 I
 
 ]14 OF AN ESTATE TAIL. 
 
 or to confine the particular estate to one parent, 
 and limit the remainder to the heirs of the body 
 of both* And care must also be taken that the 
 whole of the particular estate be disposed of, lest 
 any estate of freehold be capable of resulting to 
 the ancestor to whose heirs the estate is limited.-f 
 
 rule in Shelley's case: the only remaining point on that 
 subject to be noticed, is the instance of the estate of free- 
 hold being legal, and in trust for other persons, with a legal 
 beneficial remainder to the heirs of the first taker. On this 
 Mr. Fearne entertained doubts. But Mr. Butler seems to 
 think that, as the Courts of law cannot notice the trust, the 
 estates must coalesce. Fearne's Cont. Rem. 8th ed. 35. And 
 in this opinion we concur. 
 
 * The remainder will be contingent, and the heirs take as 
 purchasers, Laiie v. Pannell, 1 Roll. Rep. 238. Frogmorton 
 V. Wharrey, 3 Wils. 125. 
 
 f A use will not result contrary to the intent of the con- 
 veyance, as if a use be expressly granted away during the 
 grantor's life, Tippin v. Cosin, Carth. 272, or if an estate for 
 years be limited to him, as in Adams v. Savage, 2 Salk. 679. 
 Rawley v. Holland, Vin. Ab. Vol. XXII. p. 189. Else v. 
 Osborne, 1 Peere Wms. 387. But a use will result on a 
 limitation, which may, by possibility, determine in the 
 grantee's lifetime, as by forfeiture of a life estate. Wills v. 
 Palmer, 5 Burr. 2615 ; and also, if no estate whatever be 
 limited during the grantor's life, Pibus v. Mitford, 1 Vent. 
 372 ; or, if there be a preceding limitation for years (not being 
 to his use, or for his benefit,) Penhay v. Hurrell, 2 Vern. 370. 
 The application of the doctrine to the point in the text is, 
 that this resulting use will, under the rule in Shelley's case 
 (which has been already explained), unite with the subsequent 
 limitation to the heirs of the body of the grantor, so as to give 
 him an estate tail.
 
 OF AN ESTATE TAIL. 
 
 115 
 
 But the best and most usual mode is to limit 
 to the parent or parents for life, with remainder, 
 not to the heirs of his, her, or their body or 
 bodies, but to the son or sons (or children), and ^^""^'jf ''^Jf; 
 the heirs of his, her, or their body or bodies ; so 2/,v?v li/e/l 
 that the son, or sons, or children, shall take as Ush, 2 nam. s^ 
 
 ' ' Cress. 5.5.5. 
 
 purchasers, as persons particularly and expressly Woiien v. An- 
 
 designated, and 7iot as the heir or heirs of the 126. 
 
 parent or parents. [But if in a settlement made 
 
 before the 1st of January, 1845, the remainders 
 
 had been to children unborn, such remainders 
 
 must necessarily have been contingent until the 
 
 children came in esse, and, consequently, must 
 
 have been subject to destruction, or to being de- ^^f^i^"^'"^, 
 
 feated by the parents ;*] and hence the utility of Hopkins ^^ss. 
 
 kins. Bud. add. 
 n. to Co. Liu. 
 
 * Before the statute 7 & 8 Vict. c. 76 (5. 8), which came 27i,b.&n.('2) 
 into operation on the above day, contingent remainders must 29o,b.'(s!i 1 1 ). 
 
 have been supported by a preceding estate of freehold, or, by 1 Feame, Con- 
 tingent Rem. 
 an immediate preceding right of entry for an estate of free- 281, 8th cd. 
 
 hold, and hence arose the doctrine of the destruction of con- 
 tingent remainders by tenant for life. For if tenant for 
 life, on whose particular estate contingent remainders were 
 depending, commit an act of forfeiture, his estate was 
 destroyed ; and all contingent remainders depending on his 
 estate were consequently defeated. But as it was held that Feame, C. K. 
 an immediate right of entry in some third person for an estate ' 
 of freehold, would support the contingent remainders, a limi- 
 tation was introduced to trustees during the life of the tenant 
 for life, in trust in case of forfeiture to enter and revest the 
 estates displaced by the act of forfeiture : and by this right of 
 entry in the trustees, the contingent remainders were sup- 
 ported ; but the law has now become materially altered in this 
 respect as noticed in a preceding page, 113, note. 
 
 r 2
 
 J16 OF AN ESTATE TAIL. 
 
 appointing trustees for preserving them. The most 
 common mode of limiting these remainders to the 
 issue, is to the first and other sons successively : but 
 this mode is sometimes objectionable, as it renders 
 the eldest son independent of his parents ; and 
 it may, therefore, be advisable to limit the estate 
 to such son of tiie marriage as the parents, or the 
 survivor of them, shall, by deed or will, appoint, 
 and to the heirs of his body ; and, in default of 
 such appointment, to the first and other sons, &c. 
 in the usual manner.* 
 
 * This proposition is open to observation. In great family 
 settlements it is generally the intent of the parties to make a 
 certain provision for the eldest son, independent of the 
 parents, in which case no power of appointment amongst the 
 children should be introduced. But if it be the wish to give 
 the parents a control over the eldest son, this discretionary 
 authority had better, in most cases, be confined to both the 
 parents jointly, and not be extended to the survivor ; and at 
 any rate, if the power is to be given, it should not be confined 
 to an appointment in tail, but should enable the parents to 
 appoint to the sons any estate they may think proper, which 
 by an appointment in fee, [may supersede the necessity of 
 resorting to the forms of conveyance substituted by the 
 3 & 4 TV. 4, c. 74^ for fines and recoveries,^ 
 
 In limiting an estate in strict settlement, the parents should 
 be questioned whether it is their wish to give preference to 
 their own daughters, or to the daughters of their sons. If 
 the first, then the limitations may be to the first and other 
 sons successively in tail male, with remainder to the daughters 
 of the marriage as tenants in common in tail male, with cross- 
 remainders, with remainder to the sons successively in tail 
 general, with remainder to the daughters in tail general, &c. 
 But if the latter, then to the first and other sons in tail male, 
 he, with remainder to the sons in tail general, &c., with
 
 OF AN ESTATE TAIL. I 17 
 
 An estate tail cannot be transferred to another : No. i to Co. 
 
 Liu.:i3\,A. 
 
 but as the tenant in tail has a fee (though re- and the books 
 
 .... then' cited. 
 
 stricted) m him, he may convey a base fee to Of Discontinu. 
 another by lease and release, bargain and sale to Co.uu.szg, 
 enrolled, or [by a deed of disposition under the 10^327%. 
 statute 3 Sf 4 W. 4, c. 74, without the consent ni.'wT^Litt. 
 of the protector, as he might before that statute co.'utt. 32". 
 by fine ;] that is, if he make such conveyance to ^'dJiI/.I^''' 
 A. and his heirs, A. and his heirs shall have a ^"fd'ctowv. 
 fee simple qualified, that is, so lone: as the issue Baidwere, and. 
 
 » 1 ' O Martin a Ire- 
 
 of the tenant in tail continue.* And if the gonwdi^. 
 
 Strdcnaii, in 
 _^ notis. 
 
 remainder to the daughters in tail general, &c. It will be found 
 that the first is generally their wish. But in many settlements, 
 the daughters of sons have priority. 
 
 * In the case of Took v. Glascock, 1 Saund. 260, it was 
 held, that if tenant in tail by bargain and sale conveyed the 
 lands to another and his heirs, the bargainee had but an 
 estate descendible for the life of tenant in tail, and that his 
 heir should take as special occupant. In Machell v. Clarke, 
 2 Lord Itaymond, 778, Lord Holt denied the case of Took 
 V. Glascock to be law ; and it was held, that if tenant in tail 
 convey the lands entailed by bargain and sale, lease and 
 release, or covenant to stand seised, to the use of another in 
 fee, and die, a base fee passes by the conveyance, and the 
 estate continues until it be avoided by the issue in tail by 
 entry ; and, therefore, the widow of the grantee will have 
 dower, and the grantee is not punishable for waste ; and his 
 alienation by feoffment, and other conveyance, is no for- 
 feiture. It was also decided in Machell v. Clarke, that if 
 tenant in tail bargained and sold, or covenanted to stand 
 seised to the use of one for life, with remainder to another in 
 fee, the remainder was good until entry : but that if he cove- 
 nanted to stand seised to the use of himself for life, with 
 remainder to another, the remainder is ipso facto void, because
 
 118 OF AN ESTATE TAIL. 
 
 enant in tail had also the immediate remainder 
 or reversion in fee in himself, he might, [pre- 
 
 the issue have a right paramount to the title of the remainder. 
 If tenant in tail by bargain and sale, lease and release, or 
 covenant to stand seised, convey to the use of another in fee, 
 and the bargainee is seised by virtue of such conveyance ; a 
 fine [with proclamations] afterwards levied by tenant in tail 
 extinguished the estate tail, and confirmed the base fee, 
 but did not discontinue the remainderman or reversioner ; who 
 might, therefore, enter on the failure of issue, and were not 
 driven to the action o^ formedon, Seymor's case, 10 Coke, 96, 
 which would have been the case, if the fine had been levied 
 before the bargain and sale, or had been levied in pursuance 
 of a covenant, in the conveyance of the estate. Doe v. White- 
 head, 2 Burr. 704. If tenant in tail in possession conveyed 
 by fine or feoffment, it operated as a discontinuance of the 
 estate tail, and the remainderman or reversioner was driven to 
 hxsformedon : but an actual entry was not necessary to avoid 
 this fine [previous to the bringing of such action q{ formedon, 
 as it was of an ejectment. This action must, however, have 
 been brought within five years after the title accrued, 1 Saund. 
 Tolsonv. Knye, 261, note.] If the conveyance was by feoffment, the issue 
 •6Brod.^B,ng. ["cQuld not enter on the death of tenant in tail, because it 
 Moore, 565. created a discontinuance, by which they were driven to their 
 
 Infra, Ch. ,.-,.„. in • i i • , 
 
 Grant, Fine. ^'^^^ action ;j it it was by fane with proclamations, they were 
 utterly barred by force of the statutes, 4 H. 7, c. 24, 32 H. 8, 
 c. 36. But a fine at common law was not a bar, although, if 
 levied by tenant in tail in possession, it discontinued the 
 estate tail, and drove the issue to their formedon. And to be 
 a bar, the proclamations need not be in the lifetime of the 
 tenant in tail who levied the fine, 1 Saund, 258, 259. If 
 tenant in tail created a base fee, and afterwards levied a fine 
 to other uses, the fine operated to confirm the base fee, 
 8 Terin Rep. 214. But in order to acquire the absolute fee, 
 it was necessary, the grantee, &c. should concur in making a
 
 OF AN ESTATE TAIL. 1 19 
 
 viously to the above statute, have] conveyed an 
 absolute fee to another, or gained an absolute fee 
 in himself, by levying a fine ; for the fine passed 
 the reversion, which is an absolute fee, as well as 
 the base fee ; and when both fees are fixed in the 
 same person, the base fee [previously to the above 
 act] merged in the absolute one, so that the ab- 
 solute or reversionary fee came into possession.* 
 
 tenant to the prtecipe in a common recovery, which, when 
 suffered, rendered the estate of the grantee indefeasible. And 
 if tenant in tail by lease and release conveyed to the use of 
 himself, for life, with remainders over, and afterwards suffered 
 a common recovery to other uses, the recovery enured to the 
 uses of the settlement. 
 
 [The preceding sentence, which is in conformity with a 
 note of Mr. Serjeant Williams, to 1 Saund. p. 260, and the 
 passage above which cites 8 T. R. 214, must be read with 
 some qualification. The authority cited does not support the 
 proposition deduced from it. In that case (Doe v. Whichelo) 
 A., the tenant in tail of a moiety of an estate, by lease and 
 release conveyed it to his sister (the tenant in tail of the other 
 moiety) in fee : the release contained a covenant from A. to 
 levy a fine to enure to the use of his sister in fee. . In the fine 
 (which was not levied until after her death intestate) her 
 heir at law was plaintiff, and A. the deforciant : no other uses 
 were declared when the fine was so levied, nor at any time 
 afterwards, 8 7". 7?. 212. The reader is referred to a note on 
 a future page, in the chapter on Uses and Trusts, for some 
 observations on conflicting declarations of uses.] 
 
 * With all the incumbrances created by any of the persons 
 through whom it descended. When the reversion descended 
 on the tenant in tail, a common recovery should have been 
 suffered, for two reasons : First, it prevented the charges of 
 his ancestors from taking effect ; and, secondly, it precluded
 
 120 
 
 OF AN ESTATE TAIL. 
 
 2i4,Tr*4.^'^' But as the tenant in tail (while tenant in tail) 
 Cudmore'!' inight ckavge the reversion, and as the fine when 
 '^sheibtrnk levietl brought the reversion into possession, it was 
 GB^f^Pari fj^equently prudent, and, indeed, necessary, in 
 Cases, 35f3. order to P:ain a s;ood title, to suffer a recovery : 
 '^^•'^- as a fine let in the charges of the tenant in tail, 
 
 and a recovery gave a new fee, [letting in the 
 
 \6%Cri^ni ^^^^''g^^ o"^y ^f ^^^^ person suffering it, though not 
 396, ed. 4. those of his ancestors.]* 
 
 the necessity of tracing the title of the fee to him, which was 
 otherwise unavoidable, and often attended with expense and 
 vexation ; for, as the base fee merged in the reversionary 
 fee, it became essential to show the regular descent of 
 the latter, on the tenant in tail. [The law, however, is now 
 altered in reference to the instance noticed in the text. 
 Fines and recoveries being abolished by the stat. 3 Sf 4^ W. 4, 
 c. 74, a tenant in tail in possession, whether the immediate 
 reversion in fee be in himself, or there be remainders de- 
 pending upon his estate tail, is now empowered, by the 
 above act, to acquire an absolute fee by a deed of disposition 
 executed in conformity with its requirements. The base 
 fee (in the instance above noticed) by the 39th section 
 of the act, becoming united, at or after the passing of the 
 act, with the immediate reversion in fee, does not now merge 
 in the latter, but is ipso facto enlarged into an absolute fee, 
 thereby driving out the reversion ; the effect which a 
 recovery before the act would have produced, if suffered 
 by the tenant in tail.] 
 
 * In Stapilton v. Stapilton, 1 Atk. 8, Lord Hardioicke 
 says, " If tenant in tail confesses a judgment, or a statute, or 
 enters into a bond, and afterwards suffers a recovery to bar 
 the estate tail, it lets in the preceding judgment, &c., and it 
 is as clear, if a tenant in tail make a lease, not warranted by
 
 OF AN ESTATE TAIL. 1*21 
 
 Hence, then, was a recovery suft'ered by the pf 'loTch^^ 
 tenant in tail, in most cases, the best and most \<^\«- {,^'>- 
 
 ' ' ch. 7, ed. 4. 
 
 effectual bar :* and this should have been suffered 
 
 with (at least) a double voucher, for if suffered 
 
 with a single one, it only barred the estate of 
 
 which the tenant in tail ivas actually seised at the 
 
 time ; but if with a double or treble voucher, it ^ ^''"- ^,'^- 
 
 barred every other interest he might have in 
 
 the premises, as will apjDear under the head of 
 
 Recovery. 
 
 A tenant in tail in possession fmioht also before ^^^ '^ ^""^^ 
 
 ^ , ^ ^ . 1072, &c. 
 
 the above act,] in some instances, bar both his 
 own issue and those in remainder, by annexing 
 a warranty to his orant ; as the warranty de- 2 bi c<>m.3o^. 
 
 ,.,. .„ .. (Jilb Ten. \3:i. 
 
 scended to his heirs, and, if accompanied with and mak. n. 
 
 ' liv. &c. p. 400, 
 ^^_ 
 
 the statute of the 32 //. 8, if he suffers a recovery, that lets 
 in the lease, and makes it good : there are so many cases 
 of this kind that it is not necessary for me to mention them." 
 
 * In some cases, indeed, a fine is a more effectual bar Helps v. //</e- 
 than a recovery ; as the former is declared an estoppel or "2' jw 2/4 " 
 bar by the statute 32 If. 8, while it would be at least 
 doubtful whether the issue would be estopped merely by the 
 vouching of the ancestor. Post, B. 2, c. 15, and c. 16. — 
 Note by Mr. Watkins. 
 
 There were cases in which a fine must have been resorted 
 to, as by tenant in tail in remainder to bar his issue, if 
 the tenant of the freehold would not, [or through mental inca- 
 pacity could not,] concur in a recovery ; and also, if an estate 
 tail were limited on a contingency, [Under similar circum- 
 stances an assurance under the statute 3 <$• 4 W. 4, c. 74, 
 may be resorted to by the tenant in tail to effectuate the 
 same object.]
 
 122 OF AN ESTATE TAIL. 
 
 assets, barred his own issue, and without assets 
 barred such of his heirs as might be in remainder 
 or reversion. But the propriety of this mode 
 depended upon much nice matter, and should 
 [have been resorted] to with much caution ; for 
 should no assets actually descend to the issue, they 
 were not barred, nor was the remainderman or 
 reversioner, unless he was also the heir of the 
 luarrantor ; for, unless he was the heir of the 
 warrantor, he was not subject to the warranty. 
 
 The warranty descending on the issue was a 
 lineal warranty, as the heir claimed through the 
 warrantor ; and lineal warranty was no bar with- 
 out assets actually descending. But the warranty 
 descending on those in remainder or reversion 
 was collateral, as they did not claim through the 
 warrantor, but immediately from the donor : and 
 collateral warranty barred without assets.* 
 
 Wurraniy. * The Student must understand that the terms lineal and 
 
 collateral, as applied to warranty, refer to the estate, and not 
 to the person ; that is, if he on whom the warranty descended 
 could, by possibility, have claimed the land as heir to him 
 who made the warranty, it was lineal ; if not, it was col- 
 lateral : so that collateral warranty might descend on a lineal 
 heir, and lineal warranty on a collateral heir. Thus, in the 
 instance put by Littleton, s. 704, if the son purchase lands in 
 fee, and his father disseise him, and alien with warranty and 
 die, this warranty is collateral, because the son claimed not 
 the land as heir to his father. And, on the other hand, if a 
 man be disseised, and the eldest son release the disseisor 
 with warranty, and die without issue, and afterwards the 
 father die, this is lineal warranty to the younger son ;
 
 OF AN ESTATE TAIL. 123 
 
 [But now warranties of lauds to bar estates tail 
 and estates expectant thereon are abolislied by the 
 14th section of the statute 3 ^ 4 TF. 4, c. 74.] 
 
 And so established was the power of the tenant ' Burr.M,i\o 
 
 ^ ^ (i)toCo. Lin. 
 
 in tail to destroy the entail and alien, by fine or 379, b vic/e 
 
 •^ ^ ^ . . '"/'•". 1^- 3, ell. 
 
 recovery, that no condition restrictive of such -i, as to emails 
 
 of the gift of 
 
 ___^ the crown. 
 
 6 Geo.4,c. 1(). 
 
 because he might, by possibility, convey title to the lands *■ ^^• 
 through his elder brother, Litt. s. 707. Warranties at the 
 common law were of three sorts, namely, lineal, collateral, 
 and commencing by disseisin : the latter warranty was no 
 bar to the heir, and arose in the case of a disseisin with an 
 intent to alien with warranty, and did not apply to the case 
 of common disseisins. Lineal warranty, it should seem, could 
 only imply an obligation to make recompense in case of evic- 
 tion to the amount of assets descended ; for, as the ancestor 
 might have parted with the estate, there was no occasion for 
 it to rebut the claim of the heir. The effect of collateral 
 warranty, on the contrary, was to estop the legal claim of 
 those in remainder or reversion, on the presumption, it 
 should seem, that they had received an equivalent : hence 
 the warranty of tenant for life effectually barred the re- 
 maindermen if the warranty descended on them as his heirs. 
 But by the 4^5 A?in. c. 1 6, all warranties of tenant for life 
 were rendered void, and all collateral warranties of any 
 ancestor who had not an estate of inheritance in possession 
 were also void against the heir ; lineal warranties [until the 
 recent statute 3 Sf 4 fV. 4, c. 74,] remained as at common 
 law, that is, they bound with assets. To apply the doctrine 
 to estates tail, the collateral warranty of tenant in tail in 
 possession was not avoided by the statute of Ann. ; and, 
 consequently, if a remainderman was his heir, he would be 
 barred. As to the issue, it was held, they were protected by 
 the statute de donis, and were only estopped by warranty
 
 124 OF AN ESTATE TAIL. 
 
 power was permitted to take effect.* [And the 
 same rule, it is conceived, equally applies to any 
 condition restraining the alienation of tenant in 
 tail by deed, in conformity with the provisions 
 of the statute 3 Sf A W. 4, c. 74, which, abolishing 
 fines and recoveries, substitutes more simple modes 
 of assurance.] 
 
 And note, that express power is given by sta- 
 tute to commissioners of bankrupt to convey 
 lands entailed of the bankrupt, by bargain and 
 sale enrolled. t 
 
 with assets ; and the reversioner also, it should seem, was 
 in like manner, protected by the same statute : see Bole v. 
 Horton, Vaughan, 360 : in all other instances, the doctrine 
 of warranty appears to have been obsolete. An able review 
 of the doctrine will be found in Mr. Butler's notes in Co. Litt. 
 373, b. 
 Sec Fciirne's * This must be understood of a fine within the statutes 
 
 20U 8tl'ed. ^ ^- '^' ^"'^ 32 ^. 8 ; that is, with proclamations ; for a 
 condition restraining alienation by discontinuance, such as 
 by feoffment, or fine at common law, was valid, [previously 
 to the statutes 3 4-4 W. A, c. 74, s. 2, 14, and c. 27, s. 39, 
 by which discontinuances are virtually abolished.] 
 
 f [Since the passage in the text was written, the Bankrupt 
 Law has undergone various fluctuations. Previously to the 
 6 G. 4, c. 16, the conveyance by the commissioners must 
 have been indented and enrolled in some of his Majesty's 
 Courts of Record, within six months, and was a bar to all 
 persons whom the bankrupt could have barred, by fine, 
 [5 §• 6 Vict. recovery, or other means. The 6 G. 4, c. 16, which was 
 c. 122.] passed to consolidate the law respecting bankruptcy, did not 
 
 restrict the enrolling to six months. That act, in its turn,
 
 OF AN ESTATE TAIL. 125 
 
 was repealed, so far as related to the conveyance of the 
 bankrupt's real estate by the commissioners, by the 1^2 
 JV. 4, c. 56 : which latter act established the Court of Bank- 
 ruptcy, and, by s. 26, enacted that the bankrupt's real estate 
 shall without any conveyance vest in the assignees for the 
 time being by virtue of their appointment. The statute 
 3^4 W. 4, c. 74, for abolishing fines and recoveries, repeals 
 the 6 G. 4, c. 1 6, so far as relates to estates tail ; and, to 
 that extent also, repeals by s. 55, the I S)- 2 IF. 4, c. 56, 
 s. 26 ; and by s. 56, empowers any commissioner acting in 
 any fiat, after the 31st December, 1833, by deed enrolled 
 within six months after its execution, to dispose of the lands 
 of the bankrupt tenant in tail to any purchaser. The 1 <^ 2 
 fV. 4, c. 56, is still in force respecting the estates of which 
 the bankrupt is seised in fee simple ; and also with respect 
 to those of which he is seised in fail, until they are conveyed 
 by the commissioners ; for all the bankrupt's real estate by 
 s. 26 of the latter act is vested in the assignees ; but the 
 commissioners appear to be the proper parties to convey the 
 bankrupt's estates tail under the 3^4 W. 4, c. 74, s. 56, 
 and the assignees the proper parties to convey the bankrupt's 
 estates in fee simple, under the 1 S)- 2 W. 4, c. 56. See 
 1 Cru. Dig. p. 88, note (h) Ed. 1835.] 
 
 [It was settled, by the case of Jervis v. Tayleur, 3 Barn. 
 4" Aid. 557, that the assignees under the statute 21 Jac. 1, 
 c. 19, s. 12, of a bankrupt tenant in tail in remainder, 
 expectant upon a previous life estate, only took by the 
 assignment of the commissioners a base fee ; that is, such 
 an estate as the bankrupt himself, without the concurrence of 
 the tenant for life, could convey, by fine with proclamations. 
 The case above cited strikingly illustrates the point in ques- 
 tion : there a joint commission was issued against the father, 
 tenant for life, and the son, the tenant in tail next in re- 
 mainder ; it was contended, that as the father and son, by 
 joining in a recovery, might have barred the remainders, and 
 conveyed an absolute fee, so the assignment of the joint 
 commissioners, upon the true construction of the Bankrupt
 
 126 OF AN ESTATE TAIL. 
 
 Act, which was to be construed liberally for the benefit of 
 creditors, would pass an absolute fee to the assignees : but 
 the Court of K. B. was of opinion that the power of the 
 commissioners operated upon each estate separately, and that 
 their assignment only conveyed the life estate of the father, 
 and a base fee in remainder determinable upon the death of 
 the son, and failure of his issue under the entail. See statute 
 34-4 W. 4, c. 74, ss. 56, 57, 58.] 
 
 [We may here remind the student that conveyances by a 
 bankrupt botid fide to a purchaser, without notice made and 
 executed before the issuing of any fiat, shall be valid, not- 
 withstanding a prior act of bankruptcy, 2 4" 3 Vict. c. 11, 
 s. 12, and see Chapter on Gift, in notis infra.']
 
 V27 
 
 OBSERVATIONS ON THE STATUTE 3 & 4 TVILL. 4, 
 c. 74.* AS IT APPLIES TO ESTATES TAIL AND 
 BASE FEES. 
 
 [As a suitable appendage to the preceding chapter, a brief 
 summary is here introduced of those parts of the statute 3 4-4 
 W. 4, c. 74, which confer powers of disposition upon persons 
 entitled to estates tail and base fees. 
 
 The assurance, which must be enrolled in Chancery within Mode of a^- 
 six calendar months from its execution (s. 41) may be, by 
 feoffment, lease and release, bargain and sale, grant or 
 covenant to stand seised, according to the circumstances 
 of the estate, and the object of the parties, but not by 
 executory contract or will (ss. 15, 40.) The estate tail may What estates 
 be barred whether legal or equitable, in possession, remainder, 
 or contingency («. 15) ; and the conveyance may be either 
 with or without the consent of the person called by the act 
 " the protector ;" but where there is a protector, his con- 
 senting or not will materially affect the operation of the deed 
 of disposition, as it regards the remainders expectant upon the 
 estate tail in reference to which his concurrence is required. 
 
 The office of the protector is to consent, and not to convey. Office of pro . 
 
 tector. 
 
 * [The statute which is the subject of the following anno- 
 tation was framed, by Mr. Brodie, and it is due to this 
 eminent conveyancing counsel to say, that the statute books 
 of the united kingdom do not furnish a more masterly 
 specimen of remedial legislation. Displacing an artificial 
 system of assurance involved in abstruse learning and useless 
 technicality, it supplies a simple and effective substitute ; 
 and the analytical arrangement of the whole is in perfect 
 accordance with the clearness and accuracy of the enactments 
 in detail.]
 
 128 OBSEKVATIONS ON 
 
 Where the deed does not appoint any protector, the first 
 tenant for life or years determinable on life, will, in general 
 be the protector ; and that, notwithstanding the partial or 
 total alienation of his estate (*. 22) ; but subject to the 
 exceptions in ss. 29 and 30 : And where there are several 
 successive life estates, when the first tenant for life for the 
 time being dies, the next in succession will be the protector 
 (s. 22). Dowresses, lessees at a rent, bare trustees (except 
 under 5. 31) heirs, executors, and assigns, in respect of any 
 prior estate which they hold as such bare trustee, &c. are 
 excluded from the office {ss. 26, 27) : And the person entitled 
 to the prior estate (but for the last exception) will be the 
 protector. Thus under a limitation, after the passing of the 
 act, to A. for the life of B. in trust for C, remainder to Z>. in 
 tail, C. will be the protector {ss. 28, 31) ; but a similar limi- 
 tation in a deed executed before the passing of the act would 
 by s. 31 confer the office of protector on A. Where a prior 
 estate is settled to the separate use of a married woman, she 
 will be the sole protector ; but if the prior estate of the 
 married woman be not so settled, she and her husband will, 
 as one owner, be deemed the protector (s. 24) :* where two 
 or three persons are owners, under a settlement, to such a 
 prior estate as would confer the privilege of protector, then 
 each shall be protector of his proportion (s. 23). When the 
 protector is a lunatic,f the Lord Chancellor or the Lord 
 Keeper or Lords Commissioners of the Great Seal, &c., will 
 be the protectors, and in case of treason, felony,* or infancy 
 of the protector, or it cannot be known whether he be living 
 or dead, or where the settlor excludes from the office the 
 person who would otherwise be protector, without naming a 
 substitute (as under s. 32 he is empowered to do) in all these 
 cases the Court of Chancery is protector (s. 33). It should 
 
 * In Re Wainewright, 1 Philips, 258 ; 1 1 Sim. 352. 
 
 t 3 Myl 8,'K. 245, 247, 250. 2 Myl. Sf Cr. 112. When 
 the lunatic is tenant in tail in possession, the Lord Chancellor 
 Is not protector. Wood in Re, 3 Myl. 8f Cr. 366.
 
 THE STATUTE OF 3 & 4 W. 4, c. 74. 129 
 
 also be noticed that the protector is not subject to any 
 control, in the exercise of his discretionary power of giving or 
 withholding his consent (s. 36). Prior estates conferring 
 the office of protector must be limited under the same deed 
 
 (.. 22). 
 
 Having noticed briefly the office of protector, a few obser- Power of dis- 
 
 . . <. J position, 
 
 vations are offered on the power oi disposition conferred upon 
 
 tenants in tail and persons entitled to base fees. 
 
 A tenant in tail in possession, may by deed in conformity By tenant in 
 
 tail in posses- 
 with the act, convey away the fee simple absolute, or any less sion. 
 
 estate {ss. 15, 21) or otherwise modify or dispose of the 
 
 estate, in the same manner as if he were seised in fee (s. 40), 
 
 except such tenant in tail were a woman seised ex provisio?ie 
 
 viri, under \\ H. 7, c. 20, by virtue of a settlement made 
 
 before the passing of the act (^ss. 16, 17) ; and except as to 
 
 reversions in the Crown, under 34 and 35 H. 8, c. 20 {s. 18).* Tenant in tail 
 
 A tenant in tail with remainders over, where there is a ^^ protector. 
 
 protector, cannot bar the remainders over expectant upon his 
 
 estate tail, without the consent of such protector, such 
 
 protector may concur either in the deed of disposition, or by 
 
 a separate deed (a-. 42) ; but without such consent, the tenant 
 
 in tail may acquire or convey a base fee co-extensive with the 
 
 continuance of issue under the entail, thereby barring such 
 
 issue ; as before the act he might have done by a fine with 
 
 proclamations. 
 
 If the estate tail be in remainder, the person entitled, may Tenant in tail 
 with the concurrence of the protector, bar all remainders and 
 other estates and interests, expectant upon his own estate 
 tail ; but, of course, leaving unaffected estates prior thereto. 
 
 A person having created a base fee by a deed of disposition Base fees, 
 under the act, may (but with the conseut of the protector, if 
 there be one) by a subsequent deed, enrolled according to 
 
 * A reversion in the Crown not within the 34 & 35 H. 8, 
 c. 20, is barred by the 3 & 4 W. A, c. 74. See sect. 15, and 
 Dtike of Grafton v. London and Birmingham Raihoay Com- 
 pany, 5 Binr). N. S. 27. 
 
 K
 
 130 
 
 OBSERVATIONS ON 
 
 the act, bar the remainders over (ss. 1, 19) so a subsequent 
 disposition, enlarging a base fee into an absolute fee, will 
 have the effect of confirming voidable estates in favour of 
 purchasers for value, but not against purchasers for value 
 without notice {s. 38). Base fees becoming united with the 
 reversion in fee are enlarged into an absolute fee, to the 
 exclusion of the reversion in fee (s. 39). 
 
 Copyholds. "phe preceding clauses of the act relating to freeholds are 
 
 made applicable to copyhold lands, so far as the different 
 tenures will admit ; except that a disposition of copyhold 
 lands by tenant in tail, if entitled at law, shall be by surrender ; 
 but if entitled only in equity, either by surrender or deed, as 
 provided by ss. 50 — 54, inclusive. 
 
 Protector, as If the consent of the protector of a settlement of copyhold 
 
 be given by deed, the deed of consent must be produced to 
 the lord, his steward, or his deputy, and an acknowledgment 
 from the lord, steward, or deputy of such production must be 
 indorsed on the deed ; and the deed with the indorsement 
 thereon must be entered on the Court rolls ; and a memoran- 
 dum of such entry must also be indorsed on ^the deed, and 
 signed by the lord, steward, or deputy {s. 51.) If the consent 
 of the protector be not given by deed, then it must be given 
 by the protector to the person taking the surrender ; and, if 
 the surrender be made out of Court, a memorandum must 
 be made of such consent signed by the protector ; and such 
 memorandum must be entered on the Court rolls. If the 
 surrender be made in Court, the lord, steward, or deputy 
 must cause an entry of such surrender, stating that such 
 consent was given, to be made on the Court rolls {s. 52.) 
 
 A tenant in tail of copyhold lands, if he have merely an 
 estate in equity, may, by deed dispose of them as he might 
 under the act dispose of freehold lands ; the deed must be 
 entered on the Court rolls, and if there be a protector, and 
 he gives his conseut by a separate deed, it must be executed 
 on or before the day of the execution of the deed of disposition ; 
 and such deed of consent must be entered on the Court rolls, 
 and a memorandum of such entry must be signed by the lord
 
 THE STATUTE OF 3 & 4 W. 4, C. 74. 131 
 
 steward or deputy, (s. 53 :) and being then entered on the 
 Court rolls, other inrolment of the deed will not be neces- 
 sary {s. 54.) 
 
 The clauses 55 to 69 inclusive, relate to the estates tail Bankrupts 
 and base fees vested in bankrupts, and will require brief 
 notice. 
 
 Tlie first clause repeals the statute 6 G. 4, c. 16, s. 65, 
 relating to estates tail of bankrupts, but not extending to 
 lands of a person adjudged a bankrupt on or before the 31st 
 day of December, 1833. 
 
 Section 56 empowers the commissioner, acting under a fiat 
 after the above day, absolutely to dispose of the lands of any 
 bankrupt, actual tenant in tail, to a purchaser, and for as large 
 an estate therein as the bankrupt himself could have conveyed 
 by disposition in conformity with the act ; providing, that if Protector, in 
 there shall be a protector not consenting, the disposition of ^^^^„*^, *" 
 the commissioner shall pass as large an estate, as the bank- 
 rupt, without such consent, could himself have conveyed, had 
 he not become bankrupt. A similar power is given by s. 57, 
 to the commissioner to convey a base fee vested in the bank- 
 rupt ; and by the following s. 58, the provisions of the act 
 respecting the consent of the protector are extended to cases 
 of bankruptcy, except so far as varied by the following (s. 59,) 
 which provides that the deed of disposition of freehold by the 
 commissioner must be inroUed in Chancery within six 
 calendar months after its execution ; and a disposition of 
 copyhold must be entei'ed on the Court rolls; and where there 
 is a protecfor, and his consent given by a distinct deed, it 
 must be executed on or before the execution of the deed of 
 disposition ; and both must be entered on the Court rolls : 
 and a memorandum of such entry on the Court rolls must be 
 indorsed on the deeds signed by the lord, his steward or 
 deputy. 
 
 If the disposition of the commissioners, being made without Base fees, 
 the consent of the protector, conveys only a base fee to the 
 purchaser, and if, during the continuance of the base fee, 
 
 K -2
 
 132 OBSEIIVATIONS ON 
 
 there ceases to be a protector, the base fee thereupon becomes 
 enlarged to as large an estate as the commissioner could have 
 originally conveyed, had there been no protector («. 60.) 
 
 A similar provision is contained in s. 61, for enlarging base 
 fees vested in the bankrupt. And s. 62, enables the commis- 
 sioner to confirm voidable estates created by the bankrupt in 
 favour of purchasers for valuable consideration, but not 
 against a purchaser for valuable consideration without notice. 
 Any acts of the bankrupt, void as against assignees, are ren- 
 dered void as against any disposition by the commissioner, 
 under the act {s. 63.) Subject to the pow^ers given to the 
 commissioner and to the estate in the assignees, and those 
 claiming under them, the 64th sect, saves to the bankrupt the 
 right of exercising all subordinate powers of disposition, in the 
 same manner as if he had not been bankrupt. In certain 
 cases the 65th sect, continues to the commissioners the power 
 of disposition over the entailed lands of the bankrupt, not- 
 withstanding his death. 
 
 By the 66th sect, the disposition by the commissioners of 
 the copyhold lands of which the bankrupt was not merely 
 entitled in equity is made to operate in the same manner as 
 a surrender ; and the purchaser is thereupon entitled to an 
 admission, as if they had been sun-endered to him in the 
 usual manner, the usual fines and fees being paid. The 67th 
 clause gives enlarged powers to the assignees for the recovery 
 of the rents of the bankrupt's lands, and for enforcing 
 covenants. The two following clauses 68 and 69, extend the 
 provisions of the act to the bankrupt's land in Ireland, but the 
 subsequent act of 4 8f 5 IF. 4, c. 92, renders further notice 
 of them in this place unnecessary. 
 Entailed Sections 70, 71, 72, relate to entailed money. By the first 
 
 ^' of these, the stat. 7 G. 4, c. 45, is repealed, except as to pro- 
 
 ceedings commenced before 1st January, 1834, and without 
 reviving stat. 39 & 40 G. 3, c. 56. By the succeeding section, 
 the previous powers of disposition are, with certain variations, 
 CNteuded to those who may be considered quasi tenants in
 
 THE STATUTE OF 3 & 4 W. 4, c. 74. 133 
 
 tail of money to be protluced by sale of lands of any tenure 
 
 directed to be sold,* or to be reinvested in land, or of money 
 
 to be laid out in the purchase of land. The 72nd sect, extends 
 
 the preceding provision to lands in Ireland now re-enacted 
 
 in the Irish act. The subsequent ss. 73 to 76, relate to the 
 
 inrolment of deeds of disposition, and the entry of such deeds 
 
 on the Court rolls in case of copyhold. 
 
 The 4 &• 5 W. 4, c. 92, for abolishing fines and recoveries -l & 5 w. 4. 
 . . . . . c c. 92, abolish- 
 
 in Ireland is, with a few omissions and alterations, a copy of ing fines and 
 
 the English act of the 3 ^- 4 TV. 4, c. 74 : the clauses re- J^XnJ''' '" 
 lating to lands of the tenure of ancient demesne {ss. 4, 5, 6,) 
 and copyholds, (ss. 50, 54, QQ, 76, 90,) are of course omitted 
 as inapplicable to Ireland. The 22nd section is an important 
 enactment, empowering persons (except expectant heirs of 
 persons living,) to dispose of contingent estates and interests 
 in lands by any assurance, whether deed, will, or other in- 
 strument, by which they may dispose of vested estates in 
 possession. Contingent and executory interests, called 
 possibilities, might, before the act, have been barred by fine 
 by estoppel ; and if coupled with an interest, might have 
 been assigned in equity ; but this clause confers a much 
 more extended power of disposition ; for the words of the 
 section, see Chapter on Possibilities, infra. In the glossary 
 clause, {s. 1,) the definition of the word " Estate" is extended 
 to interests, charges, rights, and titles, &c., whether present 
 or vested, future or contingent.] 
 
 3 Myl c$- K. 249. 
 
 END OF PART I.
 
 PRmCIPLES 
 
 OF 
 
 CONVEYANCING; 
 
 DESIGNED FOll 
 
 THE USE OF STUDENTS: 
 
 WITH 
 
 AN INTRODUCTION 
 ON THE STUDY OF THAT BRANCH OF LAW. 
 
 BY CHARLES WATKINS, 
 
 OF THE MIDDLE TEMPLE, ESQ., BARRISTER AT LAW. 
 
 PAET II. 
 
 WITH ANNOTATIONS BV 
 
 THOMAS COVENTRY, Esq. 
 
 BARRISTER AT LAW. 
 
 REVISED AND CONSIDERABLY ENLARGED BY 
 
 HENRY HOPLEY WHITE, Esq., 
 
 BARRISTER AT LAW, OP THE MIDDLE TKMPI.B. 
 
 LONDON : 
 WILLIAM BENNING & CO., LAW BOOKSELLERS, 
 
 (late SAUNDERS AND BENNING,) 
 
 43, FLEET STREET. 
 1845.
 
 137 
 
 PRINCIPLES 
 
 OF 
 
 CONVEYANCING, 
 
 Sfc. Sfc. 
 
 CHAP. IX. 
 
 OF AN ESTATE IN FEE SIMPLE. 
 An estate in fee simple is either absolute, or 2 bi. comm. 
 
 -oil ^^'*- 
 
 qualified, or hase.* An estate in fee absolute Litt. Kc.i. 
 
 ■* "^ Wriffht, Ten. 
 
 146. 
 
 * For all practical purposes the student may consider ^^''*- ^*'- 
 estates in fee as divided into — 1. Estates in fee simple. — 
 2. Estates in base fee. 
 
 The Jirst estate includes every other, and confers on the 
 owner the entire and absolute dominion over the property. 
 He can create every other estate out of it, and every other 
 estate [except an estate tail] will merge in it. The properties Wiscoi's case, 
 of this estate are, — 
 
 1. An unlimited power of alienation by deed or will. 
 
 2. An uncontrollable power in the commission of waste. 
 
 3. Liability to dower and curtesy. 
 
 4. Liability to [debts by specialty and simple contract.] ' ^- 4, c. 47, 
 
 and 3 ^ 4 76. 
 c. 104.
 
 138 
 
 OF AN ESTATE IN FEE SIMPLE. 
 
 is an estate limited to a person and his heirs, 
 general or indefinite. It is not confined to any 
 
 Infra, ch. In- 
 heritance. 
 
 2 Bl. Com. ri. 
 244. 
 
 54 Geo. 3, c. 
 145. Co. Liu. 
 499, b. 41, a. 
 
 3 Prest. Abs. 
 392. 2 Walk. 
 Cop. 364, 
 4th ed. 
 
 10 Co. 95. 
 Co.Litt.332,a.. 
 2 Ld. Raym. 
 778. Gilb. Ten. 
 121. 
 
 Supra, p. 117. 
 
 5. Descent to heirs general, according to the [old] canons 
 of inheritance, [in case of deaths happening before the 
 1st Jan. 1834, and in case of descents taking place on 
 the death of persons dying upon or after that day, 
 according to the law of inheritance, as now altered by 
 statute 34-4 W. 4, c. 106.] 
 
 6. Escheat* to the lord of the manor for want of heirs. 
 And, 
 
 7. Forfeiture for treason, murder, and felony. Treason — 
 to the king absolutely. Murder — to the king for a year, 
 day, and waste, and afterwards to the lord of the manor 
 absolutely. Other felonies — to the king for a year, day, 
 and waste, and afterwards the rents and profits belong 
 to the lord of the manor as bona felonum for the residue 
 of the felon's life, the legal estate being still in him. On 
 his death the estate descends to his heir. 
 
 The second estate arose where a tenant in tail with re- 
 mainder to a stranger aliened in fee, either by fine [before 
 the statutes 3 ^ 4 W. 4, c. 74, and 4 S,- 5 W. 4, c. 92,] 
 feoffment, or any other species of assurance, [not being a 
 common recovery,] the alienee had a base fee, that is, a fee 
 simple determinable on the [death of the tenant in tail, and] 
 failure of the issue under the entail. [A base fee may still 
 be created by any assurance of the tenant in tail, not being 
 such a disposition under the above act, as would bar not 
 only the issue, but all estates in remainder dependent on the 
 estate of the tenant in tail : such, for instance, would be a 
 conveyance by tenant in tail, (not having the immediate 
 
 * [In reference to the escheat and forfeiture of real and 
 personal estate vested in persons as trustees or mortgagees, 
 see Stat. 445 W. 4, c. 23, 1 4- 2 Vict. c. 69.]
 
 OF AN ESTATE IN FEE SIMPLE. 139 
 
 particular line or species of heirs, but is limited 
 to the heirs generally ; and it is the highest 
 estate which the law acknowledges in a subject. 
 
 remainder or reversion in fee,) without the consent of the 
 protector, see s. 34.] If the tenant in tail was in possession, 
 and [before the late act] levied, the fine with proclamations, 
 it was a discontinuance, and not only barred the issue, but 
 devested the estate in remainder : by the discontinuance of 
 the tenant in tail, the remainderman was driven to his 
 remedy by formedon, in order to regain the seisin or pos- 
 session of the estate. The issue being barred, the alienee 
 held in fee until the death of the tenant in tail, and a failure 
 of issue under the entail, on which event the remainder 
 commenced in right.] If the tenant in tail aliened by any 
 species of assurance which did not bar the issue, the base 
 fee was liable to be determined by the e7itry of the issue, 
 with this distinction, that if the assurance creating the base 
 fee were a feoffment, the issue were deprived of their right 
 of entry, being driven to their action of formedon. The base 
 fee during its existence had all the incidents of a fee simple 
 except the first ; and, unlike an estate tail, it merged in the 
 immediate remainder or reversion whenever the two estates 
 became united in the same person, [but this is not now the 
 case ; for by the 3 ^ 4 W. 4, c. 74, s. 39, the base fee is 
 enlarged to an absolute fee driving out the reversion ; a 
 similar enactment occurs as to lands in Ireland in the statute 
 4 4* 5 fV. 4, c. 92, s. 37.] If this estate were created by 
 lease and release, the owner could not levy a fine which 
 would have had any effect on the remainder, because a lease 
 and release being, in the language of the law, an innocent 
 assurance, it did not operate to discontinue the seisin under 
 the remainder ; and it was a rule that a fine could not 
 operate by non-claim against any person unless the estate of 
 that person was discontinued and turned into a right. Nor 
 could the tenant in tail, after having conveyed a base fee by
 
 140 OF AN ESTATE IN PER SIMPLE. 
 
 An estate in fee qualified or base is an estate 
 to A. and liis heirs till a certain event happen, 
 
 lease and release, or other innocent assurance, subsequently, 
 Supra, p. 118. by levying a fine to the releasee in fee, discontinue the 
 remainder, (^Seymour's case) 10 Rep. 96, unless the lease 
 and release and fine were parts of the same assurance, 
 2 Burr. 704. If the base fee were created by feoffment, 
 fine, or any other tortious mode of conveyance (a term which 
 will be explained in a future page), the operation of the 
 feoffment, fine, or tortious alienation was to convert the 
 seisin under the remainder into a right of action, which a 
 subsequent fine by the tenant of the base fee might have 
 barred by non-claim, if the remainderman slept upon his 
 right of action for five years after its commencement ; that 
 is, either for five years after the fine levied, or for five years 
 after the determination of the estate tail by failure of issue. 
 [But now by the statute 3^4 fT. 4, c. 27, s. 36, all real and 
 mixed actions are abolished, except a writ of right of dower, 
 or writ of dower unde nihil habet, or a quare impedit, or an 
 ejectment : and by section 39, it is enacted that no descent 
 cast, discontinuance, or warranty, after the 31st Dec. 1833, 
 shall toll or defeat any right of entry or action for the 
 recovery of land. Now by the statute 7 4" 8 Vict. c. 76, s. 7, 
 it is enacted that no assurance shall create any estate by 
 wrong.] 
 
 An estate in fee simple may be created by deed or will. 
 
 If by deed, the word " heirs" is absolutely necessary to its 
 
 creation ; and no other word or periphrasis can supply its 
 
 place, except the word " successors" in a grant to a copora- 
 
 Co. Liu. 8, b. tion. If, therefore, a grant be made to a man without the word 
 
 90 ff' « f 36 " heirs," or to him " for ever," or to him and " his assigns for 
 
 ever," or to him " in fee simple," or to him and " his heir" (by 
 
 some authorities), or to him " for an estate of inheritance in 
 
 [1 Cro. §• Mee. fee simple," [or to him <' and his issue,"] or to him " and his 
 
 ■ ' blood," or to him " and his successors," or to him " and his
 
 OF AN ESTATE JN FEE SIMPLE. 141 
 
 or to be defeated if such an event occur, as to 
 A. and his heirs tenants of the manor of Dale. 
 
 lineal or collateral descendants and relations" — in all these 
 
 instances he will take an estate for life only, although livery 
 
 of seisin be made therewith " to hold to him and his heirs 
 
 according to the within -written indenture." The common law I Plow. Com. 
 
 , , ., . 25, b. 
 
 adopted this strict and salutary rule to " avoid uncertainty, 
 
 the mother of contention;" and it has often been lamented Co. Liu, 13, b. 
 
 ,, , . , 29//en.6,f. 73. 
 
 that the same rule has not been adhered to m the construc- 
 tion of wills. So a limitation to " A. or his heirs," or " to 
 two persons and heirs," will confer but an estate for life, on Dubber v. Trol- 
 
 lope, Amb. 453. 
 
 account of the uncertainty. But a gift to one person and 
 heirs passes a fee ; and it is the better opinion, that a limi- 
 tation to a person and his heir will confer a fee. A fee simple 
 will pass to a corporation aggregate as to [the mayor and 
 
 commonalty of a city, the head and fellows of a college, or to] l Roll. Ab. 833. 
 1 1 » . 1 -IP • u C'u. Litt.QA,h. 
 
 a "dean and chapter, without any words oi succession : but i ^tf^ 437^ 
 
 a bishop, parson, or other sole corporation cannot take a fee 
 
 by deed without the word " successors." The word " heirs" 
 
 as to them will not be sufficient to carry the fee. 
 
 In this [as in all other legal estates of freehold] there may 
 
 now be a seisin, a use, and a trust. Thus, in a conveyance 
 
 to A., to the use of B., in trust for C, — A. has the seisin, B. 
 
 the use, and C. the trust. By the Statute of Uses-the seisin 
 
 of A. is transferred to B. immediately on the execution of the 
 
 conveyance. Before that statute the seisin or legal estate 
 
 remained in A. ; and B. took a mere equitable estate, that is, 
 
 an estate not recognised at law but only in equity, the trust 
 
 of the present day being then unknown. To create a fee 
 
 simple in the seisin, it was necessary to observe the rules 
 
 above alluded to : but a fee simple might have been created 
 
 in the use as it existed then by any words or circumstances 
 
 indicative of an intention in the parties to create such an 
 
 estate. Thus if A., in consideration of 100/. paid by B., 
 
 conveyed an estate to C. and his heirs, to the use of B.
 
 142 OF AN ESTATE IN FEE SIMPLE. 
 
 Here, so soon as A. or his heirs cease to be 
 tenants of that manor, the estate will cease. 
 
 without more, or to him and his assigns for ever, &c. B. would 
 have taken an estate in fee simple. The reason was, that 
 uses at that period being only cognizable in a Court of equity, 
 the Chancellor held it accordant with good conscience that 
 the intention of the parties should be carried into effect, 
 though, in doing so, some of the rigid rules of law might be 
 contravened. Then came the Statute of Uses, and enacted 
 that the " estate, right, title, and possession" of A. should be 
 transferred to and vest in B., in such quality, manner, form, 
 and condition as B. previously had in the use. Now, by the 
 last-mentioned form of limitation, B. took an estate in fee 
 simple in the use before the statute ; he should, therefore, 
 receive an estate of a similar description in the seisin and use 
 
 {Sed qu.'\ consolidated in him since the statute. The statute, moreover, 
 
 transfers the estate of the seisinee to the person having the 
 use ; that estate in the above instance was the fee simple, 
 which, therefore, should be considered as transferred to and 
 vesting in B. — B. then having the seisin in fee, and the use 
 in fee, the question is, whether that fee is to be reduced to 
 an estate for life, because the words creating the use were 
 insufficient at law to create a larger estate ; or whether all 
 uses since the statute are not to be viewed as legal estates 
 from their inception. That the seisin is not so completely 
 absorbed in the use as to be indistinguishable from it, is 
 
 Meredith v. evident from the fact that, at this day, the seisin must be 
 
 Joans, Cro. tar. commensurate with the use to create a fee simple. Thus, if 
 244. Co. LHt. ^ ^ 
 
 42. 1 Saiiini. an estate be conveyed to A. generally, or " in fee simple," &c. 
 (so as to give him a mere life interest by the rules of law) to 
 the use of B. and his heirs, B. will take an estate for the life 
 of A. only. The Statute of Uses effects a species of mei'ger. 
 At the present day, the trust merges in the legal estate, and 
 not vice versa. So, before the statute, the use merged in the 
 seisin, and not the seisin in the uses. The statute did not 
 
 Uses, 109.
 
 OF AN ESTATE IN FEE SIMPLE. 143 
 
 The estate in fee simple absolute may be con- 
 veyed ad infinitum ; but it being an estate of 
 
 alter the nature of the estates, but declared that the seisin 
 should be transferred to the use. The consequence of that 
 statutory conveyance was to merge the use in the seisin. It 
 is A.'s seisin, therefore, that becomes the estate in possession 
 in B. ; and that seisin being a fee simple, and the quantity of 
 interest in the use being also a fee simple (though not created 
 by the means the common law recognises), it should follow 
 that a Court of law would hold a conveyance to A. and his 
 heirs to the use of B. " in fee simple," as conferring an estate 
 in fee on B. ; and not merely an estate for life, as it would 
 indubitably do if the limitations were reversed. 
 
 It is laid down in the Year Books, that if a tenant in fee 27 Hen. 8, f. 6. 
 bargain and sell his land by deed indented and inroUed, 
 though the habendum be not to the bargainee " and his 
 heirs," yet he shall have the fee because the seisin in fee is in 
 the bargainor, and the indenture and consideration raised the 
 use which passed to the bargainee on the execution of the 
 deed. The statute has since transferred the seisin in fee to 
 the use. On the foregoing principles, then, it should follow 
 that a bargain and sale for value will, since the statute, 
 convey the fee simple of the bargainor to the bargainee 
 without the word " heirs." Such, however, was- not the 
 obiter opinion of Walmsley, J., who, after expressly referring Corbet's case, 
 to this case, observed, that " the uses since the statute are 
 transferred and made into an estate in the land ; and, there- 
 fore, he said, that if after the statute one person bargains and 
 sells land to another generally for money, he (the bargainee) 
 hath but an estate for life." Whether that opinion be well 
 
 founded is submitted to be at least doubtful. It is adopted by 1 Sound. Us. 
 
 ■, , ■ rr,i • T 1 1-2. 4tli ed. 
 
 ^fr. Sanders and other writers. Ihe point may occur it tlie Socalso4 Cru. 
 
 word " heirs" should be accidentally omitted in the limitation {^J^, ^^if*^," "V, 
 
 "^ niUes, It. 1«(). 
 
 of the use. '2 Bro. C. C. 
 
 233 3 7'/? 
 [In reference to iIk- ubsci valioiih in tlic preceding note of ji^r^' q y ^' 
 
 Mr. Coce/ilri/, the present editor would remind the student oI9. 2Fi;s.257.
 
 144 OF AN ESTATE IN FEE SIMPLE. 
 
 freehold in possession (for we are not here to 
 speak of reversions,) the freehold must actually 
 
 2 Bar. §• Aid. ^jj^j i^ is a rule too well settled now to admit of question. 
 
 128, et seq. . . ^ , ' 
 
 that the same words are requisite to create an estate m 
 fee in conveyances to uses, as are necessary in conveyances 
 at common law, and for that purpose words of limitation are 
 indispensable. In the case put of a conveyance to C. and his 
 heirs in trust for B. (the purchaser) without words of limita- 
 tion, B. does not take the fee in the use, by force of the 
 limitation, but, by construction of equity, he would be held 
 entitled to the equitable fee simple, and to call for a convey- 
 ance of it from C. The statute, therefore, could only confer 
 the estate at law commensurate with the use actually limited, 
 which was no more than an estate to B. for his life. 
 
 In the construction of trusts executed., the Courts of 
 equity uniformly adopt the rules of law applicable to legal 
 estates : but where the trusts are executory, as in articles 
 made in contemplation of marriage, where some further act 
 is to be done by the trustee to effectuate, by a future con- 
 veyance, the intention of the parties, Courts of equity, 
 considering the articles in the nature of instructions for a 
 settlement, have adopted a greater latitude of construction 
 than they would admit if applied to limitations of legal estates. 
 
 Rim. 113. 143 or trusts executed. This subject is fully discussed by Mr. 
 — 147, ed. 8. ^ -I 
 
 \i\A^ ■ f tearne. 
 
 Vide infra, J 
 
 chapter Uses Jt may also be proper to mention, that in fines and 
 
 and Trusts. / \ ^ i . , • r 
 
 recoveries an estate in fee passed by the simple operation of 
 
 those instruments without the word " heirs." Co. Lift. 9. 
 
 In short, they could not pass a less estate : but the uses 
 
 founded on the seisin of the conuzee or recoveror might, 
 
 of course, be moulded to any variety. And a rent granted 
 
 by one coparcener to her companion for equality of partition 
 
 will enure in fee without the word heirs, Co. Litt. 9. 
 
 wiLt.s. For the words in wills which have been adjudged to pass 
 
 estates in fee, in tail, and for life, to the devisee, see note in 
 
 the chapter on Devises.
 
 OF AN ESTATE IN FEE SIMPLE. 145 
 
 pass ; as by feoffment, lease and release, bargain 
 and sale enrolled,* &;c. 
 
 An estate in fee qualified or base may also be 
 transferred by the same means, subject to the 
 qualifications : but it cannot be conveyed dis- 
 charged of such qualification, [although pre- 
 viously to the 7^8 Vict. c. 76, it miglit have 
 been so conveyed] by wrong, as by a feoffment 
 in fee, which would gain a fee absolute by dis- 
 seisin,'}" and turn the reversion to a right, and 
 which right might have been barred by a fine 
 levied by the feoffee, unless the person having 
 such right claim within the time allowed by the 
 statute of Hen. b.'^ 
 
 * As the Author is not in this paragraph speaking of fees 
 simple in reversion, it may be inferred tliat a conveyance 
 of an estate in fee simple in reversion need not actually pass 
 the freehold at the time the deed is executed. Such an 
 inference is not founded in law. The freehold of the reversion 
 must actually pass out of the grantor into the grantee imme- 
 diately on the execution of the grant, and not at any future 
 period. The necessity of the proviso in the parenthesis is 
 not, therefore, very obvious. 
 
 f An estate gained by wrong is always a quasi fee : as the 
 law cannot take notice of a wrong, it cannot, of consequence, 
 set any limits to that wrong. See Hob. 323. — Note by Mr. 
 fVatkins. 
 
 I It is questionable whether a feoffment by a tenant of a 
 determinable fee would have turned the seisin under the 
 reversion into a mere right. To a due apprehension of the 
 position in the text, we must distinguish between a determin- 
 
 L
 
 ]46 OF AN ESTATE IN FEE SIMPLE. 
 
 Feame. A busc 01* qualified fee may by possibility con- 
 
 tinue for ever; and the common law did not, 
 therefore, permit any limitation on a fee either 
 
 able and a base fee : the former arises where a testator devises 
 an estate to Samuel Rolle, and his heirs of the name of 
 Samuel Rolle, for ever. Here no reversion arises to the 
 testator's heir at law, but only a possibility of reverter, which 
 Samuel Rolle cannot bar or affect by any means. This, 
 therefore, cannot be the qualified fee alluded to by the learned 
 Author. The only determinable fee which sustains a reversion 
 is that of the base fee described in a former page {ante, p. 138); 
 with respect to which it is observable, that if the remainder 
 or reversion be not turned into a right by the means resorted 
 to for the creation of the base fee, — that is, if the base fee be 
 created by an innocent assurance, — the reversion cannot 
 afterwards be turned into a right, either by the tenant in taij 
 or the owner of the base fee ; — not by the former, because he 
 being no longer seised by virtue of the entail, cannot discon- 
 tinue the remainder ; nor by the latter, because there is no 
 privity between the owner of the base fee and the remainder- 
 man. See Hard. 400. Irish T. R. 567, supra, p. 139. 
 1 Burr. 60, 2 Cowp. 689, 3 Price, 575, 3 Barn. ^ Cress. 388. 
 If the estate tail be spent and the base fee determines, then a 
 continuation of possession by the tenant of the base fee for five 
 years after a fine levied by him, when seised in right of the 
 base fee, would bar the remainderman or reversioner; which 
 is all, perhaps, that the learned Author intended to intimate 
 by the above passage. The conclusion of the paragraph 
 shews his meaning : " unless the person having the right 
 claim within the time allowed by the statute." What is that 
 time ? Five years after the right accrues ; consequently the 
 qualification is not absolutely discharged until five years 
 after the happening of the event upon which the determinable 
 fee depends. This, perhaps, is the inference intended by the 
 text.
 
 OF AN ESTATE IN FKE SIMPLE. 147 
 
 absolute or base.* A fee may now, indeed, be 
 limited on a fee by way of executory devise or of 
 shifting tise ; of which limitations I shall speak 
 in subsequent chapters. 
 
 * There may be a reversion or possibility of reverter on 
 a base or qualified fee ; but the base or qualified fee could 
 not be a particular estate supporting a remainder, because 
 the particular estate and remainder must have been created 
 together by the same deed, which it is evident could not be 
 the case with a base fee and reversion. 
 
 L 2
 
 148 
 
 CHAP. X, 
 
 OF AN ESTATE IN PARCENARY. 
 2 Bi. comm. CoPARCENERS alwavs take by descent ; and, 
 
 187.323. -^ . , 
 
 z;«. b. 3,c. 1. as they compose but one heir, they have, as to 
 
 Gilb. Ten. 72, r i i i i 
 
 i3.— shep. some purposes, but one ireenold ; but, as to 
 
 Touchst. 14, 111 7 
 
 '2, Cru.Diff. 391, Others, several; hence they may convey to each 
 
 Dig. tit. :^rc. other, either by release, by feoflment, or [they 
 
 might have conveyed to each other by fine* 
 
 * Coparceners, though they have a unity have not an 
 entirety of interest. They are properly entitled each to the 
 whole of a distinct moiety. They may be said to have a 
 several seisin as between themselves, and a joint seisin as it 
 regards strangers. Being seised in moieties there is no 
 survivorship between them. On the death of one coparcener 
 her moiety descends to her heir at law, subject to her husband's 
 curtesy if he be living, but the heir, (though a male, and a 
 collateral,) or the husband as tenant by the curtesy, holds 
 with the other coparcener in coparcenary. If the heir being 
 a male dies in possession, leaving a widow, she it is appre- 
 hended, will be entitled to dower, and hold in coparcenary. In 
 gavelkind the descent is to all the sons equally and they hold 
 in coparcenary. This tenancy is destroyed by devise or 
 alienation to a stranger. The effect of such devise or alien- 
 ation is to convert the coparcenary into a tenancy in common. 
 Co. Litt, 174, b. 175, a. But if there are three coparceners
 
 OF AN ESTATE IN PARCENARY. 149 
 
 previously to the recent statutes by which fines 
 and recoveries were abolished.] 
 
 and one aliens, the other two hold in coparcenary as between 
 themselves : with respect to the alienee, they hold in common. 
 The possession of one coparcener is [in cases of descents 
 happening upon deaths previous to the 1st January, 1834,] 
 that of the other so as to create a seisin in the other, and 
 carry her share by descent to her heirs, although that other 
 never actually entered, [as where A. died seised in fee 
 intestate, leaving two daughters his co-heirs, Elizabeth and 
 Sarah, but by different mothers. The entry of the widow, 
 the mother of Sarah, as her guardian in socage, was held to 
 constitute an actual seisin in Elizabeth, so that upon her death 
 her moiety descended to her heirs at law, and not to Sarah, 
 who would otherwise have taken as heir to her father. Doe v. 
 Keen, 7 T. R. 386. The effect of the new law in such a case 
 is worthy of notice. It renders the entry of the guardian in 
 socage nugatory, as conferring upon Elizabeth an actual seisin, 
 for that is no longer necessary ; descents being traced under 
 the Stat. 3 & 4 TV. 4, c. 106, to the last purchaser or person 
 entitled otherwise than by descent, {s. 1.) So that upon the 
 death of Elizabeth, as she took by descent, she was not a 
 purchaser within the meaning of the act, and the descent 
 was, therefore, to be traced from the father, who was the last 
 puchaser and Sarah was his heir. Had Elizabeth become a 
 purchaser, within the meaning of the act, then upon her death ' 
 intestate and without issue, her moiety would, by s. 9, have 
 descended from her to Sarah, her sister by the half blood, 
 as her heir.] Entry by one coparcener, when not adverse to 
 her companions [previously to the stat. 3 & 4 PF. 4, c. 27,] 
 enured to the benefit of all, Doe v. Pearson, 6 East, 173. 
 2 Smith, 295 : [but by s. 10, of that statute it is enacted, 
 that no person shall be deemed to have been in possession 
 within the meaning of the act by mere entry ; and by s. 12, 
 that the possession of one coparcener, joint-tenant or tenant
 
 150 OF AN ESTATE IN PARCENARY. 
 
 As to strangers^ they must convey their re- 
 spective portions or shares by such a conveyance 
 
 in common, who shall have been in the possession or receipt 
 of the entirety, or more than his share, for his own benefit, or 
 for the benefit of any other pejson than the person entitled to 
 the land or rent, such possession or receipt shall not be 
 deemed the possession or receipt of such last mentioned 
 person.] When an advowson descends to coparceners, they 
 present according to seniority, the eldest sister taking the 
 first turn, the second the next, and so of the rest. Plow. 333. 
 1 Bac. Abr. 693. Gtvil. Ed. 
 
 Coparcenary relates to the estate — joint-tenancy to the 
 person. — Hence a man may be coparcener with himself. 
 Suppose two moieties of an estate to descend upon the same 
 individual, one from his father, and the other from his 
 mother, he may fairly be said to possess the estate in 
 coparcenary ; for on his death without lineal descendants, 
 one moiety will descend to his heir on the part of his father, 
 and the other to his heir on the part of his mother. 
 
 That the seisin of coparceners is joitit, is evident from the 
 circumstance that one might [even before the statutes 4 & 5 
 Vict. c. 21, and 7 & 8 /i. c. 76] release to the other without a 
 bargain and sale for a year to vest the actual seisin : that it is 
 several, is evinced by the validity of a feoffment from one 
 coparcener to his companion. A tenant in common may 
 enfeoff his companion, because the freehold is several, but he 
 cannot release to him for want of a joint seisin. A joint- 
 tenant may release to his companion because the freehold is 
 joint, but he cannot enfeoff his companion for want of a 
 several seisin. Coparceners, however, may both release to 
 and enfeoff their companions ; for their seisin is both joint 
 and several. Co. Litt. 200, b. The effect of a release from 
 one coparcener to another is not exactly settled. Thus it is 
 remarked by an eminent writer, that a release from one 
 coparcener to another does not make any degree in the title : 
 the releasee being in by descent and not by purchase. 2 Pres.
 
 OF AN ESTATE IN PARCENAFiY. 151 
 
 as will pass the freehold ; as by feoffment, lease 
 and release, or bargain and sale ; or they may 
 
 Abs. 70. The consequence of this position is, that judgments 
 against the releasor are not incumbrances. But, by Lord 
 Coke, " if there be two coparceners aud the one release 
 all his right to the other, this shall enure by way of mitter 
 restate and shall make a degree, and without the word 
 ' heirs' shall pass the whole fee simple." Co. Lift. 273, b. 
 And this seems tlie preferable doctrine, as will appear by the 
 following considerations. When two persons take a joint 
 seisin on a descent or conveyance, the notoriety attendant on 
 that event is sufficient to support a release by one to the 
 other of them without a second delivery of seisin. Gilb. Ten. 
 72. Indeed a second delivery of seisin would be nugatory, 
 as the releasee is already as much in the seisin of the whole 
 estate as he would be by another delivery of it. A release by 
 one of two coparceners to the other of them is called as 
 above a release by way of mitter Testate. This species 
 of releasee does not operate directly by enlargement, for the 
 release has no estate in his companion's moiety which may 
 be enlarged. It simply conveys the estate of the releasor in 
 a moiety of the land to the releasee without the necessity of 
 livery of seisin. The releasee takes the estate by conveyance, 
 the seisin being already in him by descent. The seisin 
 is swallowed up in the estate so that the release operates by 
 extinguishment in one sense and by enlargement in another ; 
 but as it does not operate directly in either way, the law 
 properly calls it a release by way of conveyance, and if of 
 conveyance the releasee must be in by purchase and not by 
 descent. He must come in, in the per, by or through his 
 companion, and not by title paramount to him by their 
 common ancestor. The consequence is, that if a woman 
 entitled to an estate marries and dies, leaving two daughters, 
 and one of them releases to the other, and then they both die 
 without issue, one moiety of the estate will descend to the
 
 152 OF AN ESTATE IN PARCENARY. 
 
 covenant to stand seised ; [the conveyance l)y 
 fine and recovery being now abolished.] 
 
 Touchst. 292. But they cannot exchange with each other 'till 
 partition.* 
 
 heir of the releasee on the part of her mother, and the other 
 moiety will descend to her heir on the part of her father. It 
 should also follow that if one of the daughters, after the 
 death of her mother and before the release, makes her will 
 [before the 1st day of January, 1838,] and devises all 
 her estate and interest in the land, the devisee will take 
 only that moiety which the testatrix had at the date of 
 her will, and not that which she subsequently acquires by 
 the release ; and in this respect a partition (which may 
 be effected by mere agreement and makes no degree in the 
 title) is essentially different, as will be presently seen. A 
 republication of the will after the release would doubtless 
 enable the devise to carry the entirety of the land, the 
 words being " all the estate and interest of the devisor," 
 [and the effect would be the same under the 1 Vict. c. 26, 
 without republication ;] but if the words be (as in Luther v. 
 Kirhy, 8 Vin. 148) "all that my moiety" it is difficult to 
 perceive how a republication could make the will operate on 
 more than what it expressly states to be the subject of 
 it, viz. one moiety. Vide infra, p. 154, in notis. 
 
 * What have they to exchange ? They are seised in 
 moieties, and if they exchange each other's moieties they are 
 still in the same situation. Suppose two farms, ^. and B., 
 descend to two coparceners C. and D., and C. exchanges her 
 moiety in farm J. for D.^s moiety in farm B., and so vice 
 versa. By this process C. will become seised of farm B., and 
 D. of farm //. in severalty. But this is a partition, not 
 an exchange. It seems therefore true, as stated in the text, 
 that there cannot be an exchange between coparceners until 
 partition.
 
 OF AN ESTATE IN PARCENARY. 153 
 
 If there be two parceners, nnd they make 
 partition by consent, they mny release to each 
 other their respective moieties, and [even before 
 the statute 4^5 Vict. c. 21, which dispenses with [7 & 8 vkt. 
 the lease for a year in the conveyance by lease 
 and release] there would be no necessity for a 
 lease for a year (or bargain and sale,) as the 
 possession at the time of partition would be in 
 each.* 
 
 [No partition or exchange can now be valid except by 
 deed, 7 & 8 Vict. c. 76, s. 3.] 
 
 * As the undivided estate of coparceners is cast upon them 
 by act of law the severance of their interest was much favoured 
 of old, and thence it was, that partition by parol was allowed. 
 The third section of the Statute of Frauds, 29 Car. 2, c. 3, 
 now requires that all parol agreements respecting the transfer 
 of estates in land shall be reduced into writing, and signed 
 by the party to be charged therewith. A simple written 
 agreement, [before the statute 7^8 Vicf. c. 76,] made be- 
 tween persons free from the disabilities of infancy, coverture, 
 &c. was as effectual to sever the jointure as the plan usually 
 adopted by lease and release ; [but now partition must be by 
 deed, although before the above statute] an actual conveyance 
 was not essential to the validity of a partition. The deed of 
 partition is less than a grant. It does not operate by a fresh 
 investiture of the seisin, for coparceners are already in the 
 entire seisin by descent ; it simply dissevers the unity of 
 possession and makes no degree in the title. If the lands 
 were derived ex parte materna they will still continue 
 descendible in that channel,* and a will made prior to the 
 partition will remain in force notwithstanding a fine be 
 levied to perfect the severance. 8 Vin. 148. 7 Ves. 558. 
 
 * [ Doe V. Dixon, 5 AdoL Sf EL 83 i]
 
 154 OF AN ESTATE IN PARCENARY. 
 
 As to the will, however, some few observations remain to be 
 made. If a coparcener before partition devises " all her 
 estate and interest in the land," that will carry all her 
 interest in the allotment assigned to her on partition after 
 the date of her will ; for there is no new acquisition by the 
 partition, and the testatrix will have been seised of the same 
 estate at the respective times of making her will and of her 
 decease. So if she devise " all that her moiety of forty acres 
 of land in A." and she afterwards receives twenty acres on 
 partition as her share, the words of the will are sufficient to 
 include the whole twenty acres, for that is her moiety in 
 severalty. But if she devise all that her " undivided moiety" 
 it is questionable whether those words will pass a " divided 
 entirety" for non constat that she meant to pass an estate in 
 severalty by words strictly applicable to an estate in jointure, 
 and it admits of doubt whether such a devise would not fail 
 altogether for want of evidence of intention ; but some gen- 
 tlemen conceive that the will will be good as to one moiety* 
 of the lands received in severalty, and that the other moiety 
 will descend to the testatrix's heir at law. The general rule 
 is, " that if at the death of the testator there is no interest 
 in him to answer the description in the will the devise cannot 
 operate," per Lord Chancellor, in Knollys v. Alcock, 7 Ves. 
 565. But if two farms A. and B. descend to two coparceners 
 C. and D., and C. devises " all her estate and interest in 
 farm A." or "all that her moiety in farm A." and on par- 
 tition the entirety of farm B. is allotted to her, the devise is 
 rendered nugatory by this partition, for want of applicability 
 in the words of the will to the thing devised. 
 
 In Luther v. Kirby, 8 Vin. 148. 3 Pr. Wms. 169, (B.). 
 A. and B. were tenants in common of the manor of Bemjleet 
 and several farms and lands thereto belonging. A. made her 
 will, and devised unto trustees " all and singular her moiety 
 
 * [It would seem that such would be the effect upon one 
 moiety at least under the recent Statute on Wills, 1 Vict, 
 c. 26, s. 23, in wills made upon or since 1st Jan. 1838.]
 
 OF AN ESTATE IN PARCENARY. 155 
 
 ol the said manor and lands." Afterwards A. and B. made 
 partition by fine (i5. being a married woman,) and A. died 
 without republishing her will, leaving a son who contested 
 the validity of the will. Lord Chancellor King directed a 
 case to be made for the opinion of the Court of King's 
 Bench, whether the partition and fine revoked the will ; the 
 Judges certified, " that the will was not thereby revoked, 
 but that the share of the said A. in the lands contained in 
 the deed and fine passed by her will to the trustees therein 
 named." Peere Williams adds, " the Lord Chancellor con- 
 curred." 3Ir. Preston in his Treatise on Abstracts (adopting 
 the argument of Sir James Mansfield when at the Bar) con- 
 siders it difficult to comprehend how the accessional share 
 could pass by the anterior will. 2 Ahs. 72. Sir James Mans- 
 H,eld puts this case : " If a person seised as a coparcener of 
 an estate in Surrey and another in Middlesex devises all his 
 undivided moiety of the estate in Surrey to A., and his 
 tmdivided moiety of the estate in Middlesex to B., and after- 
 wards on partition agrees to relinquish his interest in the 
 Surrey estate and to take the entirety of that in 3Iiddlesex, 
 the partition, so far as it does not disturb his interest in the 
 Middlesex estate, is no revocation, and the devise will take 
 effect so far : but as to the Surrey estate it is gone ; and the 
 additional interest acquired in Middlesex not being devised 
 goes to his heir." 7 Ves. 561. The Court did not in direct 
 terras deliver an opinion on this point ; but said, that if by 
 means of the partition the words of devise cannot possibly 
 amount to a description of the thing, the will must be revoked. 
 Knollys v. Alcoch, 7 Ves. 5Q5. In that case A. and B. were 
 entitled to estates in Berkshire, Lincolnshire, and Oxford- 
 shire, in coparcenary. A., by will dated June, 1795, devised 
 " all her real estates in the counties of Lincoln and Oxford" 
 to Alcock and his heirs ; and " one full half of her undivided 
 moiety of the Berkshire estate'' to Martin, in fee ; and " the 
 other half part" to Longmire, in strict settlement. [The case 
 is not very succinctly reported : but it appeared that, before
 
 156 OF AN ESTATE IN PARCENARY, 
 
 the date of her will, the testatrix had executed a conveyance 
 to Aleock of all her interest in the Lincolnshire and Oxford- 
 shire estates, which by her will she distinctly confirmed. 
 This conveyance was proved to be not merely voluntary but 
 fraudulent; and Lord Rosslyn throughout his decree treats 
 it as absolutely void : yet, with the concurrence of the heir, 
 he seems to have considered this void conveyance as well 
 confirmed by the will. 5 Ves. 649. 7 Ih. 560. Putting the 
 conveyance out of the case, the devise stands as above stated.] 
 In Nov. 1795, A. and B. entered into a written agreement 
 for a partition, whereby it was agreed that A. should enjoy 
 the Lincolnshire estate, and B. the Berkshire estate, in 
 severalty ; and that the difference in value between those 
 two estates, whatever it might be, should be made up out of 
 the Oxfordshire estate. It appeared that the Lincolnshire 
 and Oxfordshire estates were but both equivalent to the 
 Berkshire estate ; and Lord Rosslyii therefore held, that as 
 the testatrix, at the time of her death, had departed with all 
 interest in the Berkshire estate, Martin and Longmire took 
 nothing by the said will. 5 Ves. 649. On petition of rehearing, 
 T^ord Eldon observed, that " if a partition is effected, either 
 by compulsion or agreement, and the thing done is nothing 
 more than partition, it is not a revocation ; but the slightest 
 addition to that purpose will make it a revocation ; if parties 
 will even introduce a power of appointment prior to the 
 limitation of the uses, that very slight circumstance, as it 
 would be considered if it were res integra, is sufficient [but 
 the descent it is presumed would not be altered thereby :] 
 if coparceners have an estate in Berkshire, after partition 
 that would be a moiety of the Berkshire estate, and it would 
 pass by the will ; but if it is made so that the words of the 
 will cannot by possibility amount to the description of the 
 thing, how can it not be a revocation ? This testatrix at her 
 death has no Berkshire estate ; are the devisees to take an 
 equivalent out of the Lincolnshire and Oxfordshire estates? 
 I cannot say that, for this will does not operate upon the
 
 OF AN ESTATE IN PARCENARY. 157 
 
 tenements in those counties. It seems, therefore, that taking 
 it to be matter of partition, yet if the manner of it destroys 
 the interest of the testator in the thing given, so that at his 
 deatli there is no interest in him to answer the description, 
 the devise cannot operate ; as to the particular point, what 
 Martin and Longmire take by the will, I cannot think that 
 Lord Rosslyn's decree has miscarried upon that : the decree 
 must be affirmed." KnoUys v. Alcock, 7 Ves. 566.
 
 158 
 
 CHAP. XI. 
 
 OF AN ESTATE IN JOINT-TENANCY. 
 
 2 fi/. Com. 179. Joint-tenants always take by purchase:^ and 
 /J<<. b. 3, c. 3. ^ ' , p " . 
 
 the proper and best mode oi creating an estate 
 
 in joint-tenancy is to limit " to ^. B. and C. D. 
 
 and their assigns," if it be an estate for life; 
 
 or '^ to A. B. and C. Z). and their heirs," if in 
 
 Buti.n.(i)to fee.t The limitation sometimes made "to A. B. 
 
 Co.Litt.\9\,s,. ' 
 
 n.(61). 
 
 * And there may be a joint-tenancy for life or in fee, but 
 not in tail ; unless the donees being male and female may law- 
 fully intermarry. As if an estate be limited to two brothers, 
 and the heirs of their bodies ; if this were a joint-tenancy, 
 then in the event of one brother dying leaving heirs of his 
 ]t)ody, the whole would go over to the survivor, in direct 
 opposition to the terms of the limitation ; but the statute de 
 donis has ordained that the wiU of the donor be implicitly 
 observed ; and, therefore, a limitation as above has been con- 
 strued to give the donees estates for life in joint-tenancy with 
 several inheritances in tail. Dyer, 326. Co. Litt. 184, a. 
 
 f The invariable rule at law is, that when lands are con- 
 veyed to two or more persons without any modifying or dis- 
 junctive words, they take as joint-tenants. The rule is the 
 same in equity, but it there admits of exceptions. " If two 
 people join in lending money on mortgage, equity says, it 
 * could not be the intention that the interests should survive ; 
 
 though they take a joint security, each means to lend his own
 
 OF AN ESTATE IN JOINT-TENANCY. 169 
 
 and C. D. and the survivor of them, and tlic \ ^"'''"%;^^- 
 hdrs of such survivor '' is objectionable, as, if ^wf v- 
 
 -J > J Smyth, Cro. 
 
 there be nothing to control the legal operation t«r. 102. 
 
 and take back his own." Per Lord Apsley, 3 Ves. 631. 
 S. L. 2 Ves. 258. The consequence is, that though the 
 entire legal estate is in the survivor, yet the personal repre- 
 sentatives of the deceased mortgagee are necessary parties to 
 a reconveyance, in order to obtain a discharge of their share [7 §• 8 Vict. 
 of the mortgage money ; and, until the money be re-paid, the '^' '^' *• ^J 
 surviving mortgagee is, in equity, a trustee for the per- 
 sonal representatives of his deceased companion. Carth. 16. 
 Hence it is necessary, when trustees advance money on 
 mortgage, to add a clause making them joint-tenants of the 
 money as well as of the estate. If the mortgage be foreclosed, 
 or the mortgagees purchase the equity of redemption, and 
 take a conveyance, without dissevering words, equity still 
 holds them to be tenants in common according to their 
 proportions in the money, although the legal estate be held 
 by them in joint-tenancy, unless by express stipulation the 
 contrary is provided for. Pr. Ch. 332 ; 2 Ves. 258. When 
 trustees advance money, it is proper to limit the estate to 
 them in joint-tenancy, with a declaration that they shall be 
 joint-tenants in equity : but when two persons advance money 
 on mortgage in equal shares, it is a desirable object to give 
 them distinct and descendible interests in the land. For this 
 purpose the usual words of severance should be added ; or an 
 aliquot part of the estate, equal to the sum advanced by each 
 mortgagee, may be limited to each for a term of years, with 
 cross remainders between them in fee. This plan is men- 
 tioned by Mr. Coote in his Treatise on Mortgages, Ed. 2, 
 pp. 128, 722, but he does not point out any particular advan- 
 tages resulting from it, further than as it keeps the mort- 
 gagees on an equality, and yet gives them distinct liens on 
 the whole estate. 
 
 Another exception in equity is, that when two persons pur-
 
 160 OF AN ESTATE IN JOINT-TENANCY. 
 
 of the terms, they would give [what before the 
 7^8 Vict. c. 76, was] a contingent re^nainder to 
 the survivor* 
 
 chase aa estate, and advance the purchase money in unequal 
 proportions, they are deemed to be tenants in common, 
 although the conveyance may be made to them generally, 
 provided the inequality of the consideration be apparent on 
 the conveyance. If they advance the money in equal shares 
 and take a conveyance generally, a Court of equity has 
 nothing whereon to ground an inference that this was not 
 a joint purchase of the chance of survivorship, and they will 
 be held to be joint-tenants accordingly ; but if one of such 
 joint-tenants lays out considerable suras in repairs and im- 
 provements, he will be held to have a lien on the land for the 
 sums so expended. Lake v. Gibson, 1 Eq. Ca. Ahr. 291. 
 1 Vern. 217. 3 Pr, Wms. 158. Wares, merchandise, and 
 stock in trade, belonging to joint-merchants or partners, sur- 
 vive to the representatives of the deceased partner ; the rule 
 hoXng jus accrescendi inter mercatores locum non habet. So, 
 if a freehold shop or warehouse be conveyed to merchants or 
 partners in trade, it is conceived that in equity they will be 
 tenants in common, and that the survivor will be held to be 
 a trustee of the legal estate, as to one moiety in trust for the 
 personal representatives of his deceased companion. 
 
 * [The remainder in the above limitation being contingent 
 so long as the survivor is not ascertained, could not, before 
 the Stat. 7 & 8 Vict, c. 76, if relating to lands in England or 
 Wales, be conveyed at late, so as to transfer the estate in 
 remainder to the grantee, should the grantor eventually be 
 the survivor : but it might have been assigned in equity, that 
 is, it might be the subject of agreement so as to bind the 
 party contracting, should the remainder ever vest in him. 
 But now by the above statute it may be so conveyed, s. 5. 
 Weak V. Lower, I^^fore the stats. 3 &4 fV. 4, c. 74, as to England, and 
 Polkx. 54. 4 & 5 fV. 4, c. 92, as to Ireland, it might by fine have been
 
 OF AN ESTATE IN JOINT-TENANCY. 161 
 
 [But where the gift is to A. and B. and the [Doe v. Sot/,e. 
 survivor of them their heirs and assigns for ever, Ad. u-ia.] 
 
 extinguished or bound by estoppel: It might also then, [and Daviesv.Bunh, 
 until the recent stat. 7 Sf 8 Vict. c. 76, it might have been] ^g 
 destroyed without a fine, by the concurrence of the tenants 
 for life, {A.B. and C. D. in the [limitation objected to)] with 
 the reversioner or his heir, during the contingency, in a 
 conveyance in fee to a third person : this operated as a sur- 
 render of the life estates, and a conveyance of the reversion : 
 the former merged by union with the fee, and consequently 
 the contingent remainder was destroyed. Purefoy v. Rogers, 
 2 Saund. 380. Thompson v. Leach, 2 Ventr. 198, Fearne 
 C. R. 317, 358, ed. 8, [but now by the statute 7 4-8 Vict. 
 c. 76, s. 8, such a remainder cannot be destroyed merely by 
 the destruction or merger of any preceding estate, or its 
 determination by any other means than the natural effluxion 
 of the time of such preceding estate, or some event on which 
 it was in its creation limited to determine.] 
 
 [The preceding observations may be illustrated by facts 
 which occurred in practice. Lands were devised to //. B. 
 and C. D., and to the survivor of them and his heirs : A. B. 
 was the testator's heir at law, and contracted with C. D. for 
 the sale of his interest. By lease and release, in consideration 
 of the puchase money, A. B. and C. D. conveyed to E. in fee, 
 upon trust to reconvey to C. D. in fee ; and a short reconvey- 
 ance was accordingly made by indorsement to C. D., who by 
 this mode acquired the absolute fee. 
 
 With respect to lands in Ireland, contingent remainders 
 might be conveyed by virtue of the 22nd section of the stat. 
 4 4" 5 W. 4, c. 92, in the same manner as vested estates : 
 and now with respect to lands in England and Wales, they 
 may be conveyed by virtue of the 7 4" 8 Vict. c. 76, s. 5. 
 See Chapter XV III. on Possibilites, infra. 
 
 In limiting estates to trustees, the devise or conveyance 
 should be, " to and to the use of the trustees, their heirs and 
 
 M
 
 162 OF AN ESTATE IN JOINT-TENANCY. 
 
 they will take a joint-tenancy in fee and not 
 estates for life, with remainder in fee to the 
 survivor.] 
 
 See Co. lAu. In the creation of a joint-tenancy it is not only 
 (i:3')rai!d i" necessary that the estate to the several persons 
 &c"74thed.') he limited by the same deed, but the estate in 
 239,3 e . |.]-jgj^ must vest ttt One and the same time ; for if 
 an estate be limited to A. for life, with remainder 
 to the heirs of B. and C. (JB. and C. being sup- 
 posed to be living,) and B. die during the par- 
 ticular estate, when one moiety would vest in his 
 heirs, and afterwards C. die, in the lifetime of 
 A., when the other moiety would vest in his 
 heirs, the heirs of B. and C. would take in 
 common. 
 
 But if the estate be limited hy way of use it 
 would be otherwise; as the estate would be in 
 the trustee 'till the uses arise ; and as they arise, 
 the cestui que use shall be in by the original feoff- 
 ment or deed.* 
 
 assigns ;" but powers should be limited to trustees " and the 
 survivor of them, his executors or administrators or their or 
 his assigns. 1 Barn. 8f Aid. 608. 3 Madd. 272, for even in 
 powers relating to real estate, such as powers of sale and 
 exchange, it is advisable to give the power to the personal 
 representatives of the surviving trustee to prevent the incon- 
 venience of an infant heir. Bull, note 1 Co. Lit. [vii. 2] 
 271, b., see also 1 Chance on Pow. [696] ]. 
 
 [* This paragraph is very obscure. It is submitted with 
 deference to the learned author, that the heirs would take as 
 tenants in common under the circumstances supposed in the
 
 OF AN ESTATE IN JOINT-TENANCY. I Go 
 
 As joint-tenants are as to all purposes* seised i vent.i^. 
 
 . . , Cro. Jnc. d;J6. 
 
 per mie et per tout they cannot grant nor bargain 
 
 and sell, nor surrender, nor devise, f to each other ; ^ ^««'- ^8. 
 
 ' ' • Cro. Jac. 096. 
 
 Perk. S 580, 
 
 587. Touch. 
 
 text, whether the limitation take effect at commou law, or by !3o;j. Powell 
 
 the operation of the Statute of Uses, or by way of trust ; as Touch. •292'. 
 
 in the three following forms of limitation, (namely) habendum, ^f?'- . ^''"' 
 
 to y/. for life, with remainder to the heirs of B. and C, or to 
 
 and to the use of y^. for life, remainder to and to the use of 
 
 the heirs of B. and C, where the limitation takes effect at 
 
 common law, or where the habendum is to J. S. and his heirs 
 
 to the use of A. for life, remainder to the use of the heirs of 
 
 B. and C, in which case the limitation takes effect by the 
 
 statute, or where the habendum is to and to the use of J. S. 
 
 and his heirs upon trust for A. for life, remainder, upon trust 
 
 for the heirs of B. and C. If B. and C. die at different 
 
 periods in A.^s lifetime, their heirs take as tenants in 
 
 common.] 
 
 * Lord Coke says, they are seised " totum conjunctim et 
 nihil per se separatim " so that for the purposes of forfeiture 
 and alienation they are not seised of a moiety separatim. 
 [Thus '\i A. and B. are joint-tenants in fee of 100 acres, A. 
 may convey an undivided moiety of the 100 acres, but not the 
 entirety of 50, as the moiety of the 100 acres : if he affects so 
 to convey 50 acres, an undivided moiety only of such 50 acres 
 will pass.] 
 
 f We have seen that a partition by a coparcener is not 
 a revocation of his prior will ; but as a joint-tenant has no 
 devisable interest while the jointure continues, a partition of 
 his interest will not have any effect on his prior devise : by 
 republication, however, of a joint-tenant's will after partition 
 it may be made to embrace the purparty derived by partition 
 if the words are ample enough to comprise the estate. Sioift 
 V. Roberts, 3 Burr. 1496. If a joint-tenant [by a will made 
 before the isi January, 1838] devise to ^. "all his estate 
 and interest" in the lands in jointure, and then his companion 
 
 M 2
 
 165 
 
 10*4 OF AN ESTATE IN JOINT-TENANCY. 
 
 nor can they exchange with each other ; nor can 
 one of them enfeoff his companion. 
 
 dies, whereby he becomes entitled to the whole, this will, un- 
 less it be republished after the survivorship has accrued, [will 
 2 Mank ^ S. be inoperative.] Hence it should appear that the estate in 
 the hands of the survivor is viewed as a neiv acquisition. 
 
 [But by the recent statute, 1 Vict. c. 26, for the amendment 
 of the law of Wills made after the 31st December, 1837, the 
 words of the above devise would, under the concluding branch 
 of sect. 3, and sect. 24, pass all the surviving joint tenants' 
 estate in the entirety, without republication of his will after 
 the death of his companion. A devise by one of two joint- 
 tenants in fee of his moiety is void against his companion sur- 
 viving ; the maxim \sjus accrescendi prcefertur ultimo volun- 
 tati. The law is not altered by the above act in this respect, 
 the language of the first branch of the sect. 3, excludes estates 
 held in joint-tenancy. All charges by one joint-tenant which 
 cannot be supported at law or in equity, as a severance 
 either entire or partial, are void against his surviving com- 
 panion. An alienation by one of two or more joint-tenants 
 of his share is an entire severance ; so a partial alienation 
 is a severance pro tanto, for alienatio rei prcefertur juri 
 accrescendi. A grant of a rent-charge by one of two joint- 
 tenants, according to Littleton, s. 286, will not bind his 
 companion surviving, for jus accrescendi prcefertur otieribus ; 
 and he gives as a reason for the diversity between this case 
 of a grant of a rent-charge and a lease, which is binding on the 
 survivor, that notwithstanding the grant of the rent-charge, 
 the tenements remain as they were before, no one having any 
 right to any parcel of the tenements but the joint-tenants 
 themselves ; and the tenements are in the same plight as they 
 were before the charge. But where a lease is made by one 
 of two joint-tenants, presently, by force of the lease, the lessee 
 hath right in the same land during his term. Litt. s. 289, 
 2 Ver7i. 323.] The lien of a judgment may be said to be in
 
 OF AN ESTATE IN JOINT-TENANCY. ' J6*0 
 
 But each may sever the tenancy at his pleasure, 
 by granting his portion over to a stranger, either 
 to the use of sucli stranger or to the use of him- 
 self, by the usual mode of conveying a freehold,* 
 
 expectancy during thejointure. If it be against the joint-tenant 
 who survives, then it attaches on the land in severalty in the 
 usual course. If it be against the deceased joint-tenant, [and 
 execution is not sued out in his lifetime,] then as against the 
 survivor it is altogether nugatory. 6 Co. 78, Co. Lit. 184, a. York v. Stone. 
 A legal mortgage by one joint-tenant is a severance of the « • -^ • 
 jointure, and prevents a survivorship. At law a mortgage by 
 a joint-tenant for years is an entire severance of the jointure, 
 whether it be of all his interest in the term, or by way 
 of under lease. Co. Litt. 192, a. [So if the above had been 
 equitable mortgages, there would have been a severance in 
 equity. Yorkw. Stone, 1 Salk. 158. If an agreement by one 
 joint-tenant to sell his share in a severance in equity, there 
 can be no valid reason why an agreement to mortgage should 
 not have the same effect in equity as the mortgage if legal 
 would have at law ; upon the same principle it is that an 
 agreement to make partition is an equitable severance. 
 2 Bro. C. C. 224. Per Lord Thurlotc, C] But a mortgage 
 by demise by a joint-tenant of the fee would not, it is con- 
 ceived, work a severance of the jointure in the freehold, as a 
 lease is neither a severance nor a suspension of the jointure ; 
 vide next note. As a further consequence of the right of 
 survivorship an estate in joint-tenancy is not subject to 
 dower or curtesy. Co. Litt. 30, a., 37, b., 183, a. If 
 therefore one of two joint-tenants aliens during the jointure, 
 his wife will not be entitled to dower ; [but dower will, of 
 course, attach upon the moiety of his companion ; for after 
 the alienation he will hold his moiety in severalty]. 
 
 * If one bargained and sold all his estate and interest in a 
 particular farm, and his companion died before the bargain
 
 163 OF AN ESTATE IN JOINT-TENANCY. 
 
 and sale was inrolled, whereby the bargainor at the time 
 of inrolment was seised of the whole farm, yet the bargainee 
 should only hold a moiety in common with the heir of 
 the deceased joint-tenant, as the bargain and sale severed the 
 tenancy at the time of its execution. Co. Litt. 186, a. If one 
 joint-tenant in fee grants his moiety to a stranger for life, 
 this is a suspensioii — not a severance of the jointure. After 
 the death of the lessee the jointure revives, if the joint- 
 tenants are living : during the life of the lessee, he and the 
 other joint-tenant are tenants in common. If either joint- 
 tenant dies during the suspension, his heir will be entitled 
 to his moiety, for during the suspension the inheritance is 
 severed. Lord Coke treats the inheritance during suspension 
 of the freehold as in reversion, but it is not wholly in 
 reversion — one moiety of it is in possession. Co. Litt. 191, b., 
 192, a. A lease for years by one joint-tenant to a stranger 
 works neither a severance nor a suspension, but it passes 
 only a moiety of the estate though it purport to embrace the 
 whole ; and although the lessor should afterwards become 
 the survivor, or obtain the entirety by release, a moiety only 
 will be leased. 2 Roll Abr. 89. 2 Pres. Ahs. 63. If the 
 jointure continues to the time of the death of the lessor, the 
 surviving joint-tenant will be bound by the lease as to 
 the moiety comprised in it, [but the rent, not being incident 
 to the reversion of the surviving joint- tenant, will cease. 
 Dyer, 187, a., eVj/ra, Chapter XXII. Rents, in notis.~\ 
 
 [Where one of three or more joint-tenants conveys, it is a 
 severance in respect of his share only ; the remaining shares 
 continue to be held in joint-tenancy, and, consequently, 
 subject to survivorship between the remaining joint-tenants. 
 This frequently occurs in practice where real estates have 
 been devised or conveyed to three or more trustees and their 
 heirs, which, as observed in the commencement of this 
 chapter, creates a joint-tenancy. A conveyance from them 
 is prepared, eitlier to a purchaser or to the other trustees ; 
 ./. one of the three trustees executes, and B. the second 
 trustee dies without executing the deed, and afterwards C,
 
 OF AN ESTATE IN JOINT-TENANCY. 167 
 
 or compel a partition, by statute ; or one may 
 release to his companion* 
 
 But joint-tenants may exchange with a stranger , 
 or surrender to the immediate reversioner.'^ 
 
 the third dies without executing. The execution by A. is a 
 severance only as to his third ; the two remaining thirds 
 continued in B. and C. in joint-tenancy, and ultimately 
 survived to C, from whose heir at law, or devisee of estates 
 held in trust, a conveyance of these two-thirds will be re- 
 quisite. It is scarcely necessary to remind the student, that 
 if ^. and B. had executed, and only C. died before executing, 
 a conveyance from his heir at law would also be necessary to 
 complete the title in respect of his third. Co. Lift. 304. 
 Gale V. Gale, 2 Cox's Ca. 156. Denne v. Judge, 11 East, 
 288. 2 Pres. Abs. 60. If B. and C. had died before the 
 execution of the deed by A. in the case above supposed, his 
 conveyance would of course convey the entirety.] 
 
 * In this releasee the releasee is already supposed to be in 
 the tenancy by the feudal contract which created the jointure, 
 and the release operating merely as a discharge of the benefit 
 of that contract from the one joint-tenant to the other, the 
 addition of words of inheritance in the release cannot be 
 necessary, as the releasee has the inheritance already by the 
 former conveyance, supposing that to be in fee. Hence a 
 release from one joint-tenant to his companion does not make 
 a degree in the title, it operates more by mitter le droit than 
 mitter V estate. Co. Litt. 273, b., and n. 2. But though this 
 release will, for all purposes of conveyance, pass the moiety 
 of the releasing joint-tenant to his companion, yet the usual 
 practice was to take a conveyance by lease and release. 
 
 [f If a grant is made to two jointly, the one capable of 
 taking and the other not, lie who is capable shall take the 
 whole. Humphrey \. Tayleur, Ambl. 138. Per Lord Hara-
 
 168 . OF AN ESTATE IN JOINT-TENANCY. 
 
 wicke. So that if an estate be limited to two, as joint-tenants, 
 and one of them dies before execution, the deed shall operate 
 to pass the entirety to the grantee who survived. See also 
 Davis V. Kemp, 2 Carters Rep. 3fr. Preston observes, upon 
 this principle, it is, " that when a conveyance is to be made 
 by a person resident abroad, for the benefit of a person 
 resident in this country, it is advisable that the conveyance 
 should be to and to the use of the purchaser and two other 
 persons, in trust for the purchaser, and to the intent that 
 the trust or beneficial ownership may be deemed and con- 
 sidered as vested in him and his heirs in fee simple from the 
 date of the conveyance, notwithstanding his death before the 
 execution by the grantors," — Note Watk. Princ. by Preston, 
 1823.] * 
 
 In perusing abstracts it sometimes occurs, under the old 
 uses to bar dower, that an attendant term is assigned to 
 the person who is trustee of the fee in joint-tenancy with 
 the purchaser. A question then arises, whether there is a 
 merger of the term. It is apprehended, that there is a 
 merger of the whole term, and not merely of a moiety of it ; 
 for as each joint-tenant is seised of the entirety, there is a 
 legal union of the whole term and entire fee in one and the 
 same person at one and the same time, in one and the same 
 right. A distinction seems to be taken by Lord Coke between 
 a surrender and a grant in this respect. He is understood 
 to say, that if a lessee for life surrender to one of two joint- 
 tenants of the reversion, this shall enure to them both ; but 
 if a lessee for life grant to one of two joint-tenants of the fee, 
 the grantee shall take a moiety in fee, and as to the other 
 moiety, he shall have an estate pour autre vie, with remainder 
 [7^3 Vict. to his companion in fee. Co. Lift. 192, a. b., 214, a. The 
 c. lb, s. 2.] reason may be, that livery of seisin was necessary to pass the 
 particular estate in the latter instance, and that, therefore, 
 tlie grantee must enter of a different estate to that which he 
 before possessed in joint-tenancy, and so an essential unity of 
 the jointure will be destroyed, and the tenancy consequently 
 severed ; whereas livery of seisin was not necessary to a sur-
 
 OF AN ESTATE IN JOINT-TENANCY. 169 
 
 render. Thomson v. Leach, 2 Salk. 618. An assignment 
 of a term of years to the immediate reversioner cannot operate 
 in any other way than by surrender, and consequently a 
 severance of the jointure in reversion will not be thereby 
 effected. 3 Prest. Conv. 153. We have seen that a lease 
 for life by one of two joint-tenants is a severance during its 
 existence, because of the livery (ante, p. 166 ;) and the 
 acceptance by one of two joint-tenants of a conveyance of a 
 similar estate should, for the same reason, operate in a similar 
 way. But a lease for years is not a suspension of the jointure ; 
 neither, therefore, should the acceptance of such a lease be a 
 suspension. — Each joint-tenant is seised of the whole estate, 
 consequently an assignment to one should operate as an 
 entire merger. If it be contended, that a moiety only of the 
 term is merged, it is fair to inquire how the other moiety is 
 situated. Is it vested in the trustee, with remainder to [Sedqu.,sce 
 
 Ralph Buvi/'s 
 
 himself and purchaser in fee? If so, then a merger of a case, Ventr 
 moiety of that moiety would ensue, and so inversely till the ^,^^" ^-^'^''^'^'^ 
 whole term is gone. Taking it, therefore, either way, the 11^- 88—9. 
 term seems to be merged. But a doctrine so refined cannot pp. 472. ^y j_ 
 be confidently relied on ; and it is principally to be resorted ^'^- '*•] 
 to, to assist the presumption of a merger or surrender of an 
 old term which has lain dormant for a considerable time. 
 
 It is also observable, that a joint-tenant cannot grant his 
 chance of survivorship to a stranger so as to bind himself by 
 estoppel. 4 Barn. ^ Aid. 309. If a [grant is made to A. 
 and B. for their lives, and ^.] grants to a stranger, this is a 
 severance of the jointure, and the stranger takes an estate 
 for the life of the grantor in one moiety in common with the 
 other joint-tenant, who is reduced to an estate for his own 
 life in the other moiety. This consequence may be evaded 
 by a declaration of trust, preserving the legal estate in joint- 
 tenancy. So if two joint-tenants for life join in conveying 
 "all their estate and interest" to a stranger, it should follow 
 that this would likewise be a severance of the joint-tenancy, 
 and confer on the grantee an estate in moieties for the 
 respective lives of the grantors. If, instead of a joint con-
 
 170 OF AN ESTATE IN JOINT-TENANCY. 
 
 veyance, each joint-tenant had conveyed by a separate in- 
 strument, it is clear that the stranger could not have held 
 the whole for the life of the survivor, and there is nothing in 
 \\iejoi7it conveyance to work a different construction. In a 
 late case, a copyhold estate was surrendered to A. and his 
 wife for their natural lives and the life of the longer liver of 
 them. They afterwards conveyed to a purchaser in general 
 terras, and a question arose whether that conveyance passed 
 more than an estate for th.Q\r joint lives. The Court of King's 
 Bench held that the purchaser took an estate for the lives of 
 A. and his wife, and the survivor of them. Doe v. Wilson^ 
 4 Barn. ^ Aid. 311. — It will be observed, that this is the case 
 of a tenancy by entireties, and therefore, in many respects, 
 distinguishable from a joint-tenancy. As to the latter, if an 
 estate be given to two persons, not being husband and wife, 
 " for their lives and the life of the survivor," it should at first 
 sight appear that they take a joint estate for their joint lives, 
 with a contingent remainder to the survivor for life by ex- 
 press limitation ; but the law implies just what that limitation 
 dictates, as will be evident from a little consideration, and 
 the rule is, that the expression of that which the law implies 
 is without operation. Thus, in a gift to two persons for their 
 lives without more, they become joint-tenants for lives, and 
 on the death of one the whole remains to the survivor ; to 
 add, therefore, a limitation to the survivor in a gift of a joint- 
 tenancy for lives, is but to express what the law implies : 
 such addition, consequently, is nugatory and void. 
 
 The limitation to the longer liver must be treated as 
 surplusage, and then the gift is to A. and his wife simply, 
 which is a very near approach to a joint-tenancy for lives. 
 But there is a material distinction between a joint-tenancy 
 and a tenancy by entireties. Joint-tenants are seised per my 
 ct per tout; tenants by entireties are seised not per my, but 
 per tout only. The consequence is, that if the husband and 
 wife convey to a stranger, as to the husband, the conveyance 
 operates to pass the entirety, and as to the wife, the con- 
 veyance operates to pass the entirety ; so that, whether the
 
 OF AN ESTATE IN JOINT-TENANCY. 
 
 171 
 
 husband or wife be the survivor, the grantee has the entirety 
 by conveyance from that survivor. With respect to joint- 
 tenants, a difference is instantly perceptible. For the pur- 
 poses of forfeiture and alienation they are seised per my ; 
 for descent and tenancy, per tout. Where two, being joint- 
 tenants for their lives, convey to the same grantee, the 
 conveyance operates as to one joint-tenant, to pass a moiety 
 for the life of that grantor only, and as to the other joint- 
 tenant, it operates to pass his moiety for his own life only. 
 On the death of one the reversion as to a moiety falls in, and 
 the grantee holds the other moiety only for the life of the 
 surviving joint-tenant. Hence it is submitted, that the case 
 of Doe V. Wilson does not govern the position proposed 
 respecting the separate operation of a joint conveyance by 
 two joint-tenants for lives. 
 
 To confine an estate for lives to the joint lives of the 
 donees, the gift must be expressly to them for their joint lives, 
 and then on the death of one the estate will cease ; and it 
 may be proper to remind the reader, that in the case of a 
 gift to two persons and the survivor of them, and the heirs 
 of such survivor, they take as joint-tenants for their joint Supra, -p. 158, 
 lives, with a contingent remainder to the survivor in fee. 
 The words in italics are not implied by law, and are conse- 
 quently not surplusage. 
 
 A covenant or agreement by a joint-tenant to sell creates 
 an equitable severance of the jointure, and will be enforced 
 in equity against the survivor, notwithstanding the dictum in 
 
 2 Vern, 63. See 2 Fes. sen. 634. Broton v. Raindle, 
 
 3 Ves. 257. Mr. Preston, however, considers it questionable 
 whether the contract will be enforced against the survivor, 
 but on what grounds does not appear. 2 Abs. 67. If the 
 contract be an equitable severance (and that it is so all the 
 books agree), it seems strange to say that it shall be enforced 
 against the contracting party himself, and not against the 
 survivoi". A contract is more than a mere lien or charge, it 
 confers an estate executed, on the rule, that what is agreed to 
 be done, is in equity considered as actually performed ; and 
 
 160.
 
 172 OF AN ESTATE IN JOINT-TENANCY. 
 
 a contract to levy a fine by a tenant in tail does not seem to 
 be in pari materia, as such a contract is not deemed of any 
 efficacy against the issue in tail, from the peculiar wording of 
 the statute de donis. 
 
 Judgments and crown debts against a deceased joint- 
 tenant do not affect the estate in the hands of the survivor ; 
 but if a joint-tenant aliens so as to sever the jointure, or if he 
 becomes the survivor or sole owner by release, prior judg- 
 ments against him become available charges on the property. 
 Litt. s. 286. 6 Co. 78, b. So of dower and curtesy. Co. Litt. 
 30, a., 183, a. But the surviving joint- tenant is entitled to 
 emblements, if the jointure continues up to the death of one 
 of them. 2 Vern. 323.
 
 173 
 
 CHAP. XII. 
 
 OF A TENANCY IN COMMON. 
 Tenants in common take also hij purchase, 2 bi. Comm. 
 
 1 , , , , ,. • -1 11 ^191. Litt.h.3, 
 
 but hold by distinct titles, and have separ^ate c. 4, and ttie 
 freeholds, being not seised per mie and per tout, 
 as joint-tenants are :* and the best way to create 
 a tenancy in common is either to limit one 
 moiety of the premises expressly to one, and the 
 other moiety to the other, or to use the words 
 *' to hold as tenants in common and not as 
 joint-tenants ;" as the law may otherwise con- 
 strue it a joint estate. f 
 
 * They have also separate inheritances as distinct from 
 each other as several tenants. Therefore a leasis by two 
 tenants in common operates as a distinct lease as to each 
 of them. Co. Litt. 45, 200. If two tenants in common in 
 fee grant a rent-charge of 20s., the grantee will have two rent 
 charges of 20*. each, one out of each moiety ; and no words 
 expressive of a contrary intention will prevent this effect. 
 5 Co. 7, b. To do that, they should join in a conveyance to 
 A. B. and his heirs, to the use, intent, and purpose that the 
 annuitant might receive one rent charge of 20*. out of the 
 lands thereby released. 
 
 I In a will, the words " equally to be divided" — "equally 
 between or to them" — " equally" alone — " respectively" —
 
 174 OF A TENANCY IN COMMON. 
 
 Touchtt. 292. As the possession of tenants in common is un- 
 divided till partition, they cannot exchange luith 
 
 " rateably" — " share and share alike," and words of a similar 
 distributive import, create a tenancy in common, as well in 
 respect of real as personal estate. 2 Vent. 366. 1 Vern. 32. 
 1 Lev. 232. Styles, 434. Salk. 226. Het. 29. Cowp. 657. 
 
 1 New Rep. 82. 3 Ves. 260. 2 Ca. Chan. 56. 2 Atk. 121. 
 
 2 Meriv. 70. 2 Bing. 151. 2 Ropers Leg. 329, ed. 1828. 
 [There was formerly a difference of opinion whether the 
 words " equally to be divided," or words of similar import 
 would, in deeds operating at common law, create a tenancy 
 in common, as where a feoffment was made to A. and B. and 
 their heirs, equally to be divided between them : it was, 
 however, admitted that, in conveyances operating by the 
 Statutes of Uses, the words would have the effect, as in 
 a feoflPment to A. and his heirs, to the use of B. and C, and 
 their heirs, equally to be divided between them. But the 
 law appears to be now settled that those words will have the 
 same construction in deeds, whether operating by statute, or 
 at common law. Fisher v. Wigg, 1 P. Wms. 14. Rigden v. 
 Vallier, 2 Ves. 252 ; 4 Cru. Dig. 294, Ed. 4 ; 1 Wils. 341 ; 
 Cowp. 660; 1 Watk. Cop. [113] 144, 4 Ed. in nofis, supra 
 in notis, 144.] Real estate purchased with partnership pro- 
 perty is, toall intents, considered in equity as held in common, 
 though the conveyance may have been to the partners in 
 joint-tenancy. 3 Bro. C. C. 200, Eden, Ed. 
 
 [This last proposition requires some qualification. In the 
 absence of any agreement between the partners that the real 
 estate so purchased shall be considered personalty, it seems 
 doubtful whether the mere circumstance that the land was 
 bought for the purposes of the partnership will alone convert 
 it as between the representatives of the partners. 3 Bro. C. C. 
 199. Belt's ed., note. 7 Ves. 453. 9 Lb. 500. 11 lb. 665, 
 2 Dow. 242. 1 Swans. 508, 521. Roper's Husb. ^ Wife, 
 2d ed. 346, and Mr. Jacob's note. The subject was men-
 
 OF A TENANCY IN COMMON. 175 
 
 each other, though they may exchange, either 
 together or separatel}'^, with a stranger. 
 
 But as the seisin of each is distinct, and their ouh. Ten. 74. 
 estates several, one may enfeoff the other ; or, 
 if the other have a greater estate, surrender to 
 him. So one may devise his part to the other : 
 but one cannot release to his companion, as 
 such.* 
 
 Tenants in common may transfer their re- 
 spective shares to strangers by the usual modes 
 
 tioned in the recent case of Bligh v. Brent, 2 Yo. ^- Col. 268 : 
 but the point decided was, that Chelsea Waterworks' shares 
 are personal property. 
 
 Probably the following rule may be deduced from the 
 cases cited: that the real estate purchased with the joint 
 effects of the partnership will, as between the partners, be 
 considered personal estate ; and that the real estate would, 
 with other joint property, be primarily liable to the payment 
 of the joint partnership debts, as between the representatives ; 
 and that, if the heir or widow of a partner be entitled, their 
 right can attach only on the surplus. Where real estate was 
 purchased out of the partnership effects, and by the agreement 
 of the partners was to be the separate property of one of them, 
 to whom it was conveyed, he being considered the debtor to 
 the partnership for the purchase-money, the wife was held 
 entitled to dower out of the whole. Smith v. Smith, 5 Ves. 
 189. See 2 Cru. Dig. 409—10. Ed. 4.] 
 
 * Because such release must operate by way of enlarge- 
 ment, and there is no estate in the companion in the share of 
 the reisasor to be enlarged.
 
 ITt) OF A TENANCY IX COMMON. 
 
 of conveying freehold property ; and they may 
 compel a partition among themselves.* 
 
 * Compulsory partitions are now usually affected by com- 
 missions out of Chancery, which are granted of right and 
 perfected by reciprocal conveyances, by which means alone 
 an amicable partition of all joint estates may be affected ; and 
 an agreement in writing to make a partition will have the 
 same effect in equity. The commission is most common when 
 there are particular estates and reversions in one or both 
 moieties, as then all parties are bound by it, if it be made 
 pursuant to the requisitions of the statutes 31 H. 8, c. 1, and 
 But see Gas- 32 H. 8, c. 32. But the only mode of making an effectual 
 
 keU V. Gaskell .... 
 
 6 Sim. M'). ' partition where one of the parties is an infant is by the act of 
 Parliament. [The recent act of 1 TV. 4, c. 60, does not extend 
 to cases of partition, sect. 18, where the infant is a trustee : 
 the act, cap. 65, of the same session, provides for the case of 
 a person having agreed to make partition and afterwards be- 
 coming lunatic, sect. 27 ; but it does not appear that it autho- 
 rizes guardians on behalf of an infant to make partition.] 
 Under the general inclosure act (41 G. 3, c. 109, s. 16,) the 
 commissioners have power to allot in severalty all the old 
 inclosures and new allotments held in joint-tenancy, copar- 
 cenary, or in common, within the parish, whether the parties 
 are adult, infant, lunatic, or covert. 
 
 [By the 7 4' 8 Vict. c. 76, s. 3, it is enacted, that no partition 
 shall be valid at Imo unless the same shall be made by deed.]
 
 177 
 
 OF A TENANCY BY ENTIRETIES. 
 
 Where an estate is during their coverture conveyed or 
 devised to a man and his wife, they are said to be tenants by 
 entireties, that is, each is said to be seised of the whole estate^ 
 and neither of a part. The consequence is, that the husband's 
 conveyance alone will not have any effect against his wife 
 surviving. The husband, being seised of the whole estate 
 during coverture either in his own right or jure uxoris, can of 
 course depart with that interest ; but, to make a complete 
 conveyance of all the interests held in entirety, the wife must 
 concur ; and, being under coverture, she must [before the 
 operation of the statutes 3 4-4 W. A, c. 1A, and 4^-5 W. 4, 
 c. 92, have joined in a fine ; and since those statutes she must 
 concur with her husband in a deed of disposition acknowledged 
 in conformity with the requirements of those acts.] Joint- 
 tenants are seised per my et per tout. Tenants by entireties 
 are seised per tout only. Co. Litt. 326. 3 Co. 27, b. 8 Co. 72. 
 Under a joint-tenancy one moiety merely survives, the sur- 
 viving joint-tenant being already seised of the other moiety. 
 Under a tenancy by entireties there is in fact no survivorship, 
 as the whole is in each tenant during coverture as much as it 
 is in the survivor after it has ceased. The survivor takes the 
 whole by original limitation, and not by the occurrence of a 
 subsequent event. But although there is in fact no survivor- 
 ship, the effect is, that the surviving husband or wife takes 
 the whole estate, not as a new acquisition, but as an estate 
 freed from participation by another. The consequence, it is 1 Vici. c. 26. 
 presumed, is, that if the husband [even before the 1st of 
 January 1838, made] his will and survived his wife, the will 
 would be good without republication, which we have seen 
 
 N
 
 178 OF A TENANCY BY ENTIRETIES. 
 
 would not be the case if be were a joint-tenant, ante, p. 163. 
 And it should follow, that if tenants by entireties for their lives 
 join in a conveyance to A. B., he will take the whole for the 
 life of the survivor ; a point which has been so decided in Doe 
 V. Wilson, ante, p. 170. This species of tenancy seems to be 
 an exception to the rule that the husband and wife are one 
 person in law ; if they are to be considered as one person, 
 the husband should be able to convey alone, which he is not 
 enabled to do. 
 
 As a consequence of this peculiar tenancy, if a grant be 
 made to three persons, two being husband and wife, the 
 husband and wife take one moiety, and the stranger the other 
 moiety, as between themselves they hold in joint-tenancy : 
 but to enable the stranger to take by survivorship, he must 
 survive both the husband and wife, so that he has one chance 
 against two. The husband and wife hold their moiety as 
 tenants by entireties ; but though the husband has the free- 
 hold during coverture, he and the stranger cannot make a 
 
 3 §• 4 W. A, valid lease to bind the wife surviving ; to effect that, she must 
 
 4 iSf 5 iv. 4* ' concur. A gift to a man and woman who afterwards inter- 
 c. 92, s. 68, &c. marry does not make them tenants by entireties. They are 
 
 joint-tenants both before and after-marriage, and the husband 
 alone may in that case create a severance by aliening his 
 moiety; and it should be observed, that if a husband and wife 
 hold a term for years as tenants by entireties, the husband 
 alone may assign the term so as to bind his wife surviving. 
 Co. Litt. 187, b. 356. 1 Pres. Conv. 55, 155. 2 Abs. 39 ; 
 see Chapter, Husband and Wife, infra in notis.
 
 179 
 
 CHAP. XIII. 
 
 OF A REMAINDER. 
 
 A REMAINDER* is that portioD of interest 
 which, on the creation of a particular estate, is 
 limited over to another. 
 
 [* A remainder may exist in lands held for an estate of 2 Bl. Comm. 
 inheritance, and in lands held for an estate of freehold only, r n^ ^^f/^g^l' 
 In chattels real and personal, a remainder, in the strict legal 143, a.] 
 and technical sense of the word, cannot be limited. It was 
 formerly considered that they were incapable of any limitation 
 over, after a previous limitation of a partial interest ; it is 
 now established they are susceptible of such limitations over. 
 On the limitations of chattels, see Roper on Legacies, vol. 2, 
 445, ed. 1828. The grantor of the fee simple may multiply 
 the particular estates indefinitely ; if by any assurance exe- 
 cuted before or upon the 31st December 1833, the ultimate 
 remnant of the estate is limited to his own right heirs, he is 
 in of his former estate, and retains his old reversion ; but if by 
 assurance executed after that day, such a limitation by virtue 
 of the statute 3 4-4 fF. 4, c. 106, s. 3, confers upon the 
 grantor a new estate by purchase : and he is not to be con- 
 sidered entitled thereto as of his former estate ; but where no 
 such limitation is made, it is conceived that the ultimate use, 
 as a portion of the whole estate, results, as before the act to 
 the grantor, and continues as his reversion in fee.] 
 
 N 2
 
 180 OF A REMAINDER. 
 
 See 3 ^/A. 138. Remainders are either vested^ or coritingent : 
 a vested remainder is that luhich is limited, or 
 is transmitted, to a person who is capable of 
 receiving the possession should the particular 
 estate happeii to determine; as to A. for life, 
 remainder to B. and his heirs : here, as B. is in 
 existence, he is capable (or his heirs if he die) of 
 taking the possession whenever A's death may 
 occur. 
 
 A remainder \% contingent '\ when the particular 
 
 [* An estate is vested when there is an immediate fixed 
 right of present or future enjoyment. An estate is vested in 
 possession when there exists a right of present enjoyment. 
 An estate is vested in interest when there is a present fixed 
 right of future enjoyment. An estate is contingent when a 
 right of enjoyment is to accrue on an event which is dubious 
 and uncertain. Fearne's Rem. 2.] 
 
 [Although it is enacted by the 7^8 Vict. c. 76, s. 8, that 
 after the act comes into operation (1*^ Jan. 1845,) no estate 
 in land shall be created by way of contingent remainder, but 
 shall take effect as, and have the properties of an executory y 
 devise or estate ; yet, with respect to contingent remainders 
 existing under instruments made before that time, the law 
 remains as it was, with one important exception, that no con- 
 tingent remainder shall fail or be destroyed, merely by the 
 destruction of any preceding estate, or its determination by 
 Infra, p. 195. any other means than the natural effluxion of the time of the 
 preceding estate, or some event on which it was in its creation 
 limited to determine : the rules, therefore, which are discussed 
 in the text and the notes on contingent remainders, must be 
 read with reference to such existing remainders.] 
 
 [f Fcarne defines a contingent remainder to be a remainder 
 limited so as to depend on an event or condition which may
 
 OF A REMAINDER. 191 
 
 estate may happen to determine before the per- 
 son to whom the remainder is limited can take 
 the possession ; as to ^. for life, with remainder 
 to tlie right heirs of B. Now, during B.'s Hfe 
 the remainder is contingent, as he cannot have 
 an heir till his death ; and, therefore, should A. 
 die before B. there could be no one to take the 
 possession. 
 
 In the creation of remainders the following: L7«r8F.c<. 
 
 c. 76.«. 8.] 
 
 rules were to be observed : — 
 
 1st, There must be a present, or particular, 
 estate* created, which, if the remainder be a 
 
 never happen or be performed, or which may not happen or 
 be performed till after the determination of the preceding 
 estate. 
 
 The student should be apprised that it is not the uncer- 
 tainty of ever taking effect in possession that makes a 
 remainder contingent ; for to that, every remainder for life or 
 in tail is and must be liable ; as the remainderman may die, 
 or die without issue, before the death of the tenant for life. 
 The present capacity of taking effect in possession, if the 
 possession were to become imcant, and not the certainty that 
 the possession wz7/ become vacant before the estate limited in 
 remainder determines, distinguishes a vested remainder from 
 one that is contingent. Fearne^s C. R. 216.] 
 
 * Such estate, however, need not be in the actual seisin 
 or possession of the particular tenant : it is sufficient that it 
 confer a right to the possession, for while a right of entry 
 remains, there can be no doubt that the same estate con- 
 tinues, since the right of entry subsists only in consequence 
 of the existence of the estate ; but when the right of entry is 
 gone, and nothing but a right of action remains, it then
 
 182 OF A REMAINDEII. 
 
 vested one, must be, at least, for years ; or, if 
 the remainder be contingent, must be an estate 
 of freehold; as a freehold cannot commence in 
 futuro by the common law.* 
 
 becomes a question in law whether the same estate continues 
 or not, for the action is nothing more than the means of 
 deciding this question. Fearne, 286, 7th ed. Hence an 
 interesse termini should be a sufficient support to a vested 
 remainder, as that is something more than a right of entry — 
 being assignable. [But an interesse termini intervening 
 between a prior term and the reversion will not prevent 
 the merger of the term in the reversion when they unite in 
 the same person in the same right. 4 Mod. 1. 5 Barn. S)- 
 Cress. 111. infra, ch. Lease, note (a). Preston's 3ferger, 
 120, ed. 3. 6 Cru. Dig. 470, 478, ed. 4.] An estate at will 
 cannot support a freehold remainder, because entry to deliver 
 seisin to the remainderman would be a determination of the 
 will. D>/. 18, b. 5 Bac. Abr. 822. 
 
 * The student should distinctly mark the difference be- 
 tween a remainder commencing under a conveyance at 
 common law, and a remainder commencing under a con- 
 veyance to uses. If a feoffment be made direct to A. for 
 years, with remainder to B. in fee, livery is made to A. 
 which instantly enures to B. The freehold passes out of the 
 feoffor, and vests immediately in B. — This, therefore, is not 
 an instance of the commencement of a freehold in futuro. 
 But if the feoffment had been to A. for years, with remainder 
 to the right heir of B. (Z>. being living,) there is no one in 
 whom the freehold can vest. Livery may be made to A., 
 but as it cannot pass on to the remainderman, (he being 
 unascertained,) nor be retained by A. himself (such a re- 
 tention of the freehold being incompatible with his estate for 
 years,) the livery operates nothing, and the freehold is not 
 passed out of the feoffor, so that the feoffment is void as a
 
 OF A REM AIM) Kit. 
 
 conveyance of the freehold ; but being by deed under sea), 
 it will enure as a good lease for the term. If, however, the 
 feoffment had been to A. and his heirs, to the use of B. for 
 years, with remainder to the use of the right lieir of C, liere 
 the whole seisin in fee passes out of the feoffor into .4. the 
 feoffee, and the statute executes the use in B. for the term 
 of years ; and then a resulting use arises to the feoffor and 
 his heirs, till the contingent estate vests in the right heir of C. 
 Such at least is the deduction from principle: but the cases 
 do not go to the full extent of this position. At first sight, 
 indeed, they appear contradictory (1 Sand. Uses, 142, 143, 
 4th ed. :) but upon consideration it is submitted that they 
 will be found not to oppose, if they do not support the doctrine 
 here advanced. In Adams v. Savage, 2 Lord Raym. 854, 
 the limitation of the term was to the [settlor himself for 
 ninety-nine years, if he should so long live,] which negatived 
 a resulting use to him of the fee ; and in the case of a devise 
 to B. for years, with remainder to the right heir of B., thi.s 
 is a clear executory devise, and the fee in the interim, till 
 the right heir is ascertained, descends to the testator's heir 
 at law. Harris v. Barnes, 4 Burr. 2157. Gore v. Gore, 
 2 Pr. Wms. 28,) which is much the same case as the above 
 limitation in a deed. In the event of a determination of the 
 term pending the contingency, it is conceived that the con- 
 tingent remainder would still be supported under the doctrine 
 of resulting use; for if the term had not been limited, it is 
 clear that the feoffor would have retained the fee till the 
 contingency happened, and the introduction of a terra cannot 
 make any difference. 
 
 It is said in some books, that if the contingent remainder 
 be for years, a particular estate for years will be sufficient to 
 support it. — A little reflection will show that this observation 
 is inapplicable to chattel interests. If a lease be made to A. 
 for forty years if he shall so long live, and after his death to 
 B. for one thousand years, B. takes an iiiteresse termini, and 
 not a remainder. B.'s term will take effect, although A.'s 
 term should expire in liis lifcliuic. They are two substantive 
 
 183
 
 184 OF A REMAINDER. 
 
 2dly, The particular estate and the remainders 
 must be created hy the same deed.* 
 
 3dly, The remainder must vest in the grantee 
 
 independent terms, which arise and take effect according to 
 the periods of their limitation, without reference to each 
 other. The second term does not require any particular 
 estate to support it. The reason requiring a particular estate 
 of freehold to support a contingent remainder mfee does not 
 apply to a contingent remainder of a term, which may be 
 made to commence in futuro. Fearne's C. R. 285, and see 
 Corbet v. Stone, T. Ttaym. 140. 
 
 * A will and codicil, as they take effect at the same time, 
 and are perfected by one and the same act, may be fairly 
 denominated one and the same instrument. In Hayes v. 
 Foorde, 2 W. Black. 698, an estate was devised to the heirs 
 male of .7. *S'. ; and, in a schedule annexed to the will, the 
 testator referred to the estate as being given to J. S. for life. 
 The Court of King's Bench held that J. S. took an estate for 
 life by implication, with which the limitation to his heirs 
 coalesced, and gave him an estate in tail male, barrable by 
 recovery, although the testator had attempted to make the 
 estate tail inalienable. If an estate be conveyed to A. B. and 
 his heirs, to the use of C. D. for life, with remainder to such 
 uses as E. F. shall appoint, and E. F, appoints G. H. in fee, 
 G. H. has a remainder dependent on the particular estate of 
 C. D. Fearne, C. R. 74, 7th ed. But if an estate be devised 
 to C. D. in fee, after next Michaelmas, the fee descends 
 in the interim to the testator's heir at law, and C. D. [during 
 that period has no vested estate, the whole fee vesting in the 
 testator's heir until Michaelmas ;] though some have thought 
 that the heir takes an estate for a term with remahider to 
 C. D. in fee. This construction, however, cannot be sup- 
 ported, as is ably shown by 3Ir. Butler, in his note to Fearne's 
 C. R.p. 1 .
 
 OF A REiMAINDER. 185 
 
 (luring the particular estate, or the very instant 
 it determines.* 
 
 4thly, And, if the remainder be contingent, it 2 h. Biackst. 
 
 '' , , 358. Proctor 
 
 must be limited to some one that may, by com- v. Bishop of 
 
 . . Bath §• WelU. 
 
 mon possibility, or potentia pj-opinqua, be in esse 
 at or before the determination of the particular 
 estate. t 
 
 * If an interval intervene between the determination of that 
 estate and the vesting of the remainder, the remainder will be 
 void, — ab initio, if the interval be certain at the time the re- 
 mainder is created ; but sub 7nodo only, if the interval occur at 
 the time of the determination of the preceding interest. Thus, 
 if an estate be granted to A. for life, with remainder after his 
 death and one day to B. in fee, this remainder is void in its 
 inception ; but if the grant be to A. for life, with remainder 
 to C. after the deaths of A. and B., this remainder is good in 
 its limitation, but may become void in event. If at A.'s 
 death B. be living, then, as the remainder cannot vest in C. 
 till B.'s death, there will be an indefinite interval of time, 
 during which the remainder to C. will have no particular 
 estate to support it; for want of that support the remainder 
 will fall to the ground, by the first rule above-mentioned. 
 Et vide Mogg v. Mogg, 1 Meriv. 654. 
 
 [It is conceived that the 8th section of the 7 4" 8 Vict. 
 '€. 76, does not make any alteration in the four rules in the 
 text, in reference to existing contingent remainders ; the 
 last clause of that section merely prevents their tortious des- 
 truction, by annihilating the preceding estate.] 
 
 •j" In the case stated in the margin, A. devised an ad- 
 vowson to the first or other son of B. that should be bred a 
 clergyman and be admitted to holy orders, in fee : but in case 
 B. should have no such son, then to C. in fee. The Court was 
 clearly of opinion that the devise to the son of B. was void,
 
 186 OF A REMAINDER. 
 
 By tlie feudal law, the freehold could not 
 be vacant, or, as it was termed, in abeyance. 
 
 from the uncertainty as to the time when such son, if he had 
 any, might take orders ; and that the devise over to C. was 
 also void. This it will be observed is the case of an executory 
 devise ; but a contingent remainder must, it is conceived, be 
 in pari materid. A contingent remainder, or shifting use, 
 limited in the above words, would doubtless be held void, as 
 tending to a perpetuity. No person can be admitted to holy 
 orders till the age of twenty-three, so that in reality it is 
 a limitation for life in being (namely B.'s), and at least 
 twenty-three years afterwards, which is contrary to the 
 general rule mentioned in the next Chapter. 
 
 If a condition be annexed to a particular estate, making it 
 void in a given event, and an estate be limited to take effect 
 on the destruction of the particular estate, that estate is 
 not a remainder. It is a rule at common law, that a stanger 
 shall not take advantage of a condition, but only the grantor 
 or his heirs. This rule would be contravened, if the above 
 mode of limiting a remainder were allowed : for the right of 
 entry on a breach of the condition would in that case be in 
 the remainderman, instead of the grantor or his heirs : 
 besides, such a mode of limitation is incompatible with the 
 nature of a remainder. A remainder, as the name imports, 
 is an estate to fall into possession on the natural determinutAon, 
 not on the destruction, of the preceding estate. [An estate 
 which is limited to commence on the destruction of the 
 particular estate which immediately precedes it, is not a 
 remainder ; a remainder must either be vested or con- 
 tingent, it cannot be a vested] remainder if it be to fall into 
 possession on the destruction of the particular estate, the 
 continuance of which is dependent on an event : nor can 
 it be a routingcnt remainder, as it is certain of falling into 
 l)eing cither upon the destruction or the determination of the 
 preceding estate. Tiic conckision at common law is, that the
 
 OF A REMAINDER. 
 
 There must have been a tenant to fulfil the feudal 
 duties or returns, and against whom the rights of 
 others might be maintained. 
 
 condition is good, but the remainder void. The remainder, 
 however, is supported by another name in conveyances to uses 
 and last wills, as will be more fully explained in Chapter XV. 
 on Conditional Limitations. 
 
 But if the condition for defeating the prior estate be to 
 operate on one event, and the remainder be to arise on another 
 and totally different event, the remainder will not be void ; 
 but the particular estate will be discharged of the condition, 
 and the remainder held good : in other words, the condition 
 will be void, and the particular estate become absolute for the 
 time it is granted. The condition being on one event, and 
 the remainder on another, the grantor has, by the limitation 
 of the remainder, put it out of his power to take advantage 
 of a breach of the condition by entry or claim. To allow him 
 to enter under the condition, would enable him to defeat a 
 good remainder and derogate from his own grant; and it is 
 unreasonable that the grantor should defeat that estate in 
 remainder which he had absolutely given away. Indeed, it 
 seems directly within the reason of the common law case put 
 by Littleton before the stat. of //. 8, that if a man lease for 
 life, upon condition of re-entry for non-payment of rent, and 
 the lessor afterwards grants away his reversion, the lessor or 
 his heirs cannot enter, because he hath aliened the reversion ; 
 LMt. s. 347, Perk. s. 831 : so in the above case the lessor, by 
 limiting the remainder over absolutely, has departed with the 
 reversion as much as if he had afterwards aliened it by another 
 conveyance. In this case, therefore, the condition is void 
 and the remainder good. 
 
 By way of exemplification : — If a feoffment is made to A. 
 a widow, for life, provided that if she marry again, then her 
 estate to cease, and immediately after her death or second 
 marriage the estate to enure to /?. in fee: [this limitation to 
 
 187
 
 188 OF A REMAINDER. 
 
 If the tenancy once became vacant, though 
 but for an instant, the lord was warranted in 
 entering on the lands, as the consideration on 
 the part of the tenant had ceased ; and, con- 
 sequently, as no returns were made, there being 
 no one to render the services of the feud, the 
 lord was entitled to resume it. The tenant can 
 only subject his own estate to his own limitations ; 
 and, therefore, the moment that estate ended, by 
 the cession of the tenancy, all limitations of that 
 estate were also at an end. 
 
 The lord, on the escheat, is in, paramount the 
 tenant ; he is in, of an estate from which the 
 tenant's was originally derived. 
 
 B. according to the event, will take effect either as a con- 
 ditional limitation or a remainder ; if B. marries, it will take 
 effect as a conditional limitation, but if she does not, as a re- 
 mainder : had the limitation to 5.] been introduced without 
 the words in italics, then it would have been a good re- 
 mainder, and the condition would be viewed as surplusage, 
 Fearne, 270. So, if the limitation had been to the widow 
 durante viduitate, the remainder would have been good : and 
 as then her death or second marriage would have been the 
 natural period for the determination of her estate. [A con- 
 tingency sometimes is said to have a double aspect, as where 
 there are two contingent remainders in an alternative, which 
 provides for the happening and non-happening of a contin- 
 gent event: thus a devise to A. for life, and if she shall have 
 issue male living at her decease, to such issue male as tenants 
 in common in fee ; but if she shall die without having issue 
 male living at her decease then to B. in fee. See also Goodtitle 
 V. Billi?>ffton, Dour/. 725. Fearne's C. R. ch. 2, s. 6.]
 
 OF A RP:MAINnER. 189 
 
 Hence, then, the necessity of an immediate 
 estate of freehold, or of a freehold in possession, 
 being vested in some person actually in existence 
 who may fulfil the duties of the feud, and who 
 may answer to the prcecipe of strangers ; and 
 hence the necessity also of the remainder taking 
 effect during the existence of such particular 
 estate or eo instanti that it determine ; as a limi- 
 tation of an estate cannot take place where that 
 estate itself is no more. 
 
 A vested remainder may be conveyed to an- Co. utt. 270, 
 Other by grant, by lease and release, by bargam h.n.{\) Sand. 
 
 ,1 111 1 -1 on Uses, 332. 
 
 and sale enrolled, or the remainderman may 455. 
 
 covenant to stand seised ; [and before fines were 
 
 abolished by the stat. 3 Sf 4 W. 4, c. 74, as to 
 
 lands in England, and the 4^5 W. 4, c. 1^)2, as 
 
 to lands in Ireland, it might be conveyed by fine.] 
 
 But it cannot be granted to commence in fuUiro ; See Phwd. 
 
 fail . % 4. * ^^■'^'^- '97. b. 
 
 tor the huv does not permit a person to reserve to 8 Co. 74, b. 
 himself a less estate than he had before.* And videpost,h.2, 
 
 c. 1. Ofa 
 
 Feoffment. 
 
 * Every particular estate is considered less than the re- 
 mainder, and here the remainderman does in fact reserve to 
 himself a particular estate, as the legal interest in the land 
 remains in him until the future period arrives. If the grant 
 be to uses, the whole fee results to the grantor ; and conse- 
 quently, in a conveyance of that character, a remainder may 
 be granted in futuro by way of shifting use, as the grantor 
 does not obtain a less, but an equal estate, by the grant. 
 Thus, if a remainderman convey to A. and his heirs, to the 
 use of B. in fee after next Christmas, till next Christmas the
 
 190 OF A REMAINDER. 
 
 as the fVeeliold is in the particular tenant, a re- 
 mainder cannot be the subject of a feoffment ; 
 for a feoffment ojDerates on the possession which 
 
 Vide post, h.i. the remainderman has not to convey.* For the 
 same reason a recovery could not be suffered of a 
 remainder, as the pi^cecipe could only be brought 
 
 14 Geo. 2, c. 20. against the tenant of the freehold in possession. 
 But, if a prcBcipe were brought against the tenant 
 in possession, and the remainderman were 
 vouched and entered into the warranty, he would 
 then be bound. f 
 
 whole use results to the remainderman in fee ; he does not 
 take a particular estate till Christmas, with remainder to C, 
 but the whole use results to him for an estate in fee, and C. 
 takes nothing till Christmas arrives. The remainderman 
 does not, therefore, reserve to himself a less, but an equivalent 
 estate to the one he had before. If, however, the grant had 
 been directly to C. in fee after next Christmas, then, as no 
 estate would pass to him immediately, nor to any other person 
 in the interval, the remainder is not taken out of the grantor ; 
 and, consequently, the conveyance operates nothing, and is 
 therefore void, which would be its effect whether the subject 
 of it were in possession or remainder; and therefore it is 
 true, that at common law a remainder cannot be granted to 
 commence in futuro, not so much on the reason assigned in 
 the text, as upon the invalidity of the grant. 
 
 * Hence remainders are said to lie in grant, which was the 
 mode of conveyance, at common law, of those estates which 
 did not lie in livery, or of which livery could not be given. — 
 Note by Mr. Watkins. 
 
 I And the remainderman might levy a fine of his estate 
 in remainder ; which, however, did not affect the possession. 
 Roe V. FMioU, 1 Barn. Sf Aid. 85.
 
 OF A H]:ArAlM)i:H. 191 
 
 A contino-ent remainder rmight previously to Feume, c n. 
 the statute 3^-4 U\ 4, c. 74, as to lands in [noev. Tum. 
 
 Iiinson, "2 Maule 
 
 England, and to the statute 4 ^ 5 Ir . 4, c. 92, §• Sei. i65. 
 
 Z>oe V. Martin, 
 
 as to lands in Ireland \ be barred 6v estoppel bv s^ar. ^-Crm. 
 
 ,. . r J 497. 10/6. 
 
 matter of record, as a nne*' or recovery ;'f and isi.] 
 
 * A vested remainder could not be barred by the direct 
 operation of a fine, but by five years' nonclaim on a fine it 
 might. The learned author, however, is not here alluding 
 to fines levied by other persons, but to fines levied by the 
 owner of the remainder. A fine might be levied of a vested 
 remainder, and its effect was, to pass or convey the estate, 
 [and, if an estate tail, to bar the issue in tail] ; but a fine 
 of a contingent remainder operated to destroy the remainder 
 and accelerate the reversion. Weale v. Lower, Poll. 54. 
 The Courts, however, seem disposed to question this effect 
 of a fine at the present day. Davies v. Bush, 1 M'Cl. Sf 
 Vn. 58. 
 
 [It is submitted that the case o{ Davies v. Bush cited in 
 the preceding note by Mr. Coventry, does not countenance 
 the general proposition, that a fine would not bar a contingent 
 remainder and accelerate the reversion. That case in con- 
 formity with Jersey v. Deane, 5 Barn. 8f Aid. 569, and other 
 authorities, establishes the following conclusion, that where 
 the parties levying a fine, by a contemporaneous deed, de- 
 clared the uses for a specific purpose, there, although the 
 legal effect of the fine unexplained and uncontrolled, would 
 be to destroy and extinguish contingent estates, powers, and 
 other interests in the parties levying it, yet that its nature 
 was not so inflexible but that it would bend to .and be con- 
 trolled by the intention ; and consequently (the fine and deed 
 of declaration being taken together as one assurance) that the 
 operation of the fine should be so restrained and regulated as 
 to effectuate the real object of the parties to the transaction.] 
 
 f But although a recovery barred the person suffering it 
 by estoppel, yet the issue in tail (supposing the contingent
 
 192 OF A REMAINDER. 
 
 if the contingent rennainder is such as to be 
 descendible to the lieirs of" the person to whom 
 limited, if he die before the contingency happen, 
 [it might even before the 1 Vict. c. '20, have been 
 devised, and before the 7 ^^ 8 Vict. c. 7G, s. 5, 
 have been] passed in equity, but not otherwise ;*" 
 [except as to lands in Ireland ; for by the 22nd 
 section of the statute 4^5 W. 4, c. 92, power is 
 given to persons (not being expectant heirs of 
 living persons) entitled to estates not vested, to 
 dispose of them by deed or will, in the same 
 manner as if they were vested.] 
 
 remainder to be in tail) were not barred by a recovery 
 suffered by their ancestor, while the remainder was in an 
 executory state. It has indeed been questioned, whether 
 such an act by the contingent remainderman did not destroy 
 the remainder. This is conceded, if the remainder were in 
 fee, where the heirs claimed in the per ; but being in tail, it 
 is difficult to say, that the issue who claim performam doni, 
 paramount the person suffering the recovery, would be bound 
 by it in the event of that person's death pending the con- 
 tingency. 
 
 * The meaning of this passage is, that a contract by an adult 
 for sale of his contingent remainder in fee for valuable con- 
 sideration, will be decreed to be specifically performed in 
 equity, both as against himself and his heir, either in his life- 
 time or after his death, whether the contingency has hap- 
 pened or not, and whether it be in remainder or possession. 
 Hence, a written agreement for purchase, and proof of pay- 
 ment of the consideration-money, seems to be all that was 
 requisite for the conveyance of a contingent remainder while 
 it is executory.
 
 OF A REMAINDER. 193 
 
 [But now by the 5th section of the 7^8 Vict. 
 c. 76, wliich extends to all parts of the United 
 Kindom except Scotland (that being expressly 
 excepted), any person may convey by deed any 
 contingent or executory interest, right of entry, 
 or other future estate or interest in freehold, 
 copyhold, leasehold or personal property, so that 
 the person to whom the conveyance is made shall 
 stand in the place of tlie party conveying ; but 
 an expectancy of the heir or next of kin of a 
 living person, or an estate tail are not within the 
 above provisions ; neither can a chose in action 
 be thereby conveyed at law.^ 
 
 [Previously to the above statute,] contingent 
 remainders might have been destroyed, and 
 prevented from taking effect, by destroying the 
 particular estate by which they were supported ;* 
 and, therefore, it was frequently necessary to 
 
 * This destruction might have been effected by the merger, Sup. 161, 
 surrender, or forfeiture of the particular estate. [Before the 
 7^8 Vict. c. 76,] if the particular tenant attempted to con- 
 vey a larger estate than he could warrant, by an instrument 
 which operated to divest the estates of the remaindermen, as 
 a feoffment, [or before the late statutes 3 4" 4 fF. 4, c. 74, as 
 to lands in England, and the 4^5 TV. 4, c. 92, as to lands 
 in Ireland, a fine, or recovery], he, by that act, disclaimed the 
 tenancy of his estate for life, and usurped the fee ; the effect 
 was an immediate and complete forfeiture of his estate for life 
 to the next vested remainderman. But a lease and release, 
 being r.n innocent assurance, passed no more than the releasor 
 could convey. Such an assurance therefore by a tenant for 
 
 o
 
 194 . ' OF A REMATNDEK. 
 
 Vide ante, c. 8. limit the legal estate to trustees for the purpose 
 
 \ Haskerv. Sut- „ • ,i , 
 
 ton, I Bing. ot preserviug them.* 
 
 500. Doe V. 
 
 Howell, \0 Bar. - -^-- 
 
 §- Cress. 191.] 
 
 life of an estate in fee conveyed no more than his particular 
 estate for life ; and although that estate was by this means 
 converted into an estate potir autre vie, yet the particular 
 estate not being forfeited or destroyed by the release, but 
 only passed, the privity between it and the remainder con- 
 tinued, and consequently the contingent remainder was well 
 supported by the estate of the releasee. [But now by the 
 4^ '7th section of the 7^8 Vict. c. 76, no assurance can create 
 an estate by wrong ; the feoffment therefore is now deprived 
 of the particular operation above mentioned]. 
 
 * In limitations in strict settlement, the estate of the 
 trustees to preserve contingent remainders should have been 
 carefully confined to the life of the particular tenant. The 
 limitation should run thus : — To A., for life, with remainder 
 to B. and his heirs during the life of A., with remainder to 
 his first and other sons, &c. If the words in italics be omitted, 
 the trustees take the fee ; and as a fee cannot be limited on a 
 fee, the succeeding limitations are invalid at law, but in 
 equity they are supported as trusts. If, however, a term to 
 raise portions or otherwise were afterwards given to the same 
 trustees by the same settlement, or a power to lease during 
 minority were reserved to them, or any other limitation be 
 added clearly incompatible with the existence of the fee in 
 the trustees, they were held to take an estate for the life of 
 the tenant for life only, although the words might be large 
 enough to give them the fee. Curtis v. Price, 12 Ves. 89. 
 [See also upon the subject of this note Venables v. Morris, 
 7 T. R. 342. Doe v. Hicks, ib. 433. Colmore v. Tyndall, 
 2 Yo. 3)' Jer. 605. Sometimes it was proper to vest the whole 
 legal fee in the trustees to support contingent interests of 
 children, who at the determination of the preceding estate 
 either might not be in esse, or might not answer the required 
 character ; as where an estate was devised to and to the use
 
 OF A REMAINDER. 195 
 
 [But now by the 8th section of the above 
 -:-statute contingent remainders cannot be created ; 
 — -^nd with respect to those existing when the act 
 — -came into operation (1st January, 1845), they 
 cannot be barred or destroyed merely by the 
 destruction or merger of any preceding estate, or 
 its determination by any other means than the 
 natural effluxion of the time of such preceding- 
 estate, or some event on which it was, in its 
 creation, limited to determine.] 
 
 If it be intended in a settlement to prevent i Feame, 49. 
 
 ^ 2 W. Bl. Rep. 
 
 the parent, from whom the lands move, from de- 687. wnuk- 
 
 n •iT'11'1* 1 Palmer. 
 
 feating a remamder limited to his heirs general or 
 special, — care must be taken that no partictilar 
 estate be limited, or be capable of resulting, to 
 
 of trustees upon trust for A. for life, and after her death, for 
 such of her children as should attain twenty-one as tenants 
 in common in fee : there if A. left her children minors at her 
 death, their estates would be supported by the legal fee in the 
 trustees. Hopkins v. Hopkins, Ca. tern. Tal. 44 ; Fearne's 
 C. R. ch. 3, s. 8. Duffield v. D., 1 Dow Sf Cl. 268, 396, 
 403. Had the limitation been to the trustees and their heirs 
 to the use oi A. for life, with remainder to the use of such of 
 her children as should attain twenty-one, &c., upon her 
 death the contingent remainders to her infant children would 
 be defeated. Festing v. Allen, Mee. ^ Wei 10, Nov. 1843. 
 12 Mee. Sf Wei. 279. 
 
 But in instruments made after the \st Jan. 1845, such 
 a limitation would be construed as an executory devise, and 
 not a contingent remainder, 7 4" 8 Vict. c. 76, s. 8.] 
 
 o 2
 
 196 OF A REMAINDER. 
 
 such parent ; as the estates would, in such case, 
 unite, and the parent iiave an estate in fee or in 
 tail in himself.* 
 
 * When a feoffment is made to A. and his heirs, to the 
 use of the heirs of the body of the grantor, the use resulting 
 to the grantor for his life by way of particular estate, the 
 grantor, by the union of the particular estate and the 
 remainder, becomes tenant in tail in possession. 1 Roll. 
 Rep. 240. Freem. Ch. Ca. 235, by Hovenden. This deci- 
 sion is formed on the true construction of the Statute of 
 Uses, viz., that so much of the use as the grantor has not 
 disposed of, and no more, results to him. 1 Sand. Uses, 138. 
 
 [J/r. Fearne enumerates four classes of contingent remain- 
 ders : — First, Where the remainder depends entirely on a 
 contingent determination of the preceding estate itself: as if 
 A. makes a feoffment to the use of B. till C. returns from 
 Rome, and after such return of C. then to remain over in fee. 
 
 Secondly, Where some uncertain event, unconnected with, 
 and collateral to the determination of the preceding estate, 
 is, by the nature of the limitation, to precede the remainder: 
 As if a lease be made to A. for life, remainder to B. for life ; 
 and if B. die before A., remainder to C. for life : here the 
 event of Bh dying before A. does not in the least affect the 
 determination of the particular estate, nevertheless it must 
 precede and give effect to C^s remainder : such event is 
 dubious, it may or may not happen, and is therefore con- 
 tingent. 
 
 Thirdly, Where a remainder is limited to take effect upon 
 an event, which, though it certainly must happen some time 
 or other, yet may not happen till after the determination of 
 the particular estate : as if a lease be made to /. S. for life, 
 and after the death of /. T>. to C, 
 
 Fourthly, Where a remainder is limited to a person not 
 ascertained or not in being at the time when such limitation
 
 OF A REMAINDER. 197 
 
 is made ; as if a lease be made to one for life, remainder to the 
 right heirs of /. S. he being alive. 
 
 It may be useful to the student to consider the operation 
 of the 7 4" 8 Vict. c. 76, s. 8, upon the four preceding classes 
 of contingent remainders, should they occur in instruments 
 made on or after the \st o^ January, 1845, from which period 
 they will be converted, if in a will, into executory devises, 
 and, if in a deed, into executory limitations in the nature and 
 having the properties of executory devises. It will be found 
 that the first class only will have the same effect since, as 
 before the statute, but that the three remaining classes will 
 undergo a material change. In the latter the executory 
 devise or limitation must not only await the determination of 
 the preceding estate, but also the happening of the contin- 
 gency, whicb may not take place until after the expiration of 
 the previous estate. Thus for example in the second class, 
 in a devise or limitation to A. for life, and if B. returns from 
 Rome to C. in fee ; B. may not return from Rome in A.'s 
 lifetime ; but as that event must precede the vesting of the 
 ulterior limitation to C, it may after A.^s death be kept in 
 suspense, for the period of B.^s life, to await his return from 
 Rome. In the example by which Fearne illustrates his 
 second class, it happens that the estate of C. will take effect, 
 as it would have done before the statute, but that arises from 
 the accidental circumstance of making the collateral event, 
 the determination of one or other of the preceding estates 
 which are to introduce the ulterior limitation ; the editor 
 therefore prefers, the example he has given of B.^s coming 
 from Rome, as a less ambiguous illustration. In the third 
 class, also, the statute has eflPected a change ; for at the death 
 of /. -S"., /. D. may be living, and the ulterior limitation must, 
 in that event, await the period of /. DJs death. So also in 
 the fourth class, the tenant for life may die while /. S. is 
 living, and, therefore, the limitation to the heir of/. S. must 
 remain in contingency during his life. It is conceived that 
 iu all the three latter classes the fee results, during the
 
 198 OF A HEMAINDEU. 
 
 interval between the determination of the preceding estate 
 and the suspense of the contingency. It will occur to the 
 learned reader that limitations falling under some of the 
 above classes, when in a will, may require a very different 
 construction from that which they would receive in a 
 deed.]
 
 !9i) 
 
 CROSS REMAINDERS. 
 
 Gifts, with cross remainders, are grounded on a tenancy 
 in common. Under a gift to A. B. and C. as tenants in 
 common in tail and in default of the issue of either of them, 
 then to the other or others of them as tenants in common in 
 tail, and in default of issue of all of them, then to a stranger 
 in fee : A. B. and C. are tenants in common of one-third each 
 in possession, with remainder as to A., to B. and C. as tenants 
 in common in tail, with remainder as to B., to C. in tail, and 
 with remainder as to C, to B. in tail, and so reciprocally as 
 to the other two-thirds. In deeds, cross remainders cannot 
 arise without express words. But in wills, marriage articles, 
 and limitations of executory trusts, they may be implied. 
 The reason why cross remainders cannot be implied in deeds 
 is, that although in a deed the remainder may be implied, yet 
 tvords of inheritance cannot be implied so as to determine 
 what quantity of estate is conferred by the remainder. Nevell 
 V. Nevell, 1 Rol. Abr. 837. R. pi. 2. Mr. Serjeant Williams, 
 in a note to Cook v. Gerrard, 1 Saund. 185, (in which many 
 of the cases relating to cross remainders are collected and 
 arranged,) observes, that the reason of the rule may be found 
 in the above extract from Rol. Abr., viz. that by way of use 
 an estate tail cannot be raised without the word " heirs." In 
 fact, the words of inheritance are the only part of the intention 
 of the parties which cannot be implied ; therefore, if no 
 particular words were necessary to limit the inheritance, cross 
 remainders could be raised by implication in a deed as well 
 as in a will. See also Colew. Levingston, 1 Vent. 224. Doe 
 V. Worsely, 1 East, 430. Doe v. Wainewright, 5 T. R. 428. 
 [Met/7-ickv. Whishaw, 2 B.S)Ald. 810. Levin v. Weathernll, 
 1 Brod. Sf Bing. 401. Edwards v. AUiston, 4 Russ. 78.]
 
 200 CROSS REMAINDERS. 
 
 fVills are construed upon the intention. If lands are devised 
 to two persons, provided that if they die without issue, then 
 over ; if one of them dies without issue, and the other dies 
 leaving issue, a question arises whether the moiety of the 
 former is to go over to the remainderman when the words of 
 gift are, that the estate shall not go over to him till the death 
 of both the devisees without issue. To prevent an abeyance 
 the law implies cross remainders between the devisees ; on 
 which construction, the one who has issue will take the whole 
 on the death of the other without issue, and this to meet the 
 manifest intention of testators. But the estate implied must 
 always be an estate tail, and therefore if the words will not 
 admit of the implication of that estate, cross remainders 
 cannot arise. 
 
 The old rule was, that cross remainders could not be im- 
 plied between more than two devisees ; but it is now fully 
 settled that cross remainders may be implied between any 
 number of devisees, if the circumstances will warrant the 
 implication. The rule is thus laid down hy Lord Mansfield : 
 Between two, the presumption is m favour oi cross remainders, 
 between more than two, the presumption is against them ; 
 but in either case the intention of the testator may control 
 the presumption." Doe v. Burville, Lofft. 101. 2 EaM, 47. 
 Wright v. Holford, Cowp. 31. Phipardv. Mansfield, Ibid. 
 797. Atherton v. Pye, 4 T. J?. 710. WaUon v. Foxon, 
 2 East, 36. Roe v. Clayton, 6 East, 634. Doe v. fVebb, 
 1 Taunt. 234. Green v. Stephens, 12 Ves. 419, and S. C. 
 17 Ves. 64. Mogg v. Mogg, 1 Meriv.Q55. Home v. Barton^ 
 19 Ves. 398. 
 
 A tenant in tail, with cross remainders over, might by 
 common recovery, [and now that recoveries are abolished, he 
 may by a deed of disposition in conformity with the statute 
 of 3 ^ 4 W. 4, c. 74, as to lands in England, and the 4^-5 
 W. 4, c. 92, as to lands in IreXand,'\ convey his own purparty 
 of the estate in fee. But he could not alone, by recovery, 
 convey his remainders in the shares of his compauious ; for 
 having no estate of freehold in possession in those shares, he
 
 CROSS REMAINDERS. 201 
 
 could not make a tenant to the prcecipe. However, by levying 
 
 a fine with proclamations he might convey all his estates in 
 
 remainder, for his issue could never claim in opposition to 
 
 his fine ; and if he covenanted to suffer a recovery of those 
 
 remainders when they came into his possession, a purchaser 
 
 from him would have as effectual an assurance as the nature 
 
 of the case would admit. 
 
 [A tenant in tail in remainder may, by deed of disposition 
 
 in conformity with the above acts, without the consent of the Sec. 34. E. 
 
 32 I 
 
 protector (if there be one), convey a base fee to continue so 
 
 long as there shall be issue inheritable under the entail, and 
 so as to bar all persons claiming under the entail : and, with 
 the consent of such protector, he may not only bar the issue 
 in tail, but all estates and interests expectant or depending 
 upon the estate tail, of course, leaving unaffected all estates 
 prior to his estate tail. If there is no such protector, the 
 disposition by the tenant in tail in remainder will, it is con- 
 ceived, bar his estate tail, and all remainders, &c. depending 
 upon it. So that if lands are limited to A. in tail, remainder 
 to B. in tail, with remainders over, there not being a pro- 
 tector, the disposition by B. will have the effect above- 
 mentioned. That A., the tenant in tail in possession, is not 
 a protector, in reference to the remainder in tail to B. 
 appears settled from the decisions of Lords Brougham and 
 Lyndhurst, in Re Blewitt, 3 Myl. 3f K. 250 ; see also Wood 
 in Re, 3 Myl. ^ Cr. 266.]
 
 202 
 
 CHAP. XIV. 
 
 OF AN EXECUTORY DEVISE. 
 
 An executory devise [previously to the statute 
 7^8 Vict. c. 76] differed from a remainder 
 (among other things) in this, that a remainder 
 must have had a particular estate to support it, 
 while it is essential to an executory devise that 
 no particular estate be in existence; it having 
 388. Purefoy bg^jfj -^ rulc, that that shall never be construed 
 
 ■■ Rogers. 
 
 an executory devise which can be supported as a 
 remainder.* [But now by the 8th section of 
 
 2 Bl Comm. 
 179. Fearne, 
 Ex. Dev. 416, 
 ed. 8. 
 2 Saund. Rep. 
 
 / ' 
 
 * The five distinctions deducible from Mr. Fearne's book 
 on the subject are the following : — 
 
 An executory devise differs from a contingent re- 
 mainder : — 
 
 1st, Because an executory devise is admitted only in 
 
 last wills and testaments. 
 2ndly5 Because an executory devise respects personal 
 
 estate as well as real. 
 3rdly, Because an executory devise requires no pre- 
 ceding estate to support it. 
 ■Ithly, Because when any estate precedes an executory 
 devise, it is not necessary that the executory devise 
 should vest when such preceding est.ite determines. 
 And,
 
 OF AN EXECUTORY DEVISE. 203 
 
 the above statute contino-ent remainders cannot 
 be created by deed or will ; but in all instru- 
 ments made upon or after the 1st of January, 
 1845, they will take effect as executory devises, 
 if in a will, and executory limitations, in the 
 nature and with the properties of executory de- 
 vises, in a deed.] 
 
 5thly, Because an executory devise cannot be pre- 
 vented, or destroyed, by any alteration whatsoever 
 in the estate out of which or after which it is 
 limited. 
 Thus, if a testator devise to A. and his heirs, but if A^ 
 should die without issue in the lifetime of B., then to B., 
 and his heirs ; in this case, A. cannot bar the limitation 
 over to B. — The fifth position, however, requires this quali- 
 fication, that if the executory devise be limited to take effect 
 on an estate tail, then the tenant in tail may by [a deed of 
 disposition in conformity with the stat. 3^4 fV. 4, c. 74, 
 and 4 4" 5 IV. 4, c. 92,] bar the entail, and all remainders, 
 executory devises, and conditional limitations dependent 
 thereupon. If the executory devise is expectant on an 
 estate in fee, then, as the position intimates, there are no 
 means of preventing its taking effect if the event happens on 
 which it is to arise. But though executory devises are ad- 
 mitted in last wills and testaments only, yet in deeds taking 
 effect by the Statute of Uses, limitations tantamount to 
 executory devises are allowed under the denominations 
 of conditional limitations and contingent springing or shift- 
 ing uses. 
 
 [It may be here noticed, that the fifth position before 
 stated is, by the above statute of the 7 4' 8 ^«<5/. c. 76, 
 equally applicable to contiugent remainders existing under 
 instruments made before the 1st oi' Janua?//, 1845.]
 
 204 OF AN EXECUTORY DEVISE. 
 
 See as to the By executoi'y devise a fee or less estate may 
 
 accumulation ,,!.,/>* n • i i i i 
 
 of profits, sia^ Dc limited after a lee, either absolute or base; 
 SO it be to take effect in possession witriin a lire 
 or lives in being, or within twenty-one years 
 afterwards.* 
 
 [ Cole V. Seweli. * The Tule against perpetuities does not apply to re- 
 2 Con. 8f Law. mainders : 1st, because every remainder which is contin";ent 
 
 359, per Sir E. _ _ •' _ " 
 
 Sugden.] must vest in interest during the continuance of the par- 
 
 ticular estate or the very instant it determines ; and, 2ndly, 
 See 4 Cruise's because the owner of every vested remainder [being an 
 ed^4.^ ' estate of inheritance, and which must be an estate tail if 
 there are remainders over,] has the power, when in pos- 
 session, of barring all subsequent remainders. Hence a 
 limitation to J. for life, with remainder to the first son of B. 
 in tail, does not create a perpetuity ; because, although it 
 may be more than twenty-one years after the death of A. 
 that B. has a son, yet, on ^.'s death it is ascertained 
 whether the estate is to go according to the limitation, or 
 whether it shall revert to the settlor or his heir. So in the 
 instance of a limitation to A. for life, with remainder to the 
 first son of B. and the heirs of his body, and after failure of 
 such issue to C. for life, with remainder to his first son and 
 the heirs of his body, with like remainders over, — this does 
 not create a perpetuity in the eye of the law, although it 
 may prove in event that there is not a failure of the issue of 
 the first tenant in tail till one hundred years after the date 
 of the conveyance ; for as each successive tenant in tail, 
 when of age, has the power to bar the entail and remainders 
 over, the estate cannot be certainly inalienable for a longer 
 j)eriod than twenty-one years after the death of a life in 
 being. It may happen that />.'« eldest son shall marry and 
 die before twenty-one, leaving issue, by which means the 
 estate would be tied up for another minority (except released 
 by act of Parliament) ; yet, as this event is not certain, and 
 is an act of Providence rather than of the party, the rule is
 
 or AN EXECUTORY DEVISE. 205 
 
 Or a fee may be limited to commence in 
 fntiiro ; as, till such fee take effect, the ia- 
 
 not transgressed by this limitation in its inception. Hence [8 Jtirist, 22. 
 it is apparent, that the fee cannot, by way of remainder, be " 
 without an owner for a longer period than a life in being. 
 
 By executory devise the rule is clearly established as above 
 stated. It arose from the usual practice of settling real estates 
 to the husband for life, with remainder to his sons successively 
 in tail : which being allowed, renders the estate inalienable 
 during the existence of a life in being, and twenty-one years 
 after ; that is, till the son of the tenant for life attains his full 
 age. From one life the Courts gradually proceeded to several 
 lives in being at the same time ; for this in fact only amounted 
 to the life of the survivor : and as it might happen that a 
 tenant for life, to whose unborn son an estate tail was limited, 
 might die, leaving his wife enceinte, an allowance was also 
 made for the time of gestation of a posthumous son ; and, 
 therefore, it is commonly laid down as a general rule, that an 
 estate may be rendered inalienable during the existence of a 
 life, or of any number of lives in being, and nine months and 
 twenty-one years after. Some writers add another period of 
 nine months at the end of the twenty-one years, as an infant 
 tenant in tail might marry and die, leaving his wife pregnant ; 
 but the minority of the second posthumous son may with as 
 much propriety be added, as this second period of gestation ; 
 and as the same casualty may happen to the grandson, the 
 estate may in event become inalienable for an indefinite 
 period of time. It is obviously incorrect even to say, that an 
 estate may be tied up for a life or lives in being, and nine 
 months and twenty-one years after by the original limitation, 
 for the nine months are dependent on a very uncommon 
 event. [It does not appear to have been settled previously 
 to the case of Bengough v. Edridge, 1 Sim. 1 73, that] the 
 twenty-one years could by original limitation be made a 
 separate independent term, during which the estate should
 
 206 OF AN EXECUTORY DEVISE. 
 
 be inalienable, or whether the period after the life in being 
 must be measured -by the minority of the next taker. 
 In Beard v. Westcott, 5 Barn. S)- Aid. 805, the Judges 
 delivered no express opinion on the point. In the Court of 
 Common Pleas, on a former stage of the same case, this 
 question was separately argued ; and the Judges there de- 
 cided, that the term of twenty-one years might be a term in 
 gross, without reference to infancy. [The case came on 
 again before Lord Eldon, C. for further directions. It was 
 contended that the Court of K. B. in the certificate (5 Barn. 
 Sf Aid. 805) had not returned a sufficient answer to the case ; 
 and that it could not be collected from their certificate, 
 whether the circumstance that the limitations were to take 
 effect at the end of a term of twenty-one years, without 
 reference to the infancy of the person intended to take, 
 created such a suspense of the vesting as to render the 
 limitations void ; on the other hand it was insisted that the 
 conclusion to which the Court of K. B. had come involved 
 the decision of the point : and of this opinion was Lord Eldon, 
 who observed, that it was impossible the Court of K. B. 
 should not have considered that point ; the certificate ap 
 peared to his Lordship to afford a substantial answer to the 
 questions put. His Lordship confirmed the certificate of the 
 Judges of the Court of K. B., the inclination of his opinion 
 being that they were right. 1 Turn. 8f Russ. 25. But 
 in Bengough v. Edridge, the point was expressly decided by 
 Sir John Leach, M. R., that a limitation after an absolute 
 term of twenty-one years, and a life or lives in being is valid. 
 His Honor then observed, that although the rule of law was 
 framed by analogy to the case of a strict settlement, where 
 the period of twenty-one years was allowed in respect of the 
 infancy of the tenant in tail, yet he considered it to be fully 
 settled, that limitations by way of devise or springing use 
 might be made to depend upon an absolute terra of twenty- 
 one years after lives in being. This decision was confirmed 
 on appeal by the House of Lords, under the name of Cadcll 
 v. Palmer, 10 Bing. 140 ; 1 CI. Sf Fin. 372.] See, on the
 
 OF AN EXIXUTORY DEVISE. 
 
 subject of perpetuities, and restraints on alienation, 2 Ves. 4" 
 Bea. 61. Beard v, Westcott, 5 Taunt. 393, S. C. / 5 Barn. ^• 
 Aid. 801 ; 4 Ves. 337 ; 1 Turn. 4- Buss. 25. 
 
 It was once doubted, whether an estate for life could be 
 limited to a person imborn; but it is now settled, that such a 
 limitation is valid. In Hay v. Coventry, a testator devised 
 an estate to an unmarried man for life, with remainder to his 
 first and other sons in tail, with remainder to all and every 
 his daughters, equally to be divided between them ; but he 
 forgot to add words of inheritance to the limitation to the 
 daughters. An only daughter of y/., born after the testator's 
 death, was held to take an estate for life. 3 T. R. 83. But 
 an estate cannot be limited to the issue of a person unborn to 
 take by purchase : such a gift involves three lives (the father, 
 son, and grandson), while only one life (the father) is in 
 being ; and though there is a possibility that the rule against 
 perpetuities may not be contravened by this limitation, as it 
 may happen that the tenant for life shall have both a son and 
 a grandson born in his lifetime or within twenty one years 
 after his death ; yet, as the devise tends so strongly to a 
 jwtentia remotissima, the Courts have held it void on the 
 tendency which it has to a perpetuity ; but where there 
 is nothing on the face of the will to interfere with such a 
 construction, the Courts have, under the doctrine of cy-pres, 
 given the son (when born) an estate tail — that, in general, 
 being found the best to coincide with the intention of the 
 testator. Thus, in Humberston v. Humberston, 1 P. Wms. 
 332, a testator gave his estate to the Drapers' Company and 
 their successors, in trust to convey the said estates to his 
 godson. A., for life, and afterwards to his first son for life, 
 and so to the first son of that first son for life, and in failure 
 of such issue, over. Lord Chancellor Cowper held, that 
 although these limitations tended to a perpetuity, and were 
 therefore void ; yet, that the intent of the party might prevail 
 as far as the rules of law would allow, he decreed that all the 
 devisees in being should take estates for life ; but that the 
 limitation to the sons unborn should be in tail. — The words 
 
 207
 
 208 OF AN EXECUTORY DEVISE. 
 
 in italics in the above devise contributed no doubt in a great 
 measure, to produce this decree. In a late case, a testator 
 devised real estate to two trustees, until some son of Major Le 
 Hunt should attain twenty- one ; and then the testator gave 
 the same real estate to such son for life, with remainder 
 to his first and other sons in strict settlement, and so 
 on to every son of the said Major Le Hunt, with remainder 
 to the right heirs of J. B. The Court of King's Bench 
 certified, that the eldest son of Major Le Hunt, having 
 attained twenty-one years, took an estate tail in the 
 subject of devise. Le Hunt v. Hobson, K. B., Easter 
 Term, 1326. If a devise be void for a perpetuity, all 
 the devisees over are likewise void. The Court of Common 
 Pleas, however, held otherwise in Beard v. Westcott, 5 Taunt. 
 393 ; but that adjudication has lately been overruled by the 
 Court of King's Bench, 5 Barn. ^ Aid. 801 . 1 Turn. ^ Russ. 
 25. There a person devised to trustees, in trust to pay the 
 rents to his grandson ^., who was unmarried at the testator's 
 death, for ninety- nine years if he should so long live, and 
 after his death to his first son, for ninety-nine years in like 
 manner, and [so on in tail male to such first son lawfully 
 issuing for ever ;] but if J. should die without issue, male, 
 or should have issue male, and such issue should die under 
 the age of majority, then to B. absolutely : the Court of 
 Common Pleas held, that the executory devise over to B. 
 was good. 5 Taunt. 407. But the case being again lately 
 argued in the Court of King's Bench, the Judges there held, 
 that the devise to B. was absolutely void. 5 Barn. Sf Aid. 801. 
 Thus much for the limitation of the corpus of an estate in 
 perpetuity. 
 
 As to trusts for the accumulation of the rents and profits, 
 it is enacted by Thelluson's Act (39 ^ 40 G. 3, c. 98,) that no 
 person, after the passing of that act (28 July, 1800,) shall, 
 by any deed or will, settle or dispose of any real or personal 
 property so and in such manner that the rents, issues, profits, 
 or produce thereof, shall be wholly or partially accumulated 
 for any longer term than (1) the life or lives of any such
 
 OF AN EXECUTORY DEVISE. 201) 
 
 grantor [or grantors, settlor or settlors ; or (2) ] the term of 
 twenty-one years from the death of any such grantor, settlor, 
 devisor, or testator ; or (3) during the minority of any person 
 or persons living, or e7i ventre sa mire, at the time of the 
 death of such grantor, devisor, or testator ; or (4) during the 
 minority of any person or persons who, under the uses or 
 trusts of the deed or will, would, if of full age, be entitled to 
 the rents or annual produce so directed to be accumulated : 
 and in every case where any accumulation shall be directed 
 otherwise than as aforesaid, such direction shall be null and 
 void, and the rents and produce shall, so long as the same 
 shall be directed to be accumulated contrary to the provisions 
 of this act, go to such person or persons as would have been 
 entitled thereto, if such accumulation had not been directed. 
 Sect. 1. 
 
 Upon this statute it has been decided, that a disposition 
 for an accumulation for a longer period than the act allows, 
 is valid for the time allowed, and only void for the excess. 
 Griffiths v. Vere, 9 Ves. 127. Longdon v. Simson, 12 Ves. 
 295. lEyre v. Marsden, 2 Keene, 564, affirmed 4 M7/I. ^ 
 Cr. 231. Elborne v. Goode, 8 Jurist, 1001. For where the 
 trust is incapable of modification, it is void altogether. See 
 Lord Southampton v. Marquis of Hertford, 2 Ves. 4- B. 54. 
 Marshall v. Holloway, 2 Swan. 432.] But such excess 
 must be clearly distinguishable from the valid part of the 
 disposition, though it need not follow, but may, if clearly 
 distinguishable, precede the sound part of the trust. 
 
 [In Lombe v. Stoughton, 12 Sim.. 304, a sum of money was 
 bequeathed to trustees to be applied in erecting a mansion, 
 and in the mean time to be invested in the funds, and the 
 dividends to accumulate ; the principal with the accumu- 
 lations to be applied for the above purpose, and the surplus to 
 be laid out in land to be settled to the uses of the devised 
 estate. From circumstances, the mansion had not been 
 built, and the fund had accumulated for 21 years. Sir L. 
 Shadioell, V. C, held the accumulation not within the 
 meaning of the 39 4- 40 Geo. 3, c. 98.] 
 
 P
 
 210 OF AN EXECUTORY DEVISE. 
 
 heritance shall descend to the right heirs of the 
 testator.* 
 Harg. n. (5) Remainders (or at least what we may here 
 
 to Co. Lift. 20, „ . , N P 1 1*1 1 
 
 a. Fearne, Call remamders) ot chattels, either real or per- 
 
 .passi gQjj^]^ jjjay \yQ limited by executory devise, so 
 
 they be limited to a person or persons in being, 
 
 or to vest within twent^'-one years after the death 
 
 of a person or persons in being; but if the re- 
 
 yideante,c.2. malndcr be such as, if it were of freehold pro- 
 perty, would amount to an express entail, it shall 
 rest in the person in whom it so vests, and be at 
 
 * And although the executory devise is dependent on the 
 arrival of a future period only, and not on a contingent event, 
 so that the executory devise is sure to take effect on the day 
 appointed, yet the heir will take the whole fee in the interim, 
 and not merely a term, bounded by the ascertained con- 
 tinuance of his estate. Thus, if A. devised land to C. and 
 his heirs from the 1st day oi January next after the testator's 
 decease, the fee will descend to the heir at law of A. till the 
 1st day q{ January, when the executory devise will operate, 
 3 T. R. 88. 93. and carry the fee simple to C. in possession. Till the arrival 
 of the day, C. has not any estate in the land, [although he 
 [7 §• 8 Vict. has an interest transferrable and devisable.] In the language 
 1 /fc ' * 26 1 ^^ ^^' ^^'^^^' " ^6 ^^^ "^^^ ^"^ estate in possession, as he has 
 not a right of present enjoyment ; he has not an interest in 
 remainder, as the limitation to hira depends on the estate in 
 fee simple which descends to AJs heir ; he has not a con- 
 tingent interest, as he is a person in being and ascertained, 
 and the event on which the limitation to him depends is 
 certain ; and he has not a vested estate, as the whole fee is 
 vested in A. or his heirs. He has, therefore, no estate; the 
 limitation being executory, and conferring on him and his 
 heirs a certain fixed right to an estate in possession at a 
 future period. Butl. Fearne, 1.
 
 OF AN EXF.Cl'ToRY DEVISE. 211 
 
 such persoifs disposal, or go to his representative 
 on his death.* 
 
 * This passage requires some qualification. If freehold 
 property be devised to " A. and his heirs ; but if he shall 
 die without leaving issue, then to B. and his heirs," the 
 words " without leaving issue," have been held to mean an 
 indefinite failure of issue, and of consequence to create an 
 estate tail in A., with remainder to B. in fee. But the same 
 words as to leaseholds have been construed to mean a failure 
 of issue living at the death of the legatee ; and, therefore, a 
 bequest of leasehold property held for a long term of years, 
 to " A. for ever ; but if he shall die without leaving issue, 
 then to B ," gives A. the entire interest in the term, subject 
 to an executory devise over in favour of B., dependent on 
 the event of A.'s dying without issue living at the time of his 
 death. In devises of terms for years or other personal estate, 
 the Courts were much inclined to lay hold of any words in 
 the will, to confine the generality of the expression di/ing 
 without issue, to dying without issue living at the time of the 
 legatee's decease. But with respect to freeholds the rule was 
 just the reverse. Shapland v. Smith, 1 Bro. Cha. Ca. 75. 
 Hodgeson v. Bussey, 2 Aik. 89. Wilkinson v. South, 7 T. R. 
 555. Britton v. Twining, 3 Meriv. 183. [Kinch v. Ward, 
 2 Sim. ^ Stu. 409. Fearne's C. R.471, et seq. See 2 Ropers 
 Leg. 445, ed. 1828. But now in all wills made on or after 
 the 1st January, 1838, by the statute 1 Vict. c. 26, the rule 
 above-mentioned, as applied to beqiiests of leasehold and 
 other personal estate, is made the rule of construction in 
 regard to devises of real estate. The words of the 29th section 
 are as follow, ' that in any devise or bequest of real or per- 
 sonal 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 
 
 p 2
 
 212 OF AN EXECUTORY DEVISE. 
 
 Fearne,E.D. As a sfenei'al rule an executory devise cannot 
 
 418. ° "^ 
 
 be barred or destroyed by any act of the person 
 taking the preceding fee * 
 
 issue in the lifetime or at the time of the death of such 
 person, and not an indefinite failure of his issue, unless a 
 contrary intention shall appear by the will, by 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 : pro- 
 vided that this act 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.' 
 
 The student will observe, that the rules of construction 
 prescribed by the act, ss. 28, 29, make a very material 
 alteration in the quantity and value, not only of the estate of 
 the first devisee, but also in that of the person entitled under 
 the executory devise over : thus, if the devise were to A. 
 generally, or to A. and his heirs, and if he dies without issue 
 to B., or to B. and his heirs, under the old rule »." construc- 
 tion, A. took an estate tail, and with it, the power of acquiring 
 the absolute ownership by barring B.^s remainder, whether 
 for life or in fee : but now by the sect. 28, the devise to A. 
 without words of limitation carries the fee : and by sect. 29, 
 above cited, the devise over gives a fee to B. to take effect in 
 the event of A. dying without leaving issue, living at his 
 death, an executory devise, which is indefeasible by A.~\ 
 
 * If the preceding fee be an estate tail, the tenant in tail 
 may destroy the executory devise and all remainders over. 
 Pig. Rec. 130, 134, Cov. Rec. 176. The consequence is, 
 that an executory devise limited to take effect on an indefinite 
 failure of issue under the preceding estate tail is not too 
 remote, [for it is limited to take effect within the compass of
 
 OF AN EXECUTORY DEVISE. 
 
 213 
 
 But the person entitled to the executory estate ^>«"'«. -E-^- 
 may bar his own claim by release to the first 
 taker in possession or [lie may by the 7^8 Vict, 
 c. 76, s. 5, convey it to a stranger ; previously to 
 tliat statute he might have,] assigned it in equity 
 jor a valuable consideration ; and as to lands in l\^^.,^' 
 Ireland, he might have conveyed it at law, as if it %^'^«. ?■ 'a>^- 
 were vested in possession. He may also devise it. 
 
 So if the person entitled to the executory estate 
 came in as a vouchee on a common recovery or 
 levied a fine, [previously to the statutes 3^4 
 W. 4, c. 74, and 4 ^ b lb. c. 92,] he was barred 
 by estoppel.* 
 
 the estate tail, or eo instanti that it determines ; and at any 
 time before the happening of the event, on which the executory 
 devise is to talce effect, it is barrable by a deed of disposition 
 under the 3^-4 W. 4, c. 14:, and A &,- o lb. c. 92, as it was 
 previously to those acts barrable by recovery; but where an 
 executory devise, limited after a general failure of issue, is 
 collateral to and independent of any previous estate tail, the 
 executory devise over would be void. Lanesboroiigh v. Fox, 
 Ca. tern. Talb. 262, 4 Cru. Dig. 349, ed. 4, [unless under the 
 1 4" 2 Vict. c. 2Q, a similar devise might be construed to 
 be limited on a failure of issue living at the decease of the 
 person, the failure of whose issue is contemplated.] 
 
 * On a devise to "^. and his heirs, and if he die without Feame, E. D. 
 issue in the lifetime of C, then to C. and his heirs," \^ A. 
 entered and suffered a common recovery without vouching C, 
 the executory devise to C. was not barred by the recovery. Cro. 
 Jac. 592. It will be observed, that this is an executory devise 
 expectant on an estate in fee, and could not, therefore, be 
 barred by the recovery of A. alone, as it might have been, 
 if the limitation to A. had been to his issue, instead of to his
 
 214 
 
 CHAP. XV. 
 
 OF A CONDITIONAL LIMITATION. 
 Fearne, c. R. A REMAINDER is to cojumence whexi the par- 
 
 9.414. Sand. . p . 
 
 i/ses, 182, &c. ticular estate is, from its very nature, to deter- 
 mine ; it is, as it were, a continuance of the 
 same estate ; it is a part of the same whole. A 
 conditional limitation is not a continuance of the 
 estate first limited, but is entirely a different and 
 separate estate. It is 7iot to commence on the de- 
 termination of the first, but the first is to determine 
 ivhen the latter commences. It is the commence- 
 ment of the latter which rescinds and destroys 
 the former ; and not the ceasing of the former 
 which gives existence to the last. The particular 
 estate and remainders are, in fact, as the very 
 terms imply, hut one and the same estate. The 
 estate first [limited], and the conditional limita- 
 tions, are separate and distinct estates.* 
 
 * Between a condition and a conditional limitation there 
 is this difference : a condition respects the destruction and 
 determination of an estate ; a conditional limitation relates 
 to the commencement of a new one. A condition brings 
 the estate back to the grantor or his heirs ; a conditional 
 limitation carries it over to a stranger. Breach of a con-
 
 OF A CONDITIONAL LIMITATION. 21o 
 
 If an estate tail be first limited, and a con- See Co«tp. 379. 
 
 Driver v. 
 Edgar. 
 
 dition gives a right — the happening of the event whereon 
 the conditional limitation depends gives an estate : some act 
 must be done by the grantor or his heir to reduce the estate 
 into possession on breach of a condition, he must enter or 
 claim : it is the effect of a conditional limitation to destroy 
 the prior estate, and create a new one, without any act to be 
 done by the successor. The property of a condition is to 
 determine the whole estate, and we have seen, ante, pp. 186, 
 187, that a remainder cannot, in consequence, be limited to 
 commence on an event, which is marked out by a condition, 
 to defeat the preceding estate. This, however, being a 
 strict rule of law, is confined to limitations taking effect by 
 the common law. In the construction of conveyances to 
 uses and wills, a distinction is allowed between words which 
 operate by strict condition, and those which do in fact but 
 limit or circumscribe the boundary of the estate, though 
 they sound conditionally. Thus, words, which in con- 
 veyances at common law would be held to create strict 
 conditions, have, in conveyances to uses, been construed to 
 confer estates, which are appropriately called conditional 
 limitations, [and in wills, one class of executory devises]. 
 If a conveyance be made to /I . and the heirs of her body, 
 provided she marries with the consent of certain trustees, 
 but in case she marries without such consent, or dies without 
 issue, then to B. in fee; B.'s remainder would, under this 
 conveyance, at common law be void. If such a limitation 
 were contained in a conveyance to uses, or in a will, the 
 estate of B., though bad as a remainder, would yet be good 
 as a conditional limitation, or an executory devise, to 
 effectuate the obvious intention. Fry's case, 1 Vent. 199. 
 Gulliver v. Ashhy, 4 Burr. 1930. But though these pe- 
 culiar gifts may be termed conditional limitations, they are, 
 in fact, nothing more than executory devises in a will, and 
 shifting, springing, or contingent uses in a deed. The con-
 
 216 OF A CONDITIONAL LIMITATION. 
 
 ditional limitation be made upon that estate,* [a 
 deed of disposition in conformity with the pro- 
 visions of the 3 Sf A W. 4, c. 74, and 4 Sf 5 lb. 
 c. 92,] by the tenant in tail, before the event or 
 condition happen on which the limitation is to 
 arise, will bar the estate depending on that event 
 or condition ; [the same result was obtained by 
 a common recovery suffered by the tenant in tail 
 previously to the above statutes.] 
 
 Sup,,i,],.2]3. As to the barring, [transferring, and devising] 
 such conditional limitation, the law seems to be 
 the same as with respect to an executory fee by 
 devise. 
 
 ditional limitation is the common quality of all ; the devise 
 and the use are merely indicative of the conveyance. An 
 executory devise is a conditional limitation by tvill, — a 
 shifting use is the same by deed, — the latter more perfectly, 
 because a preceding estate is usually created with it, and the 
 time previous to the happening of a conditional limitation 
 should, and usually is, filled up with a limitation, which the 
 subsequent conditional gift cuts short, — if there be no pre- 
 ceding estate the future isolated gift assumes the character 
 of an executory devise or [a future or springing] use, — if 
 there be a preceding estate, then the subsequent interest is 
 in strictness a conditional limitation. This distinction, how- 
 ever, is not always attended to in practice. 
 
 * For an instance of which, see the case mentioned in the 
 last note.
 
 217 
 
 CHAP. XVI. 
 
 OF A REVERSION. 
 
 When a person has an interest in lands, and 2 bi. Comm. 
 
 grants a portion of that interest, or, in other 22, k piouIj.' 
 
 terms, a less estate than he has in himself, the Norton v " ' " 
 
 possession of those lands shall, on the determina- '"^'^^' 
 tion of the granted interest or estate, return or 
 revert to the grantor. 
 
 It must here be remarked, that it is said the 
 possession of the lands shall return to the grantor 
 on the determination of the grant, for a pj^esent 
 interest remains even during the existence of the 
 grant in the person making it ; and this interest 
 is what is called his 7'eversion, or, more properly, 
 his right of reverter.^ 
 
 * A reversion is something more than a bare right ; it is an 
 actual estate in the land, bearing the fruits of seignory. "When 
 a conveyance is made to two persons for life, with remainder 
 in fee to the survivor, this is a contingent remainder, and the 
 particular estate may be determined before the contingency 
 happens ; in which case, the fee would remain in the settlor.
 
 218 OF A REVERSION. 
 
 This right of" reverter can only arise by the 
 act of law ; it cannot be created by the act of the 
 party, though it is a consequence of his previous 
 act. If a person [by any assurance executed before 
 or upon the 31st day of December, 1833,] limited 
 particular estates to strangers with the ultimate 
 limitation to himself in fee, or to his own right 
 heirs, the latter limitation would not take effect 
 Walk, on Dene, as tt remainder, or by reason of the express limi- 
 tation of the grantor ; but, as the law would have 
 given to him or his heirs, as a consequence of the 
 preceding limitation, the same interest or estate 
 as the express words would have conveyed, those 
 words were deemed wholly nugatory, and the 
 grantor or his heirs was in in reversion^ or of the 
 old estate. [But by any assurance executed after 
 the above-mentioned day, such a limitation con- 
 fers upon the settlor a new estate, and he is not 
 in, of his old estate ; the statute '6 Sj- 4 W. 4, 
 c. 106, s. 3, having altered the law in this 
 respect.] 
 
 Watk.onDesc. A revcrsioii being an immediate interest, may 
 no, 111. , , , , , 
 
 be conveyed to another person, though to an 
 
 utter stranger. The conveyance of it need not 
 
 be confined, like the conveyance of a right, to 
 
 the actual tenant of the freehold. The proper 
 
 mode of conveying a reversion is by grant ;* 
 
 * Mr. Fearne is represented as having been of opinion 
 {^Posthum. Walks, 28,) that the grant of a reversion, in con- 
 sideration oimoneij, ivould require inrolment under tlie statute
 
 OF A REVERSION. 219 
 
 though it may also be passed by a lease and re- 
 lease.* or barqain and sale, such bargain and sale Seen, (i) to 
 
 ' ^ 'to Co. L/«.270, a. 
 
 „ and n. ( 1 ) to 
 
 271, b. s. iii. 
 
 oflT.H. But he was evidently mistaken if he entertained ^50^45^ 4'(jy 
 
 such opinion, as the statute of 27 H. 8, c. 16, is expressly 2 Co. 15. fVise- 
 
 confined to conveyances by bargain and sale onlj/, and does Wath.on Desc. 
 
 not embrace grants, which have nothing to do with a bargain ^]\' "• ^*-*' 
 
 and sale. Besides, that statute has an immediate and manifest 2d ed. 
 
 relation to the Statute of Uses ; and was ordained in order to 
 
 prevent secret transfers, which might have been effected by a 
 
 bargain and sale, as the bargainor would stand seised to an 
 
 use, and that use would have been immediately executed by 
 
 the statute, as, at this time, is the case of a bargain and sale 
 
 of a chattel interest, or lease for a year. The bargain and 
 
 sale was, therefore, ordered to be inrolled ; but a grant of a 
 
 reversion was not, at the time of that statute, a secret con- 0{ attornment, 
 
 veyance, as it was not good without attornment, which was a 2>\,etpost b 2 
 
 matter of publicity, and answered the same purposes as livery ^- '^• 
 
 did on a feoffment. 
 
 And the only case which Mr. Fearne has referred to is 
 
 that of Lade v. Baker, which cannot apply to the subject at 2 Vent. 149, 
 
 &c. 
 this day, since the statute of Anne has rendered attornment 
 
 unnecessary. 
 
 In the case of Lade v. Baker, the conveyance then in 
 question was declared to be not good us a bargain and sale, 
 for want of inrolment ; — that it could not be taken as a 
 covenant to stand seised, because it was not pleaded as such, 
 but as a grant ; and that it was not good as a grant, because 
 it was pleaded without attornment. The case oi Lade v. Baker, 
 therefore, seems to negative the doctrine of Mr. Fearne, as it 
 implies that the conveyance spoken of would have been good 
 WITHOUT INROLMENT, if attornment had been pleaded and 
 proved; and, as attornment is now become unnecessary, it 
 seems to follow, that such a grant would now be good. — 
 Note by Mr. Watkins. 
 
 * Which is now the usual mode of passing the reversion,
 
 220 OF A REVERSION. 
 
 [7 §-8 Vict. being regularly inrolled ; or the reversioner may 
 
 infra, ch.'uses coveuaiit to staiid seised 1 but a reversion cannot 
 
 Barff.^-'sa!e.] bc granted to commence in futuro .* 
 
 But, even before the Statute of Frauds (29 
 Car. 2,) a reversion could not be conveyed by 
 parol ; it must have been by deed, as it lay not in 
 livery. For v^here the possession did not pass, 
 the law required a deed, or a solemn instrument 
 under seal, when there was no matter of record, 
 as the evidence of the transfer. 
 
 A reversion may also be charged by the person 
 entitled to it.f 
 
 Vide ante, c. 8, If an cstatc tail were created, the reversion, 
 
 et post, b. 2, - . • 1 i-1 r • 1 • 1 
 
 c. 16. See as to unlcss it Were m the Crown, [might previously to 
 
 the operation , ^ n i -nr . ^ . ^ a n - n 
 
 ofafinc, a«fe, the statutcs 3 Sf 4 W. 4, c. 74, and 4^0 lb. 
 
 c'i5. ofrines. c. 92,] be barred or destroyed by the tenant in 
 
 as it saves the expense, in future investigations of the title, of 
 proving the existence of a particular estate at the time the 
 reversion was conveyed as such. 
 
 * Attornment was formerly necessary to perfect the transfer 
 of a reversion ; and attornment was originally coram paribus, 
 and equivalent to livery of seisin. It followed, that a rever- 
 sion could not be granted infuturo, a rule which still governs 
 the transfer of reversions ; \i. e. for an estate of freehold 
 to commence in futuro, when the grant operates at common 
 law, and not by the Statute of Uses. A grant to /. S. and 
 his heirs, to the use of B. and his heirs, from and after next 
 Michaelmas, is good as a springing use.] 
 
 I And as it is assignable, so it is devisable. 3 T. R. 93.
 
 OF A HF.VERSION. 
 
 2-21 
 
 tail suffering a recovery of the premises, [and now, 
 the same result may he effected, hy a deed of dis- 
 position in conformity with the above acts.] 
 
 [But a recovery by a woman tenant in tail of 
 the gift of her husband is void unless with the 
 consent of the person next entitled to the inherit- 
 ance by the 1 1 Hen. 7, c. 20 : and by stat. 34 Sf 
 35 Hen. 8, c. 20,* a reversion in the Crown of 
 lands granted to the subject for services, cannot 
 be barred.] 
 
 * If the reversion be in the Crown by its own reservation, 
 there can be no doubt of the imbecility of the recovery ; but 
 if the reversion descend or become forfeited to the Crown, 
 there is said to be a doubt whether it is then protected by the 
 statute of H. 8. The act recites, that divers of the King's 
 most noble progenitors, and especially King Hen. 8, most 
 liberally above all other had given and granted, or otherwise 
 provided, to his and their loving and good servants and 
 subjects, lands, tenements, rents, services, and hereditaments, 
 to the intent to recompence them for services performed. 
 It is therefore enacted, that no recovery by a tenant in 
 tail of any lands, tenements, or hereditaments, " whereof 
 the reversion or remainder at the time of such recovery 
 shall be in the King, shall bind or conclude the heirs 
 in tail ;" but that after the death of any such tenant in tail, 
 against whom any such recovery shall be had, the heirs 
 in tail may enter, have, and enjoy the said lands and 
 tenements, the said recovery to the contrary notwithstanding. 
 34 & 35 H. 8, c. 20. In a late case, a settlement was made See also 3 §- 4 
 to the use of the first and other sons oi A. B., severally and '^'.o'*^' 
 
 •' s. 18. 
 
 successively, in tail male, with divers remainders over, with 
 
 ultimate remainder to the right heirs of the settlor. The 
 
 settlor was afterwards attainted of treason, whereby his 
 
 reversion in fee became forfeited to the Crown. A tenant in 
 
 tail male under this settlement, when in possession, suffered
 
 '222 OF A REVEIISION, 
 
 The reversioner continues tenant to tlie lord 
 during the existence of the particular estate ; 
 and the particular grantee shall hold of the re- 
 versioner ; and, as a necessary consequence or 
 incident, the rent, fealty, Sec, shall always follow 
 the reversion.* 
 
 a recovery, and sold the premises to Lord Clanmorris, who 
 now objected to the title, on the ground of the doubt said to 
 be afforded by the books as to the operation of the recovery 
 in barring the reversion forfeited to the Crown. In the House 
 of Lords the existence of the doubt was recognised ; but 
 their Lordships made no attempt to settle the question. 
 Genera] opinion, said Lord Redesdale, was certainly against 
 the title ; but it was not necessary to come to any decision 
 on the point. It was sufficient, on the question before the 
 House, if the law was doubtful. A purchaser had a right to 
 require a marketable title, and this title rested on a point of 
 law which was at least doubtful. The Lord Chancellor also 
 thought that the doctrine on this point could not be stated so 
 clearly against the Crown, that a purchaser ought to be 
 compelled to take a title depending on it ; and that, as the 
 purchaser had been brought into Court upon a doubtful title, 
 he ought to be discharged from his purchase, with costs ; 
 which was accordingly done. Bloss v. Clanmorris, 3 Bligh, 
 62 ; and see further on this subject, mfra, ch. Fines and 
 Recoveries, and Cov. Rec. 222. 
 
 [Where the grant was originally by the Crown for 
 natural affection, the reversion might be barred, as was 
 decided in the Duke of Grafton v. Lond. and Birm. Rail. 
 Co., 5 Bing. JV. C. 27, the grant was by King Charles 2, for 
 natural love and affection to one of his illegitimate sons Henri/ 
 Fitzrorj, Earl of Euston (afterwards created Duke of Grafton,) 
 in tail male. In 1835, the present Duke, as heir in tail male, 
 executed a disentailing deed under the 3 4" 4 IV. 4, c. 74, the 
 Court of Exchequer held the reversion barred.] 
 
 * Consequently, if a remainderman grants an estate com-
 
 OF A REVERSION. 
 
 t223 
 
 As the creation of a particular estate is of Piowd. 153. 
 
 ' . 1 .55. 
 
 absolute necessity to give existence to a reversion, 
 
 so the continuance of the reversion depends upon 
 the continuance of the particular estate ; for if, 
 by any means, as by forfeiture, surrender, or 
 regular expiration, such particular estate de- 
 termine, the interest of the grantor must cease, 
 of necessity, to be an estate in reversion^ and will 
 become an estate in possession, mio which he may 
 immediately enter. 
 
 mensurate with the prior interest in the land, nothing passes ; 
 but if a reversioner makes such a grant, the fruits of seignory 
 will pass, and the conveyance will be good. Thus, li A. grant 
 to B. for life with remainder after the death of B. to C. in fee, 
 and C. grant to D. for the life of B., this grant is nugatory : 
 but if a tenant in fee grants to A. for life, and afterwards grants 
 to B. for the life of A., this latter grant will be valid, and 
 confer on B. a remainder, which will fall into possession on 
 the forfeiture or merger of the prior estate in A. Co. Litt. 49. 
 Salk. 232. Lord Raym. 523.
 
 224 
 
 CHAP. XVII. 
 
 OF A RIGHT. 
 
 Gitt). Ten. 21, One pei'soii may have the actual possession of 
 •2%i.Com!''\95. certain lands, and another the light of possession, 
 or the right of propriety ; as, if a person enter 
 wrongfully into my lands, he will have the actual 
 possession ; but I may enter and oust him if I 
 please, as the right of possession is in me.* If, 
 
 * This power of actual entry is now very much curtailed. 
 It was formerly allowed even to actual ouster ; but at the 
 present day appeals to force are much discouraged. A right 
 of entry, according to modern notions, may be defined to be, 
 a right to bring an action of ejectment. When real actions 
 fell into disuse, the phrase, " right of entry," became inappli- 
 cable to the remedies retained. It is only as opposed to a right 
 to sue in a real action that it can be properly understood. 
 [Real actions are now abolished by the stat. 3 4" 4 fV. 4, c. 27, 
 s. 36 ; previously to their abolition however they had grown 
 obsolete.] There was a certain length of time, during which 
 the right might be pursued without resortingto the formidable 
 process of a real action ; during that time the party might 
 have made an actual entry: but such entries obviously tended 
 to and frequently produced breaches of the peace. To pre- 
 vent this, a new species of action, called an ejectment, was 
 introduced, by means of which all claims of title to enter were 
 tried and adjusted ; and to facilitate the use of this action,
 
 OF A HIOIIT. 
 
 225 
 
 however, I do not exert that right and enter 
 within a limited time, my power of entering is 
 taken away, and I am driven to my action, to 
 recover the possession ; and if 1 do not avail 
 nnyself of my possessory action, I sliall have only 
 a right of propriety , or mere right, left. 
 
 A right is now grantable over, and it can of lo Co. 46, b, 
 
 '^ Lampet's case, 
 
 conrse be extinquished. It could not be even sur- n- (i) to Co. 
 
 Lilt. 265, a. 
 
 rendered; it would not pass \o 'a stranger hy fine, Co.L?«.338,a, 
 
 Touchst. 14. 
 
 2 Co. 55, 56. 
 
 Buckler^s case. 
 
 the law on forcible entries, as laid down in Co. Litt. 257, b., 
 was more strictly administered. By that law it appears, that 
 a peaceable entry by the rightful owner will subject him to 
 the penalties of a forcible entry, if he detains possession after 
 it has been demanded by the person ousted ; a peaceable 
 entry, therefore, cannot avail much. But though the phrase 
 "right of entry," is thus inaptly retained, its use is to ascer- 
 tain the right to bring an action of ejectment, which cannot 
 be maintained by a person who has not a right of entry. See 
 2 Wood. Led. 170. In the case of vacant and open possession, 
 the peaceable entry of the rightful owner is perhaps an ex- 
 ception to the above remarks, 8 Kast, 356 ; but the appearance 
 of the late tenant, and a demand of possession by him, would 
 without doubt be sufficient to constitute a forcible detainer, 
 if the possession were not immediately restored to him. See 
 also, on this subject, the late case of Milner v. McLean, 
 2 Car. S,- Payne, 17. As to descents which toll the entry 
 [now abolished, by statute 3^4 W. \,c. 27, s. 39], objections 
 on that head were overcome by laying the demise in the 
 lifetime of the ancestor, which by the common consent rule, 
 the defendant was obliged to admit before he was permitted 
 to defend the action ; and if he did not defend, judgment was 
 given against him by default. Adam. Eject. 41. 
 
 Q
 
 226 OF A RIGHT. 
 
 though by such fine the right would be harred, 
 as the cognizor could not claim a right against 
 his own fine, which is a matter of record, and, 
 by consequence, an estoppel ; as by that fine he 
 Fiotod. 485, had acknowledged the right to he in another : [but 
 by the statute 4 ^ 5 TF. 4, c. 92, which abolished 
 fines and recoveries in Ireland, a contingent 
 estate, right, or interest in lands there, might 
 have been conveyed in the same manner as if it 
 were vested in possession, 5. 22. [And now by 
 the 5th section of the 7^8 Vict. c. 76, which 
 extends to all parts of the United Kingdom ex- 
 cept Scotland, any contingent or executory in- 
 terest, right of entry for condition broken, or 
 other future estate or interest may be conveyed 
 to a stranger, but not so as to assign any chose in 
 action at law, nor to dispose of the expectancy of 
 an heir or next of kin of a living person.] The 
 
 1 stra. 132. proper mode of extino-uishment is that of a re- 
 
 2 Atk. 420. ^ ^ ^ 
 
 lease, to the person in actual possession of the 
 land.* [Before the abolition of fines, a fine sur 
 cognizance de droit tantum had the same eflfect. 
 Before the recent statute 1 Vict. c. 26, a right, 
 though descendible, was not devisable ; but now 
 by that act all property to which the testator 
 is entitled at law or in equity, in possession, 
 reversion, or in contingency, may be disposed of 
 by a will in writing, signed at the foot or end by 
 the testator, or by some other person in his pre- 
 
 * [A release of right to the remainderman will enure to 
 the benefit of the particular tenant. Co. Litt. 353.]
 
 OF A RIGHT. 
 
 227 
 
 sence and by his direction ; such signing to be 
 made or acknowledged by the testator in the pre- 
 sence of two or more witnesses, present at the sec.9. 
 same time, who shall attest and subscribe the will 
 in the presence of the testator. The power of 
 testamentary disposition is, by the concluding- 
 branches of the third section, extended to all 
 contingent, executory, or other future interests 
 in any real or personal estate, whether the testator 
 may or may not be ascertained as the person or 
 one of the persons, in whom the same respec- 
 tively may become vested, and whether he may 
 be entitled thereto under the instrument by 
 which the same respectively were created, or 
 under any disposition thereof by deed or will ; 
 and also to all rights of entry for conditions 
 broken, and other rights of entry; and also to 
 such of the same estates, interests, and rights 
 respectively, and other real and personal estate, 
 as the testator may be entitled to at the time of 
 his death, notwithstanding that he may. become 
 entitled to the same subsequently to the execu- 
 tion of his will.] 
 
 Q 2
 
 226 
 
 CHAP. XVIII. 
 
 OF A POSSIBILITY.* 
 
 i%t!-an^e'ri2 ^ POSSIBILITY caiiTiot be on a possibility. A 
 2 Atk. 420. possibilitv may be released; is devisable fas well 
 
 1 H. Blackst, V J J ^ ^ L 
 
 30. •^Durnf. by a will made previously to the 1st day of 
 
 §• East, 88. -^ r J J 
 
 2 P. Wms. 132. 
 
 * Possibilities are generally arranged into two classes : 
 the one consisting of possibilities which are coupled with an 
 interest, such as contingent remainders, executory devises, 
 springing or shifting uses, [depending upon a contingency ;] 
 the other bare or naked possibilities, such as the hope of in- 
 heritance entertained by the heir on the courtesy of his 
 ancestor, or the chance of succession of an individual where 
 the gift is to several with remainder to the survivor. The 
 former class may, perhaps, with more propriety be deno- 
 minated contingent interests, and the latter mere expec- 
 tancies ; for a possibility coupled with an interest is more 
 than a possibility, it is a present interest, and may, [as 
 noticed in the text, be transferred and] devised ; see Perry v. 
 Phelips, 17 Ves. 173, 182. On the other hand, the ex- 
 pectancy of an heir-apparent, during the lifetime of his 
 ancestor, is less than a possibility, being but a mere hope or 
 anticipation, [^and this is expressly excluded by the late 
 statutes [mentioned in the text ; and by the 1 Vict. c. 26] 
 from the testamentary power of disposition thereby conferred. 
 See also 3 Mer. 667.] All contingent interests are execu- 
 tory, and while they remained so, the owners [could not
 
 OF A POSSIBILITY. 229 
 
 January. 1838, as by one made upon or since that lo Co. so, a. 
 day, accordino- to the statute 1 Vict. c. 26, s. 3] ; Feame, 547, 
 
 1 • • 7/ / • • ri 7 T ^*8. 2 5/acA. 
 
 '<mA\s assiqnable by coimmssioners of bankrupt. It Com. 290. 
 
 r • 1 1 I I IIP 1 o a ^ la. iZep. 158. 
 
 [might have been barred before the statutes o 6f ^ 
 W. 4, c. 74, as to lands in England and Wales, 
 and 4^-5 lb. c. 92, as to lands in Ireland,] by 
 fine, by way of estoppel ; but, it shouhJ seem, not 
 otherwise. So [previously to the 7 ^' 8 Vict. c. 76, 
 as to lands in England^ it was assignable in equity, 
 at least if accompanied with an interest; so an 
 
 before the recent statute mentioned in the text, if relating to 
 lands in England^ assign them at law, 10 Co. 50, a. 4 Co. 
 66, b. I Ifist. 264, b, 265, a, h, n. 212. 1 Ves. 390, 411. 
 3 Ves. 391. 3 T. R. 88, [although they were assignable in 
 equity, 1 Ves. 409. 2 P. Wms. 191. 2 Atk. 420. But if 
 they related to lands in Ireland, they might have been 
 conveyed or assigned at law as noticed in the text]. Con- 
 tingent interests, and even mere expectancies [might, as 
 before observed, be bound by fine by estoppel]. Thus, 
 where a husband and wife granted to trustees an estate, 
 of which the wife's father was seised in fee simple, and 
 afterwards in the lifetime of the father they levied a fine 
 of the lands to the uses of the settlement, and the father 
 died, leaving the wife one of his coheiresses at law : on a 
 question concerning the effect of these assurances, it was 
 held, by the Court of King's Bench, that the moiety of 
 the wife became subject to the uses of the settlement, by 
 reason of the fine, which operated as an estoppel against the 
 husband and wife, and all persons claiming title under them. 
 Helps V. Hereford, 2 Barn. S)- Aid. 242. See more on 
 Possibilities and Estoppel, 1 Fonbl. Tr. Eq. ch. 4, s. 2. 
 1 Madd. Ch. 549, 2d edit. Hooper v. Rossiter, 1 M'Clel. 
 527.
 
 230 OF A POSSIBILITY. 
 
 agreement to settle lands in possibility should be 
 decreed, if they afterwards descended : [and as 
 to lands in Ireland it might by the above statute 
 4 (^ 5 W. 4, c. 92, s. 22, have been conveyed in 
 the same manner as if it w^ere vested in possession : 
 [and now by the 7^8 Vict. c. 76, 5. 5, which 
 extends to all parts of the United Kingdom, 
 except Scotland, a possibility (not being the mere 
 expectancy of one, as heir or next of kin,) of a 
 person living, may be transferred. 
 
 A Court of equity will not enforce a voluntary 
 assignment of a possibility.*] 
 
 * Meek V. Kettlewell, 1 Hare, 464, afF. 1 Phillips, 342.
 
 231 
 
 CHAP. XIX 
 
 OF AN EQUITY OF REDEMPTION. 
 
 If a person convey lands to another on con- 
 dition, as a security for money, and the condition 2 5/. Com. i58. 
 
 Powell on 
 
 be broken, he may, under certain circumstances, Mort. passim. 
 
 , , . ... ... . , Butl.n.{l)to 
 
 redeem the premises; and this privilege is deno- Co.Litt.205,&. 
 
 , , . . ,.7 • * &(l)to208,a. 
 
 minated his equity of redemption. 
 
 * The equity of redemption continues open for twenty 
 years after the last acknowledgment of it : beyond that time 
 the mortgagor is for ever barred of relief in equity. At law 
 he has lost the estate by non-performance of the condition ; 
 and he loses it in equity by allowing the mortgagee to remain 
 in possession for twenty years without demanding an account 
 or obtaining from him some acknowledgment of the existence 
 of the mortgage. At law, [before the operation of the recent 
 Statute of Limitations 3 Ss' 4 fV. 4, c. 27] sixty years were 
 allowed for the prosecution of particular claims to real estate. 
 In equity, the remedy is for ever lost by twenty years' ac- 
 quiescence in the adverse enjoyment of another person. 
 " The lapse of twenty years," observes that eloquent Judge, 
 Sir Thomas Plumer, " affords a substantive insuperable plea 
 in bar : it is the fixed limit to the remedy- -the tempus co?i- 
 stitum : one day beyond is as much too late as one hundred 
 years. This is the peremptory inflexible rule at law, fixed 
 by positive statutes, if there has been adverse possession, and 
 no disability or fraud : no plea of poverty, ignorance, or 
 mistake, can he of any avail : however clear and indisputable
 
 232 OF AN EQUJTY OF REDEMPTION. 
 
 Such equity of redemption may be released to 
 the mortgagee. Sometimes, indeed, the convey- 
 ance called a lease and release is adopted for the 
 
 the title, if the merits could be inquired into, however de- 
 monstratively tortious and wrongful the adverse possession, 
 the fact of such possession, and the time, preclude all inves- 
 tigation of the title: the door of justice is closed: the 
 claimant cannot be heard to shew his title : it is a decisive 
 answer to him, that he comes too late : that alone is the bar : 
 his title remains, but he has lost his remedy." Cholmondely 
 V. Clinton, 2 Jac. ^ Walk. 139. Raffetyy. King, 1 Keen, 
 601. 
 
 [From the case of Baldwin v. Peach, 1 Yo. Sj- Col. 453, the 
 following principle may be deduced, that Courts of equity will 
 presume a release within the same limits of time within which 
 juries will be directed to presume it, whether any statute of 
 limitations is applicable or not. 
 
 The 28th section of the statute S S, 4 W. 4, c. 27, enacts 
 that the mortgagor shall be barred of his equity of redemption 
 after twenty years from the time the mortgagee took pos- 
 session, or from the last written acknowledgment. Upon the 
 subject of acknowledgments of the mortgagor's title by the 
 mortgagee, it had been decided, previously to the above 
 statute, that the following references to the mortgage were 
 sufficient to keep alive the equity of redemption for the period 
 of twenty years from the time they were made. Thus, where] 
 the mortgagee has alluded to the mortgage as a redeemable 
 interest in a letter to a friend (Fenwick v. Reed, 6 Madd. 8,) 
 (such letter proving itself, ^6.) — in a settlement between third 
 parties (2 Cox's Ch. Ca. 294,) — in a surrender, to which nei- 
 ther the mortgagor nor his heirs are parties {Hansard v. 
 Hardy, 18 Ves. 455,) — in an assignment wherein the estate 
 is treated as subject to redemption {Smart v. Hunt, 4 Ves. 
 478, n. a.) — in an answer in Chancery {Proctor v. Oates, 2 
 Atk. 140,) — by a recital in a deed {Carew v. Johnston, 2 Sch.
 
 OF AN EQUITY OF REDEMPTION. 233 
 
 transfer of such interest ; but then the latter 
 species of conveyance does not operate as a lease 
 and release with respect to the equity, as a per- 
 son cannot he seised of an equity to an use ; and, 
 consequently, as no use arises by the bargain and 
 sale, the release can only operate, with respect to 
 the equity, as a mere or proper release ; just as it 
 would have done witfiout such a bargain and sale, 
 or lease for a year. 
 
 4" Lef. 295,) — in a devise, such as " all my mortgaged estate," 
 or in words of like import {Anon. 3 Atk. 314,) — by a demand 
 of the principal money, or a receipt of interest ( Trash v. 
 White, 3 Bro. C. C. 289,) by an account kept ( Vernon v. 
 Bethell, 2 Eden. Rep. 114,)— stated (1 Pow. Mortg. 370)— 
 settled {Gould V. Tancred,2 Atk. 533,) — or promised (1 Poiv. 
 Mortg. 370, n. (B.) ). The mere demand, however, of an 
 account on the part of the mortgagor, without process or 
 acknowledgment {Hodle v. Healy, 1 Ves. Sf Bea. 540,) — or 
 an account stated without the authority of the mortgagee 
 {Baj-o7i V. Martin, Coop, Rep. 192,) — or a devise in the 
 words above-mentioned after a foreclosure or a conveyance of 
 the equity of redemption {Silberschildt v. Schiott, 3 Ves. ^ 
 Bea. 45,) — would not, even before the late statute, take the 
 case out of the rule. Some of the books seem to have sug- 
 gested that a continued acquiescence by the mortgagee in the 
 mortgagor's right to redeem, was requisite to keep alive the 
 equity. But it is observable, that any one of the acknowledg- 
 ments just mentioned would singly confer a right of redemp- 
 tion ou the mortgagor and his heirs, for a period of twenty 
 years from the time such acknowledgment was made, and for 
 a further period of ten years beyond that time, if the mort- 
 gagor or his heirs were infant, lunatic, under duress, beyond 
 sea (not having absconded, Jenner v. Tracey, 3 P. Wms. 287, 
 n. (B.) ) or under any other legal disability. 1 Poio. Mortg. 
 389. [Sec also 3 4-4 VV. 4, c. 27, s. 16.]
 
 234 OF AN EQUITY OF REDEMPTION. 
 
 The conveyance by lease and release has, there- 
 fore, been adopted for caution only ; as, in case 
 there were an equity only in the person intending 
 to convey, such release would operate as a common 
 release, and so pass it to the mortgagee, notwith- 
 standing the bargain and sale ; and in case there 
 were any legal freehold^ interest, or estate, left in 
 the mortgagor, by reason of any defect in the 
 mortgage deeds, then the bargain and sale would 
 operate ou such legal interest or estate, and, with 
 the release, pass tliat also, [but now by the 7^8 
 Vict. c. 76, s. '2, the lease for a year is dispensed 
 with.] 
 
 See 3 5ro. ch. In like manner, as a Court of equity considers 
 
 Ca. 289. . 
 
 Trashy. White, a mortgage, though in fee, merely as a security 
 for money till the time of redemption be past, the 
 mortgagor frequently disposed of his own equity, 
 or right of redemption, to a stranger. This could 
 properly be only by way of assignment, grant, 
 or devise; for he could not pass it hy feoffment, 
 bargain and sale, nor, consequently, by lease and 
 release, as the seisin, or legal estate, was in the 
 mortgagee ; though the lease and release were 
 often adopted for the reason before noticed with 
 respect to the conveyance of such an equity to the 
 mortgagee in possession.* 
 
 * If a mortgage in fee be made before marriage, the wife 
 [if married on or before the 1st January, 1834], will not be 
 entitled to dower of the equity of redemption : [for dower 
 previously to the statute 3^4 W. 4, c. 105, was a mere
 
 OF AN EQUITY OF REDEMPTION. 235 
 
 [An equity of redemption is liable to escheat Lord Downe 
 
 . V. Morris, 
 
 for want of heirs of tlie mortgagor.] 8 Jurist, 486. 
 
 legal right ; and, by a strange anomaly, not allowed in equity, 
 [but now by that statute women married after the above day 
 are dowable out of equitable estates]. So, if a mortgage for 
 a term were made before marriage, the mortgagor's wife would 
 not be entitled to dower as against the mortgagee. If the 
 mortgage were made after marriage, she would of course take 
 precedence of the mortgage, whether it were in fee or for 
 years, unless she concurred in the mortgage by fine or 
 recovery ; and then she would be deprived of her dower to the 
 extent only of the mortgage, [if no farther purpose was 
 declared], a fine or recovery on the occasion of a mortgage 
 being a partial, not an absolute, bar of dower. [But if the 
 deed indicates a purpose, beyond that, of creating a charge, 
 and shews an intention that the right of dower was to be 
 wholly relinquished, the wife will be barred. In a mortgage 
 or other deed creating an incumbrance, and in which the wife 
 concurred in declaring the uses of the fine, it has not unfre- 
 quently been a doubtful question, what expressions would 
 be considered sufficiently indicative of an ulterior purpose 
 beyond that of making the security. Roper s Hush, and 
 Wife, ed. 1826, 1 Vol. .520, 537. 2 Powell's Mortg. by 
 Coventry, p. 679, n 
 
 The 21st sect, of the statute 3 4" 4 W. 4, c. 74, seems 
 intended to obviate similar questions arising on a mortgage 
 by a tenant in tail. It enacts that any disposition under the 
 act by way of mortgage, or for any other limited purpose shall, 
 to the extent of the estate thereby created, be an absolute bar, 
 in equity as well as at law, to all persons, as against whom, 
 the disposition is authorized by the act, notwithstanding any 
 intention to the contrary expressed or implied in the deed. 
 It is presumed that it was not the intention of the act to 
 prevent a re-settlement of the equity of redemption by the 
 mortgage deed ; although that might be considered within the
 
 236 OF AN EQUITY OF REDEMPTION. 
 
 [Sometimes a mortgagor mortgages his equity 
 of redemption to a second or third mortgagee, 
 
 letter of the words " intention expressed." The latter branch 
 of the clause provides, that if the estate created be pour 
 autre vie for years absolute or determinable, or if an interest, 
 charge, lien, or incumbrance shall be created without a term 
 of years or any greater estate for securing the same, the dis- 
 position shall in equity be a bar only so far as may be neces- 
 sary to effectuate the mortgage or other limited purpose, 
 interest, lien, charge, or incumbrance, notwithstanding any 
 intention to the contrary expressed or implied.] 
 
 As to a mortgage in fee made before marriage, [a widow 
 married on or before the 1st day of January, 1834,] cannot 
 redeem, having no interest in the equity of redemption ; but 
 as to a mortgage by demise made before marriage, she is 
 entitled to be endowed of a third part of the rent, and a 
 third part of the reversion ; and that interest will enable her 
 to redeem ; which having done, she will stand in the situation 
 of an ordinary tenant for life paying off an incumbrance, and 
 must pay one-third of the interest on the mortgage money, 
 and her proportion of the principal, if the heir sues to redeem 
 the mortgage in her hands in her lifetime. Suppose an 
 estate, yielding 180/. a-year, to be mortgaged for a term of 
 years before marriage for 1200Z. at 5/. per cent, (the interest 
 of which will be 60Z. a-year,) and the husband dies, leaving 
 a widow and son : the widow will be entitled to a third part 
 of the pepper-corn rent reserved on the mortgage term, and 
 to a third part of the reversion of the immediate freehold and 
 inheritance of which her husband died seised in possession. 
 On a writ of dower at law she would obtain a verdict ; but it 
 would be with a cesset executio during the term. Her remedy 
 at law, therefore, would in the end be fruitless. But having 
 a right to redeem, she may pay off the mortgage money, and 
 take an assignment of the term to herself; and afterwards 
 file a bill against the lieir to compel him to redeem or stand
 
 OF AN EQUITY OF REDEMPTION. 237 
 
 and even more ; and the general rule is that the 
 several mortgagees are entitled to the benefit of 
 
 foreclosed. He would of course redeem, if the estate were 
 not overburthened by the mortgage. In a Court of equity he 
 would not be allowed to set up the mortgage term as against 
 the widow, for the estate was burthened by their common 
 ancestor ; and good conscience dictates that they should bear 
 the burthen created by the author of their respective rights 
 in proportionate shares. The widow is entitled to one-third 
 of the estate for her life, and a tenant for life is only bound 
 to keep down the interest on prior charges ; if the principal 
 be paid off, he must contribute in proportion to the benefit he 
 derives from a cessation of the annual payments of interest 
 during his life, which is measured by the value of his life, his 
 age, constitution, &c. — a reference being made to a Master in 
 Chancery to ascertain the exact proportion. By redemption, 
 the widow will obtain a third part of the rent minus a third 
 part of the interest ; and the yearly account will stand thus : 
 
 Widow. Heir. Total. 
 
 
 3 
 
 i 
 
 i 
 
 
 
 £ 
 
 £ 
 
 £ 
 
 £ 
 
 Rent - 
 
 60 
 
 60 
 
 60 
 
 180 
 
 Interest 
 
 20 
 
 20 
 
 20 
 
 60 
 
 40 40 40 120 
 
 Hence, by redeeming, the widow will be benefited 40/. a-year. 
 If the heir redeem, the widow will be entitled to the whole 
 principal money, deducting the probable gross amount of 
 interest which she would be bound to pay during her life. 
 After redemption, she would of course be entitled to her 
 whole dower. And these observations apply to all cases of 
 mortgages made by the husband, except in the case of a
 
 238 OF AN EQUITY OP REDEMPTION. 
 
 tlieir securities according to the priority of their 
 dates, the maxim being qui prior est tempore, 
 
 12 res. 130. potior est jure. There are, however, exceptions 
 to this rule in cases of fraud, or where the prior 
 mortgagee negligently allows the title deeds to 
 remain in the custody of the mortgagor ; in which 
 case if a second mortgagee, without notice of the 
 first, advances money on the mortgaged property, 
 
 2 Bro. c. c. the second mortg-aaee will be preferred to the 
 
 658. ^ Eq. c. ° f ^ 
 
 Ah.^-2\. first, because by his neglig-ence he has enabled 
 
 the mortgagor to commit a fraud upon the second 
 mortgagee. 
 
 mortgage in fee made before a marriage [taking place on or 
 before the 1st day of January, 1834 :] then, on the principle 
 that there is no dower of a mere trust, she will not be 
 entitled to redeem. But if the mortgage be in fee, and made 
 after such marriage, and in every case of a mortgage for 
 years, whether before or after such marriage, or whether the 
 mortgage be satisfied or not, the widow by a circuity may 
 become entitled to a beneficial estate in dower. And it is 
 observable, that a dowress, like an heir or devisee, has a right 
 to have the personal estate of her husband, as far as it will 
 extend, applied in discharge of mortgages and other debts 
 contracted by the husband, which are charges on the land 
 whereof the wife is dowable. The authorities for this note 
 will be found in 2 Poiv. Mortg. 681, 690, a, et seq. [But 
 now by the statute 2, 8f ^ W. 4, c. 105, a widow married 
 after the above day is dowable out of equitable estates of the 
 husband ; so that she would in the case of a mortgage in fee 
 above mentioned be entitled to redeem. For more on the 
 subject of mortgage, see pages 13, 16, 35, supra, 158 infra in 
 notis, p. 258, ch. Rents.
 
 OF AN EQUITY OF REDEMPTION. 239 
 
 Legal mortgages are preferred to equitable : ^'«''- 153. 
 but with reference to several equitable mort- 
 gages, the same rule, as to priority, prevails as ^ ''^"" ^^•^• 
 with legal. 
 
 So also in regard to mortgages of chattels real ; 
 but there exists an important distinction in re- 
 ference to securities upon choses in action ; for 
 notice to the depositories of the fund is essential 
 to the completion of such securities; consequently, 
 mortgages of choses in action prevail according to 
 the priority of the notice to the depositories. 
 
 The equitable as well as the legal interest in Wiltshire v. 
 leasehold, is a chattel ; and it lias been decided jurist,im. 
 that an annuity charged thereon, is also a chattel, 297. 9 bu. 
 
 ,,.... N. S. 332. 
 
 and not a chose in action. 3 ci. ^ Fin. 
 
 457. ^Russ. 1. 
 8 Sim. 643. 
 
 A second mortgagee, without notice of the 
 first mortgage, by obtaining an assignment of 
 a judgment prior to the first mortgage, will be 
 allowed to unite, or, what is termed tack, his 
 mortgage to the judgment ; and by that means 
 recover the amount of the judgment debt, in 
 addition to his mortaag-e money, before the 1 vem. i87. 
 
 ° ° "^ 2 lb. 30. 279. 
 
 second mortgagee can recover any thing.] 2 cm. Dig. 
 
 170, &c., ed. 4.
 
 '240 
 
 CHAP. XX. 
 
 OF USES AND TRUSTS. 
 
 2Bi.Com 327. It IS uecessarv to the creation of such an use 
 
 Butl. n. ( 1 ) to '' 
 
 Co.Li(i.27i,h. as mav be executed by the statute,* that there 
 
 (1) to290, b 
 384, a and 
 add. notes. 
 
 * This statute enacts, " That where any person shall be 
 seised of any lands, rent, services, reversions, or other here- 
 ditaments, to the use, confidence, or trust of any other per- 
 son or body politic, by any means whatsoever, every such 
 person and body politic, having such use, confidence, or 
 trust, shall henceforth be deemed and adjudged to be in 
 lawful seisin, estate, and possession of and in the same 
 lands, &c., with their appurtenances, to all intents and pur- 
 poses in the law of and in such like estates as they had in 
 use, trust, or confidence ; and that the estate, title, right 
 and possession of the person seised of any lands, &c. to the 
 use, confidence, or trust of any such person, or of any body 
 politic, shall be deemed and adjudged to be in him or them 
 that have such use, confidence, or trust, after such quality, 
 manner, form, and condition as they had before in or to the 
 use, confidence, or trust that was in them." 27 H. 8, c. 10, 
 1536. 
 
 Before the passing of this statute, the use was cognizable 
 in a Court of equity only, and was in fact what a trust is 
 now. Thus, under a feoffment to A. to the use of jB., B. 
 had not a legal estate ; that is, an estate which he could sue 
 upon, in a Court of law : he had merely a confidence in y/. 
 to pay over the rents and profits to him B., which if ^.
 
 OF rSES AND Tlil STS. 241 
 
 be a person to stand seised of certain hered'ita- Booth\ o,i;,i. 
 
 at the end of 
 
 ments to such an use; that there be a person Touchst. nmWn 
 
 1 Coll. Jnrid. 
 
 . . . -241. 
 
 Sand. U-'<es, 
 
 failed to do, B.'s remedy was by suit in equity, not by action yasnim. 
 at law. Hence, J.'s estate was called the legal, and B.^s the 
 equitable estate. [The effect of the above statute was, to 
 transfer to B. so much of the legal estate of ^. as was com- 
 mensurate with the use limited to -B.] 
 
 From the words of this statute it will be perceived, that it 
 relates to hereditaments, and not to chattels ; that it applies Vide in pa, 
 only where one person is seised to the use oj" another person, P" 
 and not where one person is seised to the use of himself; 
 and, thirdly, that the cestui que use now takes the legal 
 estate; [and he takes that estate to the extent of the use 
 limited to him, provided there be a seisin co-extensive with 
 that use.] Therefore, if a conveyance be made to J., his 
 heirs and assigns, to the use of B. in tail, B. will take an 
 estate tail, and not an estate in fee ; the residue of the use 
 in fee, that is, the reversion expectant on the estate tail, will 
 result to the grantor, who will be in of his former estate ; 
 so that, if he derived that estate from his mother, it will 
 still continue descendible to his heirs ex parte materna : but 
 if, by a deed executed after the 31st day of December, 1833, 
 the ultimate use were limited to the grantor and his heirs, or 
 to the right heirs of the grantor, he will acquire a new estate 
 by purchase, and will not be in of his former estate as he 
 would where the ultimate use undisposed of results to him ; 
 statute 3^4 TV. 4, c. 106, s..3. The seisin must be com- 
 mensurate with the use. Thus, if a conveyance be made to 
 y/. generally, which will give him an estate for life only, to 
 the use of B. in fee, B. will take but an estate for the life of 
 A., for want of a seisin to support any further interest. 
 Bac. Uses, 47. Cro. Car. 231. 3 Bulst. 184. It some- 
 times occurs in practice that a conveyance is made to A. r>. 
 and C. D., and the survivor of them, and the heirs of such 
 
 R
 
 242 OF USES AND TRUSTS. 
 
 capable of taking that iise ; and that there be 
 prwity of estate 'dx\A privity of person. 
 
 survivor, to uses limiting the estate in strict settlement. In 
 this case, the remainder to the survivor of A. B. and C. D. 
 is a contingent remainder ; and, until the death of one of 
 them, there is no actual vested seisin to serve the uses. 
 This is inconvenient, and should be carefully avoided. 
 
 Much doubt was formerly entertained, w^hether the Statute 
 of Uses could apply to wills, which did not exist in the shape 
 they do now, at the time the Statute of Uses was passed. 
 The mention of wills in the Statute of Uses referred only to 
 the customary wills then in existence, and not to those 
 which were introduced a few years afterwards by the Statute 
 of Wills. Lord Coke says, "It is frequent in our books, that 
 an act made of late times shall be taken within the equity ol' 
 an act made long before." 4 Rep. 4 a. b. And in Broughton 
 V. Langley, 2 Lord Itaym. 873. 2 Salk. 679, it was admitted 
 that a devise of lands may by express words be limited to 
 the use of some person other than the devisee, and that such 
 devise will be executed by the Statute of Uses ; and in 
 Thompson v. Laioley, 2 Bos. 8f Pull. 311, the same doc- 
 trine was expressly acknowledged. But there is not any 
 necessity for a seisi?i to supply the use in a will ; and there- 
 fore if the devisee to a use die in the lifetime of the testator, 
 it should seem that the use will not lapse, because it would 
 be as good without that previous seisin as with it ; and the 
 Courts will overlook a devise which in event proves to be 
 a mere nullity. 3 Jfk. 408. 3 Bro. C. C. 30. But if there 
 be a devise to one person to the use of another, and the 
 cestui que use or beneficial devisee dies in the lifetime of the 
 testator, then it is conceived that the devisee himself will 
 not be entitled to the estate discharged of the use ; for the 
 testator has shown a clear intention that the beneficial 
 interest should not rest with him, by directing it over to 
 another person.
 
 OF USES AND TRUSTS. 24.'J 
 
 1st, There must be a person seised ; for a cor- 
 poration cannot stand seised to an use ; and, 
 therefore, if a corj)oration conveyed, [before the 
 7^8 Vict. c. 76 Jit must have been by feoffment, sand. aag. 
 lease (with an actual entry) and release, &c. ; 
 though the Courts would, if possible, support a 
 bargain and sale by a corporation as some other [See the chap- 
 
 . ter on Curpo- 
 
 species of conveyance, rather than that it should rations jnfm.] 
 avoid its own act.* [But now by the above statute 
 the lease for a year is dispensed with]. 
 
 2ndly, There must be a person seised of here- 
 ditaments ; for chattels, whether real or personal, 
 are not within the statute : though a person may 
 stand seised of the freehold to the use of another 
 for a chattel interest; as A. B., being seised in 
 fee, may covenant to stand seised to the use of 
 C. D. for years ; and such use will be executed 
 by the statute. And this was every day seen by 
 the lease, or more properly by the bargain and 
 sale, upon which a release was grounded. But 
 chattel interests may be conveyed subject to 
 certain trusts, as commonly practised-! 
 
 * If an alien be enfeoffed to uses, the statute executes the 
 uses [limited on his seisin] until office found ; but upon 
 inquisition the uses are destroyed by relation, and the king 
 holds absolutely. Bac. 59. King v. Boi/s, 3 Di/er, 283, b. 
 pi. 31. So if a person, having committed treason, be made 
 grantee to uses, the use will fail for the benefit of the crown, 
 if the grantee be afterwards attainted. ThrogmortorCs case, 
 Moor, 390, 391 ; [but see stat. 4 ^ 5 ^. 4, c. 23, s. 3.] 
 
 f It is generally understood that copyhold lands are not 
 R 2
 
 '244 OF USES AND TRl.STS. 
 
 within the Statute of Uses, and consequently that a power to 
 revoke uses once vested cannot be reserved in a surrender of 
 that species of property as it can in a conveyance to uses of 
 freehold, 1 IFatk. Cop. [IDS.] 265. A late case, however, 
 has deranged this generally acknowledged doctrine. By mar- 
 riage settlement freehold lands were conveyed to the use of 
 the husband for life, with remainder to the wife for life, with 
 remainder to trustees to preserve contingent remainders : with 
 remainder to the children of the marriage, with remainders 
 over. . Then followed a provision, that it should be lawful for 
 the trustees, with the consent of the intended husband and 
 wife, to dispose of and convey, either by sale or exchange, the 
 freehold property in question ; and that, for the purpose of 
 eiFecting such sale or exchange, they, with the consent of the 
 husband and wife, should be at liberty to revoke the before- 
 mentioned uses, and to appoint others in favour of the person 
 with whom the sale or exchange might be effected. The 
 deed then contained a covenant to surrender copyhcld pre- 
 mises, the subject in question, to the trustees of the settlement 
 and their heirs, to hold to the same uses and subject to the 
 same powers as were before declared concerning the freehold 
 property. The marriage took effect, and the copyhold pre- 
 mises were surrendered to the uses and subject to the 
 provisions in the indenture of settlement mentioned, and the 
 husband, pursuant thereto, was admitted to the copyhold 
 premises as tenant for life. In 1805, the trustees contracted 
 to sell these freehold and copyhold estates to Boddinffton in 
 fee, and for that purpose they, with the consent of the husband 
 and wife, revoked all the uses declared by the said marriage 
 settlement, and limited a fresh and substituted use to Bod- 
 dington in fee, and the husband surrendered the premises to 
 the trustees, who were admitted, and they afterwards at the 
 same Court surrendered to the use of Boddington, his heirs 
 and assigns; and Boddington was thereupon admitted as 
 tenant in fee according to the custom of the manor. Bod- 
 dington now sold to Abernethy, who objected to the title. 
 On a bill for specific performance, a case was directed for the
 
 OF USES AND TRUSTS. 
 
 3rclly, There must be a person capable of re- 
 ceiving the use ;* and, therefore, a limitation 
 
 opinion of the Judges of the King's Bench, on the question, 
 Whether Boddington was seised of the copyhold premises in 
 fee ? The Court of King's Bench took time to consider, and 
 afterwards sent the following certificate :-^" This case has 
 been argued before us by counsel ; we have considered it, 
 and are of opinion that the \>\amiiS (^Boddington) has an estate 
 in fee simple at the will of the lord, according to the custom 
 of the manor, in the said copyhold messuages and heredita- 
 ments with the appurtenances." Boddington v. Abernethy, 
 5 Barn. ^- Cress. 776, S. C:. 8 Dow. ^ Ryl. 626. [See also 
 Rex V. Lord of the Manor of Oundle, 1 Ad. ^ Ell. 283.] 
 
 * It is not essential that such person be in esse, but there 
 must be a probability, or at least a possibility, of his coming 
 into being within the time prescribed by the rule against 
 perpetuities. Hence contingent uses are within the statute, 
 and give legal interests of like quality to the use. 1 Sug. Potv. 
 17, 26, ed. 6. Bac. Uses, 51, 92. Roices ed. 131. 
 
 [The student may be here reminded, that the person 
 capable of receiving the use under the statute must be some 
 other person than the feoffee, releasee, grantee, &c. to whom 
 the seisin is transferred : thus, a feeoffmeut, release, or grant 
 to A. and his heirs, to the use of A. and his heirs, does not give 
 to A. the tcse or legal estate under the statute, but he takes it 
 !)y common laio ; the statute not being brought into operation, 
 because ofie person is not seised to the use of another ; but if 
 the feoffment, &c. were to A. and his heirs, to the use of B. 
 and his heirs, B. takes a use under the statute : so, if A. 
 bargain and sell, or covenant to stand seised to the use of B. 
 and his heirs B. takes a use under the statute ; in the two 
 latter instances, the seisin is not transferred, but remains in 
 the bargainor and covenantor. Doe v. Passingham, 6 Barn. 
 &■ Cress. 305 ; and see Mr. Butler s valuable note to Co. Litt. 
 271, b. note 231, s. 3.] 
 
 •245
 
 246 OF USES AND TJIUSTS. 
 
 to the use of a corporation would not be good 
 without licence, as it would be within the Statutes 
 of Mortmain. 
 
 4thly, There must be privity of estate; for 
 he wlio comes in, in the post, or paramount the 
 person limiting, shall not be subject to it.* 
 
 * Prior to the Statute of Uses (27 H. 8, c. 10) the mode 
 of evading the common law restraints on testamentary dispo- 
 sition (the Statute of Wills not being enacted till the 32d 
 year of the same reign) was by making a feoffment to A. his 
 heirs and assigns, to such uses as the feoffor should appoint. 
 The appointment usually contained a power of revocation, 
 -when it did not confer an immediate interest, so that the 
 jiower was in fact kept open till the appointor's death. In 
 efiect, this mode of evading the common law was equivalent 
 to the will of the present day, and was generally used in the 
 same manner, and for the same purposes. With reference to 
 the text, if A. the feoffee died without heirs, the legal estate 
 iti him escheated to the lord of the manor whereof the lands 
 were holden ; and all lands, whether freehold or copyhold, 
 were then, as well as now, holden of some manor. As 
 between the lord and the cestui que use there was neither 
 privity of estate nor person ; it was on the seisin of A. 
 and his heirs that the use was raised ; that seisin having 
 failed, the use fell to the ground. The heirs and assigns of 
 the feoffee came in, in the j^er, that is by or through him, and 
 \V() IJit.27(),h. were bound by the privity and confidence which subsisted 
 Jjiii/. 11. (I), between their ancestor and the cestui que use; but the lord 
 
 «. 2. J ■" 
 
 by escheat came in, by title paramount, and was, therefore, 
 said to claim in the post, that is, beyond or without such 
 privity, and he consequently held discharged of the use and 
 confidence which he never agreed to. But now the seisin 
 and use, the moment they are created, are instantly united
 
 OF USES AND TRUSTS. 247 
 
 •Stilly, There must be a privity ofper'son; for a F<^arne, -624, 
 purchaser without notice shall not hold charged.* 
 
 There cannot be a?i use upon an use. If an 
 estate be limited to A. B. and his heirs to the use 
 of C. D. and his heirs, to the use of E. F. and his 
 heirs, the statute shall execute only the first use, 
 or that to C. Z)., and the limitation to JE. F. will 
 be only a truM in equity. f 
 
 by the operation of the Statute of Uses, and therefore the 
 requisition in the text is at this day merely nominal. 
 
 * That is, a purchaser for valuable consideration. A 
 volunteer without notice of the use, and a purchaser for value 
 with actual notice of it, were equally bound to render the 
 profits of the land to the cestui que use, and to convey as he 
 should appoint ; but since the statute this distinction as 
 to uses is almost nugatory. As to trusts, which at present 
 occupy the exact situation of uses formerly, this and the 
 preceding rule are applicable. 
 
 f If the limitation to E. F. and his heirs be intended as a 
 trust, it would be prudent to give the estate to A. B. and his 
 heirs, to the use of C. 7). and his heirs, in trust for ^ F. and 
 his heirs ; for if it be given to J. B. and his heirs, to the use 
 of himself (^A. B.) and his heirs, to the use of, or in trust for 
 E. F. and his heirs, it might be open to the objection, that 
 A. B. would be iu, by the common late ; and so the limitation 
 of the use to him and his heirs be nugatory ; and that, con- 
 sequently, the limitation to E. F. would iu such case be, in 
 fact, the first use, and executable by the statute ; and, conse- 
 quently, that E. F. would take the legal estate to him and 
 his heirs. — Note by Mr. Watkins. 
 
 [The case of Doe v. Passingham, 6 Barn. Sf Cress. 305, 
 settles the question raised in the preceding note. In that 
 case an estate upon the marriage of A. and B. was conveyed
 
 "248 OF USliS AND TRUSTS. 
 
 2 Bi. Corn. 326. Upoii this principle, however absurd in itself, 
 many important doctrines are founded. Hence, 
 if it be wished that a person shall have only a 
 trust estate, care should be taken to limit a pre- 
 ceding, and at least commensurate, use, so as to 
 be executed by the statute ; as, " to ^. B. and his 
 heirs, to the use of him aud his heirs during the 
 life of C. D. in trust for C. Z)., and from and after 
 the decease of the said C. D. to the use of the 
 heirs of the body of the said C. D. :" when C. D. 
 would take a trust or equitable estate only ; and 
 the remainder to the heirs of his body would be 
 
 to C. and D. and their heirs, to the use of C. and D. and 
 their heirs, upon trust nevertheless, and subject to the 
 several uses, &c., after mentioned ; namely (after the mar- 
 riage), to the use of A. and B. and to the survivor for their 
 lives, remainder to the use of two other trustees, for 1000 
 years, for raising portions, remainder to the use of the first 
 and other sons of the marriage successively in tail male : 
 remainder to the use of the daughters, 8ec., remainder to the 
 use o^ A. and his heirs: there was no limitation to trustees 
 to preserve. The question was, whether the trustees took 
 the legal estate. It was contended, that the first use to the 
 trustees was absorbed and extinguished in their seisin, and 
 hiid, therefore, no effect in preventing the operation of the 
 statute upon the second set of uses ; but the Court of K. B. 
 decided that the trustees took the legal estate by the common 
 law, and that the subsequent limitations were all trusts. The 
 ignorant penning of the settlement was thought to leave 
 the intention of the parties doubtful ; but upon this point 
 Hnlroyd, J., observed, " that even if it were intended that 
 the deed should operate in a different mode from that 
 pointed out by the law, when the legal estate is given to the 
 trustees, that intention cannot countervail the law.]
 
 OF I'SliS AND TRUSTS. 
 
 a proper use, executed by the statute tlje moment 
 he died. And the estate to him being equitable, 
 and that to his heirs legal, could not unite ; and 
 so the latter would not be barrable by him. 
 
 Hence, also, a use cannot be limited on a bar- 
 gain and sale to any but the bargainee; for, till 
 inrolment, the bargainee himself has but a use, 
 and he can not be seised of an use to the use of 
 another person ;* and the limitation over would 
 be a trust ; and so as to a covenant to stand seised. 
 If, therefore, it be intended that a third person 
 should take an use executable by the statute, some 
 other species of conveyance (as a feoffment, or 
 lease and release) should be had recourse to. 
 
 * If a will were made between the date of a bargain and 
 sale, conveying the property to the testator, and the inrol- 
 ment of that bargain and sale, a question has arisen whether 
 the testator could be said to be seised of the estate at the date 
 of his will, if he died before inrolment, supposing inrolment 
 to be made within due time after the execution of the bargain 
 and sale, BeUi7igham. v. JIsop, Cro. Jac. 52. ■ Flower v. 
 Baldwin, Cro. Car. 218. Iseham v. Morrice, Cro. Car. 110. 
 
 However, it is considered clear from other adjudications, 
 and particularly from DimocJi's case, Hob. case, 182, that 
 where the heir of the bargainee was adjudged entitled to lands 
 conveyed to his ancestor by bargain and sale, inrolled after 
 the ancestor's death, that the devisee was entitled to lands 
 under a will made in the interval between the date of the 
 bargain and sale and its inrolment ; for that the estate vests 
 presently by the Statute of Uses, and not by the Statute of 
 Inrolments, except where the bargain and sale was made by 
 commissioners of bankrupt: in that instance nothing passed 
 till inrolment. Bennet \. Gandy, Cartli. 178. 
 
 249
 
 250 OF USES AND TRUSTS. 
 
 [By the statute 7^8 Vict. c. 76, s. 2, it is 
 enacted, tiiat every person mat/ convey by any 
 deed without livery of seisin, or inrolment, or a 
 prior lease, all such freehold land as he might 
 before the passing of the act have conveyed by 
 lease and release ; and every such conveyance 
 shall take effect as if it liad been made by lease 
 and release : provided that every such deed shall 
 be chargeable with the same stamp, as would 
 have been chargeable, if such conveyance had 
 been made by lease and release.*] 
 
 [* The very general language of this clause, coupled with 
 its want of precision, has suggested the question, whether 
 the Legislature by it, intended to assimilate the operation 
 of every form of conveyance of freehold estate ; and conse- 
 quently whether a deed in the form of a bargain and sale, 
 or a covenant to stand seised, (taking effect as if it had 
 been made by lease and release), would operate by trans- 
 mutation of seisin ; whether in fact the use, under those 
 forms of conveyance, may be limited to any but the bar- 
 gainee or covenantee. The probable conclusion is, that the 
 Legislature did not intend to interfere with the technical 
 construction of any of the various forms of conveyance then 
 employed, but merely to authorize a conveyance under the 
 a(;t, without the accompaniments of livery of seisin, inrol- 
 ment, or lease for a year, and to have the effect of a lease 
 and release, leaving unaffected the technical operation of all 
 other deeds relating to real property, not within the act. 
 If this be the true construction of the clause, a deed intended 
 to operate as a bargain and sale, with inrolment, and the 
 covenant to stand seised, will have the same technical 
 operation, as instruments not operating by transmutation of 
 seisin, as they had before the act came into operation : but 
 it is probable that this enactment will practically have the
 
 OF USES AND TRUSTS. 251 
 
 An use need not take eflfect immediately on the 
 creation of the deed, like an estate of freehold. 
 It may commence in futuro ; for the freehold 
 remains in the [grantor], covenantor, or bar- 
 gainor, who is to answer to the prcecipe of others, 
 and perform the feudal duties. But the contin- 
 gency [or event] upon which the use is to arise 
 must be such as may happen within a reasonable 
 period, as a life or lives in being, or twenty-one 
 years afterwards ;* and uses so limited are called 
 contingent or springing uses, which [previously to 
 the 7 (^ 8 Vict. c. 76, 5. 7, 8, might have been] 
 destroyed or defeated h?/ destroying the estate out 
 of ivhich they are to spring. "] 
 
 effect of assimilating the forms of all conveyances of real 
 estate : vide infra, ch. Feoffment and Bargain and Sale.'\ 
 
 * Except where the future use is to take effect after an Fearne, 443. 
 estate tail, as then no danger of a perpetuity will accrue — the 
 tenant in tail having power to bar the estate tail and all 
 remainders future and springing uses dependent thereupon : 
 vide supra, pp. 212, and 213, note. 
 
 f As if a person, in consideration of an intended marriage, 
 covenant to stand seised to the use of himself and his in- 
 tended wife for life, with remainder to the first and other 
 sons of the marriage in tail, and before the solemnization of 
 the marriage makes a feoffment in fee or a lease for life, 
 upon a valuable consideration, to a person who has no notice 
 of the covenant, the uses to arise upon the marriage will be 
 destroyed, because the seisin to feed them has been swept 
 away by the feoffment. 2 Sidf. 64. 2 Bolt. Abr. 796. Cro. 
 Jac. 168. But this doctrine is now principally applicable to 
 covenants to stand seised, and uses arising under powers, 
 which are clearly not exercisable, if the privity between the 
 seisin and the use be destroyed by disseisin. This subject 
 involves much technical learning connected with the unsettled
 
 252 OF USES AND TRUSTS. 
 
 See as to shift- All use mav also be limited so as to change 
 
 ing the second 
 
 estate on the after executio?i, to another person ; as to the use 
 
 family estate, of B. foi* life, reiTiai ticler to his first and other sons 
 
 Bull. n. to 
 
 Co. Liu. 327, a. 
 
 doctrine of scintilla juris, and is treated of in 2 Cru. Dig. 
 259, &c. 276, 305, 4th ed. 1 Sand. Uses, 146, 4th ed. 
 Cornish, Uses, 135. 
 
 [A springing use is not necessarily contingent ; it may 
 arise upon a future event, either certain or contingent.] 
 Thus, under a conveyance to A. and his heirs, to the use of 
 B. and his heirs from and after next Michaehnas, the use to 
 
 B. is future and springing, but it is not contingent. Till 
 next Michaelmas the use results to the grantor — on the 
 arrival of the time it shifts to B. But if the conveyance 
 had been to A. and his heirs, to the use of B. and his heirs 
 from and after next Michaelmas, provided B. be then living, 
 this is a contingent springing use. 
 
 Contingent uses also engender the doctrine of scintilla 
 juris, as above hinted, which may be shortly explained thus: — 
 Suppose a feoffment be made to A. in fee, to the use of B. 
 during his life, with remainder to the use of his sons (unborn) 
 successively in tail ; and for want of such issue to the use of 
 
 C. in fee. The remainders to the sons are contingent uses, 
 and are therefore unexecuted ; yet, being in truth nonentities, 
 they do not impede the vesting and execution of the ultimate 
 use in C. [Some authorities favour the hypothesis, that as 
 there is a possibility of the intermediate contingent use 
 arising, so the feoffee, releasee, &c. must have a corresponding 
 possibility of seisin, to serve the contingent use when it arises. 
 1 Co. Rep. 120. 0. Bridg. 382. 1 Sand. Uses, 101. The 
 editor considers that Sir Edw. Sugden, in his Treatise on 
 Powers, ch. 1, s. 3, successfully combats this hypothesis ; 
 and he conceives that the true construction of the Statute of 
 Uses, and that which corresponds with the practice of the 
 Profession, is this, that there is no necessity for a continued 
 seisin in the feoffees, See, in order that there may be in 
 existence, at the moment the contingent use i.s t-j arise, a
 
 OF USES AND TRUiiTS. 253 
 
 in tai], remainder in fee; provided that if there 
 be no issue living at the death of B. then to the 
 right heirs of C. for ever. And this is called a 
 shifting or secondary use ; but like the latter it 
 must take effect, if at all, within a life or lives in 
 being or one and twenty years afterwards. 
 
 If such shifting use be limited on an estate in 
 fee, it cannot he destroyed or barred by the previous 
 taker ; but if on a limitation in tail, it may. 
 
 And so with respect to trusts: some are com- Fearne,\^9, 
 
 . J40. 
 
 pletely established, and so as to take effect imme- 
 diatel}^, by the very deed which conveys the legal 
 estate to the trustee ; and are, therefore, fre- 
 quently called trusts executed : while others are to 
 be carried into execution by some future act to be 
 done by the trustee ; and these are often denomi- 
 nated Xrusts executoiy. Trusts of the ^rsif descrip- 
 tion, have the same construction as legal estates; 
 while those of the latter, are carried into execution supra p.i44,n. 
 so as best to answer the intention of the person 
 creating them* 
 
 seisin to serve or supply that use ; but, on the contrary, that 
 the original seisin in the feoffees, &c. being commensurate 
 with the whole fee, was sufficient upon the execution of the 
 feoffment, release, &c. to give complete effect to all the 
 limitations, as well to those which are future as to those 
 which are immediately executed ; thus drawing out of the 
 feoffees, &c. the entire seisin, and at once giving legal efficacy 
 to the whole series of limitations.] 
 
 * Of this character are covenants to assign or surrender
 
 254 OF USES AND TRUSTS. 
 
 When an use is wholly or partially undisposed 
 of, it shall result to the grantor. 
 
 leasehold or copyhold lands to certain trustees, upon trusts 
 to correspond with uses previously limited of freehold estates. 
 But an assignment or surrender actually made to trustees 
 upon trusts to correspond with uses of freehold property 
 would, it is apprehended, confer trusts executed. The dis- 
 tinction between trusts executed and trusts executory is, that 
 the former cannot afterwards be varied lay the interference 
 of a Court of equity ; whereas, trusts executory are liable to be 
 altered or modified by a Court of equity, whenever they do 
 not technically carry into execution the presumed object of 
 the parties. On this ground, all covenants to surrender copy- 
 hold estates on trusts must be considered executory, and 
 liable to be moulded or remodelled, according to the nature 
 of the transaction and the manifest intention. Indeed, all 
 covenants participate very deeply in this executory character. 
 " At law, a covenant must be strictly and literally performed ; 
 in equity, it must be really and substantially performed, 
 according to the true intent and meaning of the parties, as 
 far as circumstance will admit." 3 Ves. 692. 
 
 In the Duke of Neivcastle v. Lincoln, 3 Ves. 387, a convey- 
 ance of freehold estates was made in consideration of marriage, 
 to uses in strict settlement, with a covenant to assign lease- 
 hold estates to trustees, " in trust for such person or persons, 
 and for such other the like ends, intents, and purposes as were 
 thereinbefore mentioned of and concerning the said freehold 
 messuages, &c., as far as the law would in that case permit." 
 Lord Rosslyn thought that the settlement should be so framed 
 that no person, being tenant in tail by purchase, should become 
 entitled to a vested interest in the leasehold estate, until he 
 attained twenty-one, or died under that age, leaving issue 
 inheritable to the entail, 3 Ves. 387. On appeal, the Lord 
 Chancellor observed, that a Court of equity would give a con- 
 struction to an executory covenant of this kind, agreeably to
 
 OF USES AND TRUSTS. 255 
 
 The cestui que trust may tiansfer his interest ngott, i04. 
 over to a stranger; and ir such cestui que trust 214. 3 Fes. 
 
 ]'20. 5 Cru. 
 7)?>.384,ed. 4. 
 
 what would have been the direction of a conveyancer consulted 
 by the party : and, alluding to the distinction between trusts 
 executed and executory, his Lordship added, that if the party 
 would be his own conveyancer, and create the estate, the Court 
 had no jurisdiction to alter that estate so created by the party 
 himself: but, upon such a covenant as this, the Court had 
 jurisdiction to execute the intention when it could see it : 
 citing Gower v. Grosvenor, Barn, Ch. Ca. 54. 12 Ves. 218. 
 See also 1 Jac. 8f W. 570. 1 Sand. Uses, 310, 4th ed. 
 2 Watk. Cop. 307, 313. 
 
 In the case of articles of agreement made in contemplation 
 of marriage, and which are, consequently, preparatory to a 
 settlement, and in the case of wills which are merely directory 
 of a subsequent conveyance, the trusts declared by them are 
 said to be executory, because they require an ulterior act to 
 raise and perfect them. They are rather considered as 
 instructio7is for settlements than as instruments complete in 
 themselves ; and the Court of Chancery, in order to promote 
 the presumed views of the parties in the one case, and to 
 support the manifest intention of the testator in the other, will 
 attach to the words expressive of the trusts, a more liberal and 
 enlarged construction than it would do if the words were 
 contained in a limitation of a legal estate or a trust executed. 
 1 Sand. Uses, 310, 4th ed. Thus, in Jervoise v. the Duke of 
 Northumberland, 1 Jac. ^ W. 570, the Lord Chancellor 
 observed, that where there is an executory trust, as, for 
 example, where a testator has directed something to be done, 
 and has not himself, according to the sense in which the Court 
 uses these words, completed the devise in question, the Court 
 of Chancery has been in the habit of looking to see what was 
 his intention ; and, if what he has done amounts to an imper- 
 fection, the Court will mould what remains to be done, so as 
 to carry the intention into execution. His Lordship con-
 
 256 OF USES AST) TRUSTS. 
 
 were tenant in tail in possession, he [might, pre- 
 viously to the statutes abolishing fines and re- 
 coveries,] even suffer a common recovery^ though 
 there were no legal tenant to the prcecipe ; so he 
 might levy a fine.* [Now by a deed of disposi- 
 
 tinues : — There is a good deal of confusion in the expressions 
 "trusts executory" SiVid "trusts executed." The latter, no 
 doubt, in one sense of the word, is a trust executory ; that is, 
 if A. B. is a trustee for C. D., that is a trust executory in this 
 sense, that C. D. may call upon A. B. to make a conveyance 
 and execute the trust : but in cases like the above, the testator 
 has clearly decided what the trust is to be, and the trust is 
 then said to be executed ; and where a trust is executed, the 
 Court of Chancery follows the law. i Jac. S) PF. 570. Upon 
 the subject of the preceding note, see Rop. Leg. vol. ii. 455, 
 ed. 1828. 
 
 * If an estate were conveyed unto and to the use of ^. and 
 his heirs, in trust for B. in tail, with remainder over, B [might 
 previously to the above acts] suffer an equitable recovery 
 without ^.'5 concurrence, and thus acquire the equitable estate 
 in fee. He might then call upon A. for a conveyance of the 
 legal estate, and thereby extinguish the equitable in the legal 
 ownership, of which he would then become seised in fee simple. 
 Ca. temp. Talb. 164, 167. [In the case above supposed, B. 
 may now by a deed of disposition in conformity with those 
 acts acquire the absolute fee without the concurrence of A., 
 who is a bare trustee, and therefore not protector by s. 27, of 
 the statute 3 4" 4 W. 4^, c. 74, nor within the exception of 
 «. 31. The corresponding sections in the Irish act, 4^-5 W. 
 4, c. 92, are the 25th and 29th.] On the other hand, if a 
 trustee, who had the legal estate in fee in trust for a married 
 woman and her heirs, made his will, and devised this legal 
 estate to his eldest son in tail, with remainders over, a recovery 
 must have been suffered by the son before the feme covert or
 
 OP USES AND TIUJSTS. 257 
 
 tion in conformity with those statutes, he may 
 bar an equitable estate tail in the same manner 
 as if it were legal.] 
 
 In certain cases the cestui que trust may call in Feame, c. r. 
 
 \ •> 3;33. 1 Sand. 
 
 the legal estate, and, by a bill in equity, oblige 37i,ed, 4. 
 the trustees to convey. 
 
 In some cases it is proper to keep the legal . 
 estate outstanding, in order to guard against 
 mesne incumbrances, &;c. This is usual with 
 respect to terras of years, wliich should gene- 
 rally be kept on foot for the security of the pur- 
 chaser ; and in such cases, carefully assigned to 
 a person of his own nomination in trust to attend 
 the freehold or inheritance,* it being a rule 
 
 her husband could obtain the dominion over the legal fee. It 
 was not necessary, till a comparatively recent period, to suffer 
 a recovery of an equitable estate tail. 1 P. Wms. 91,2 Vern. 
 552. See also 2 Ch. Ca. 63, 78, and 1 Fonb. Tn Eq. 303, 
 5th ed. Before that period the equitable tenant in tail might 
 have obtained a conveyance of the legal estate from the 
 trustee, which, absorbing the equitable estate, was considered 
 as destroying the estate tail. But subsequently a recovery 
 was indispensably requisite. 1 Bro. C. C. 70. 1 Vern. 13. 
 2 Vern. 132. Amb. 518. 3 Ves. 120. 16 Ves. 224. 2 
 Meriv. 358. Merest v. James, Mad. Sr Geld. 118, et infra, 
 Ch. Rec. 
 
 * See ante, Ch. Terms for Years, pp. 50, 54, for observa- 
 tions on this head. It has lately been decided, that the 
 person who has the best right to call for an assignment of the 
 legal estate, obtains no priority by that right, unless he pro- 
 
 S
 
 258 OF USES AND TRUSTS. 
 
 that, where there is equal equity, he who has the 
 legal estate shall prevail.* 
 
 cures an actual assigament of the term. Frere v. Moor, 8 
 Price, 475. 
 
 * As if there are several mortgages on one estate, the 
 last mortgagee having lent his money upon a valuable con- 
 sideration without notice, may, by purchasing the preceding 
 incumbrance which carries with it the legal estate, protect 
 himself against any mortgage subsequent to the first, and 
 prior to the last ; for, by purchasing the first mortgage, he 
 obtains the legal estate, and he had equal equity with the 
 mesne incumbrancer by having lent his money without notice 
 of his charge ; and notice of the mesne incumbrance at the 
 time of buying in the first mortgage will not vary the case. 
 Bovey V. Skipwith, 1 Ch. Ca. 201. Churchil v. Grove, 
 ibid. 35. 1 Vern. 187, 188. 2 Ves. 573. Ilagshaw v. 
 Votes, Stra. 240. But the possession of the legal estate will 
 not make up for the want of equal equity, and notice of 
 a prior charge at the time of the subsequent advance will 
 make the equities of two incumbrances unequal. "Where 
 a person advances money on an estate which he knows to be 
 already incumbered, he in effect acknowledges that he will 
 claim subordinately to the person who has the prior charge ; 
 and therefore it may be laid down as a general rule, that 
 if the subsequent incumbrancer have notice of the preceding 
 incumbrance before he becomes possessed of his own security, 
 nothing he can do will help him Vide 2 Ves. 485, 684. 
 [See 2 Cru. Dig. Ch. V. ed. 1835.] 
 
 A case lately occurred, where a conveyance had been made 
 to A. B. to uses to bar dower. A. B., on his second marriage, 
 appointed and released the estate to the use of himself for 
 life, with remainder to the use intent and purpose that his 
 intended wife might thereout receive and take an annuity of 
 1500/. a-year, if she should survive the said A. B., and subject 
 thereto, to the use of the said A. B. in fee, but with power for
 
 OF USKS AND TJUISTS. •259 
 
 If a trust and leual estate unite in the same ^otk.onDesc 
 
 ® 191. Bnjdges 
 
 person, the former, generally speaking, becomes v. Bridges, 
 merged or extinguished. Merest w. 
 
 James, 1 Mad, 
 §• Geld. Rep. 
 
 118. [6 CrK. 
 
 Dig. p. 496, 
 the wife, notwithstanding her coverture, to levy and raise the ^^' '*1 
 sum of 2000A out of the estate for the use of the children of 
 the intended marriage, and to appoint any term of years 
 therein to any person for better raising the same as she should 
 think fit. On the solemnization of the marriage, the settle- 
 ment was handed over to the wife, who kept it in her own 
 bureau, but the husband retained the title deeds and the 
 conveyance to himself in fee. A year or two afterwards, the 
 husband borrowed a sum of 3000/. on the estate, which he 
 represented to be free from incumbrances. The mortgagee 
 had no notice of the settlement, and it was not necessary for" 
 him to inquire about the dower of the borrower's wife, as the 
 conveyance to him was to the common uses to bar dower. 
 Some time after, the husband became bankrupt, when the 
 mortgagee made his appearance and commenced an ejectment 
 for the recovery of the estate. After the bankruptcy, the 
 wife exercised her power of appointment, limiting the estate 
 to a trustee for a term of five hundred years, in trust by sale 
 or mortgage to raise the sum of 2000/. The term was 
 limited to commence the day after the marriage. The 
 mortgage was in fee. The husband being tenant for life, the 
 legal estate for his life clearly passed to the mortgagee. On 
 the husband's death, it was considered that at law the trustee 
 of the term would be entitled to recover in ejectment ; but in 
 equity, it was thought that the mortgagee, being in the 
 character of a purchaser for valuable consideration without 
 notice, would be entitled to an injunction to stay proceedings 
 against him at law, on the ground that the trustees of 
 the settlement had been guilty of negligence in permitting 
 the husband to retain the possession of the title deeds ; but 
 this opinion was given with some reservation, — the late case 
 
 S 2
 
 26*0 OF USF.S AND TRUSTS. 
 
 Ill conveyaijces creating trusts there should he 
 clauses enabling the trustees to deduct exjjenses ; 
 and sometimes an exjjress allowance should be 
 given them for their time and trouble ; that tliey 
 shall not he answerable for monies not actually 
 received by them, or for what shall be lost with- 
 out their fault.* It is frequently necessary also 
 
 o^ Harper v. Faulder, 4 Madd. 129, being taken to qualify 
 the general doctrine laid down in 2 Black. Com. 160, n. 
 respecting the degree of negligence necessary to postpone 
 a person for not taking the tide deeds. See also Strode v. 
 Blackbiirne, 3 Ves. 222. Martinez v. Cooper, 2 Russ. 198 ; 
 and 1 Paw. Mortg. 57, a, 472, n, 2 ib. 637. Coote Mortg. 511. 
 ed. 2. 
 
 [See 7 §- 8 r/c?. * Also, that their receipts should be good discharges; 
 
 "' ' ' ■'■ ■-' and that all persons paying them monies and taking such 
 receipts, should not be required to see to the application of 
 the money therein expressed to be received ; also, that it 
 shall be lawful for the trustees to invest any monies remain- 
 ing in their hands, not immediately applicable to any of the 
 purposes of the trust, in the funds, with power for them to 
 alter and vary the securities as they shall think fit, and a 
 provision for the change of trustees as occasion shall require. 
 The statute 1 W. 4, c. 60, consolidates and amends the 
 laws relating to conveyances and transfers of estates and 
 funds vested in trustees who are infants, idiots, lunatics, or 
 trustees of unsound mind, or who cannot be compelled, or 
 who refuse to act. 
 
 [The 8th sect, of the act authorizes the Court of Chancery 
 to appoint a person to convey in the place of a trustee, or of 
 the heir of a trustee out of its jurisdiction, or who is not 
 known ; and it was decided, that this section did not apply 
 to the heir of a mortgagee out of the jurisdiction. In Re 
 Vearden, 3 Myl. 8^ K. 508, or who is not known, In Re
 
 OF USES AND TKUSTS. 261 
 
 to give them power, either with or without con- 
 
 Goddard, 1 ib. 25. In Be Stanley, 5 Sim. 3:^0 : nor to a 
 devisee of a mortgagee refusing. Ex parte Payne, 6 Sim. 
 645 : nor to constructive trustees. In Re Dearden, ubi 
 supra. Upon the further construction of this clause see 
 Re Merry, 1 Myl. ^ K. 677. The statute 4 4-5 W. 4, c. 23 
 (27th June, 1834), assuming that mortgagees and the heirs 
 of mortgagees were included in the above section, provides 
 that where any person seised of any land upon any trust or 
 by way of mortgage dies without heir, the Court of Chancery 
 may appoint a person to convey such land, in like manner 
 as is provided by the 1 1 G. 4, and 1 W. 4, in case such 
 trustee or mortgagee had left an heir, and it was not known 
 who was such heir. In Ex parte TVhitton, 1 Keen, 278, 
 Lord Langdale, M. R., was of opinion that an unknown heir 
 of a mortgagee was within the meaning of the Sth sect, of 
 the 1 W. 4, c. 60, explained by the 4 Sf 5 W. 4, c. 23. The 
 statute 1^2 Vict. c. 69, was passed to remedy, in certain 
 cases, the doubts which had arisen, whether the preceding 
 statutes extended to them. The 14-2 Jlct. provides that 
 where any person, seised of any land by way of mortgage, 
 shall have died without having been in possession or in 
 receipt of the rents, and the mortgage money shall have 
 been or shall be paid to the executor or administrator, and 
 the devisee or heir or other real representative or any of the 
 devisees or heir or real representatives of such mortgagee 
 shall be out of the jurisdiction, or not amenable to the 
 process of tlie Court of Chancery, or it shall be uncertain, 
 where there were several devisees or representatives, who 
 were joint-tenants, which was the survivor, or whether any 
 such devisee heir or representative be living or dead, or, if 
 known to be dead, it shall not be known who was his heir, 
 or where such mortgagee or any such devisee or heir or 
 representative shall have died without heir, or shall neglect 
 or refuse to convey for 28 days after tender of a proper
 
 262 OF USES AND TRrSTS. 
 
 sent, to sell or exchange the lands, or transfer 
 stock, &c.'* 
 
 deed, then the Court of Chancery may direct a person, in 
 the place of such devisee heir or representative, whether 
 having a beneficial interest in the mortgage money or not, 
 to convey in the manner provided in the 1 W. 4, c. 60, 
 for the cases therein mentioned. By the 9th sect, of stat. 
 7^-8 Vict. c. 76, the executor or administrator of a mort- 
 gagee not in possession is empowered, on discharge of the 
 mortgage, to convey or surrender the legal estate vested in 
 the heir or devisee of such mortgagee, or in the heir devisee 
 or other assign of such heir or devisee.] 
 
 * It may be observed, that the investment of trust-money 
 on personal security, without an express provision empower- 
 ing that act, is a breach of trust. But it is established by 
 all the cases, that if the cestui que trust joins with the 
 trustees in that which is a breach of trust, knowing the cir- 
 cumstances, such a cestui que trust cannot afterwards com- 
 plain of the breach of trust ; and either concurrence in the 
 act, or acquiescence without original concurrence, will re- 
 lease the trustees : but that is only a general rule, and a 
 Court of equity will inquire into the circumstances which 
 induced concurrence or acquiescence ; recollecting, in the 
 conduct of that inquiry, how important it is, on the one 
 hand, to secure the property of the cestui que trust, and on 
 the other, not to deter men from undertaking trusts, from 
 the performance of which they seldom obtain either satis- 
 faction or gratitude. Walker v. Symonds, 3 Swajis. 58, 64. 
 [It may be useful to the student here to notice in what 
 cases a preceding declaration of uses may be controlled by 
 one subsequently made. In a feoffment, lease and release, 
 rSee Bales v. ^"^ gi'^nt, the declaration of the use is almost universally 
 Conn, A Sim. contained in the conveyance itself ; covenants to stand seised, 
 and bargains and sales, are necessarily declarations of the use. 
 But with respect to fines and recoveries the case is different ;
 
 OF USES AND TKUSTS. 2(i3 
 
 and upon tliese modes of assurance the question has frequently 
 arisen between preceding and subsequent declarations of the 
 use. Where a deed contained a covenant to levy a fine, the 
 uses were generally declared by that deed, which was called 
 a deed to lead the uses of the fine ; but where there was no 
 covenant, nor any agreement in a deed prior to the fine, of 
 course the declaration of the uses of the fine must have been 
 subsequent. With regard to recoveries, the declaration of 
 the uses was generally contained in the deed to make a tenant 
 to the prcecipe, which was then said to lead the uses of the 
 recovery ; but sometimes the uses were limited by a subse- 
 quent deed, which was called a deed to declare those uses. 
 
 The uses of a fine or recovery might have been varied, or 
 even absolutely revoked, before the fine was levied or recovery 
 suffered, by a deed of as high a nature as the preceding 
 declaration ; the fine or recovery being conformable in time, 
 persons, and other circumstances, with the deed leading the 
 uses of it, Coufitess of Rutland's case, 5 Co. 26, a ; and by the 
 consent of all parties interested, Touch. 519. Sfapilfon v. 
 Stapilton, 1 Atk.2. Houghton v. Tate, 3 Yo. S^Jer. 486. 
 
 Where the fine or recovery varied in time, persons, or other 
 circumstances, from the preceding declaration, the uses might 
 have been varied previously to the fine or recovery by another 
 instrument, though not a deed, but merely a writing, Jones v. 
 Morley, 2 Salk. 677, and though all persons interested in 
 the first were not parties to the subsequent instrument, Coun- 
 tess of Ruthmd's case, ubi supra. 
 
 Where the fine or recovery did not vary in time, persons, 
 or other circumstances, from the deed leading the uses of it, 
 the use was fixed accordingly as soon as the fine was levied or 
 recovery suffered ; a subsequent declaration would not control 
 its operation. Touch. 520. 2 Salk. 676. 9 Co. 10, b. 1 1, a. 
 1 Atk. 9. 
 
 Where there was no preceding limitation of the uses of the 
 fine or recovery, it might have been subsequently declared by 
 deed (4 Ann. c. 16, s. 15) ; and it does not seem clear that it 
 might not have been varied by a deed subsequent to the pre-
 
 264 OF USES AND TRUSTS. 
 
 ceding declaration ; second resolution in Tregame v. Fletcher, 
 2 Salk. 676. Touch. 521. '6 Dyer, 307, b ; but of course 
 not to subvert any mesne estate. Touch. 519. 9 Co. 11, a. 
 
 Where there occur conflicting declarations of the use in 
 the same instrument, the first shall prevail ; the maxim is, 
 the first deed and the last will. Doe v. Biggs, 2 Taun. 109. 
 See 3 Taim. 376. 3 Russ. 399. 
 
 It has not unfrequently occurred in practice, that in a 
 conveyance to a purchaser to the usual uses to bar dower, 
 there is a covenant to levy a fine, and the uses of the fine 
 are declared to the purchaser and his heirs, or to him and 
 his trustee and their heirs, nevertheless, as to the estate of 
 the trustee and his heirs, in trust for the purchaser and his 
 heirs. It is conceived that the fine would be considered only 
 by way of further assurance, and that the limitation in the 
 habendum would prevail. Southcoat v. Manory, Cro. Eliz. 
 744. Moor, 680. Wilmot v. Knowles. But 3Ir. Sanders 
 thought it more doubtful, if the fine were levied of a term 
 preceding the execution of the deed. Sir James Perrot's 
 case, 22 Vin. Ahr. 227, pi. [9.] 8. Clever v. Gyles, Cro. 
 Eliz. 300. See 1 Sanders on Uses, 219—229, ed. 4. 
 
 Where two acts of Parliament which passed during the 
 same session, and were to come into operation on the same 
 day, are repugnant to each other, that which last received the 
 royal assent must prevail, and be considered jsro tanto a repeal 
 of the other. 2 B. 8^ Adol. 818. See also Paget v. Foley, 
 2 Bing. N. S. 679. 
 
 The student is referred to the two tables in the following 
 pages, which may assist him in understanding the effect of the 
 Statute of Uses, in the various forms of conveyance which do, 
 and which do not operate by transmutation of possession or 
 seisin; the intention being, in the following example. No. 1, 
 that under each of these modes of conveyance the seisin 
 should be in A , the use or legal estate in B., and the trust 
 estate or equitable ownership in C, so that they may take 
 the same interests, or stand in the same character in each 
 conveyance.
 
 OF USES yVNJ) TRUSTS. 265 
 
 In the table No. 2, the student will see the different effects 
 under the statute upon the interests of the persons taking 
 under a limitation to ^. and his heirs, to the use of B. and 
 his heirs, to the use of or in trust for C. and his heirs, by a 
 declaration of the uses of a fine or recovery, by a feoffment, 
 lease, and release, grant, bargain and sale, covenant to stand 
 seised, and an appointment. With respect to the effect of the 
 2nd section of the stat. 7 4" 8 Vict. c. 76, upon the technical 
 operation of the two conveyances, which do not operate by 
 transmutation of seisin, the reader is referred to the note on 
 page 250,]
 
 266 
 
 OF USES AND TIIUSTS. 
 
 No. I. 
 
 In order that 
 
 A. may have the 
 seisin, 
 
 B. the use or 
 
 legal estate. 
 
 C. the trust 
 estate, or equi- 
 table owner- 
 ship. 
 
 
 In a fine 
 
 A. must be 
 Conuzee. 
 
 B. 
 
 Cestui qui use by 
 the deed lead- 
 ing or declar- 
 ing the uses of 
 the fine. 
 
 C. 
 
 Cestui qui trust. 
 
 o 
 
 a 
 o 
 
 'co 
 
 cc 
 (U 
 a> 
 tn 
 
 o 
 
 &, 
 
 c 
 .2 
 '■§ 2 
 
 3.2 
 q <U 
 (» 
 
 c 
 
 OS 
 Ih 
 
 be 
 
 .S 
 
 08 
 
 u 
 
 0) 
 Oh 
 O 
 
 Recovery, 
 
 Recoveror, 
 
 the same of the 
 recovery. 
 
 the same as 
 above. 
 
 Feoffment, 
 
 Feoffee, 
 
 Cestui qui use. 
 
 Cestui qui trust. 
 
 Lease and Re- 
 lease, 
 
 Releasee, who is 
 of course the 
 lessee or bar- 
 gainee for a 
 year. 
 
 same as above. 
 
 same as above. 
 
 Grant, 
 
 Grantee. 
 
 same as above. 
 
 same as above. 
 
 Bargain and | 
 Sale, J 
 
 Bargainor, 
 
 Bargainee. 
 
 same as above. 
 
 3 . 
 
 o a 
 
 " 0) 
 
 *3 u 
 
 ^\ 
 
 he C 
 
 .5 .2 
 
 C8 to 
 
 U. ID 
 
 Qj CO 
 
 Covenant to 
 stand seised. 
 
 Covenantor, 
 
 Covenantee 
 being cestui 
 qui use. 
 
 same as above. 
 
 Appointment. 
 
 The Releasee, 
 Grantee, &c. 
 to uses in the 
 deed creating 
 the power of 
 appointment. 
 
 Appointee. 
 
 same as above.
 
 OF USES AND TRUSTS. 
 
 2(W 
 
 No. II.
 
 268 
 
 CHAP. XXI. 
 
 OF POWERS. 
 Bull. n. (I) to A POWER is an authority expressly reserved to 
 
 Co. Z,2«. 342, b. , 
 
 &add.n.to27i. the grantor, or expressly given to another, to be 
 
 Booth's Opin. . 
 
 at the end of exercised over lands, &,c. granted or conveyed at 
 
 Touchst. and . • i» i ji- 
 
 1 CoU.jurid. the time oi the creation oi such power.* 
 
 * It is either a common law authority, or (in the more 
 usual sense) an authority deriving its effect from the Statute 
 of Uses. It is of the latter kind that the Author treats in this 
 chapter. Of the former may be instanced an authority to 
 sell lands given to executors to whom no estate is devised, 
 and the powers conferred by particular statutes, as the Land 
 Tax Acts, the Act enabling the Remembrancer of the Ex- 
 chequer to convey lands extended, &c. ; and it has lately 
 been decided, that if a will contain a general direction to sell 
 land, and it is not stated by whom the sale is to be made, if 
 the produce of the sale is to be applied by the executors 
 in the execution of their office, they will be considered as 
 having the power of sale, and will be enabled to make a good 
 conveyance of the legal estate in fee without the concurrence 
 of the testator's heir at law. Tylden v. Hyde, 2 Sim. S)- Stu. 
 238. Bentham v. Wiltshire, 4 Madd. 44. Sowarshy v. 
 
 \-2Sugd.V.h;B. Lacy, 4 Madd. 142. Patton v. Randall, 1 Jac. 4- W. 189. 
 30, &c. ed. 9.1 -, , . . . ^ , , ^ 
 
 I'rom these cases it is interred, that where real and personal 
 
 estate are directed to be sold, and the money applied to
 
 OF POWERS. 
 
 269 
 
 Powers are either collateral, or relatinq to the Poweiion 
 
 _ Puiuers, 
 
 land ; i\nd those relating to the land are either 2 Fea,ne,3d4, 
 
 Sec. in note. 
 
 appendant (or annexed to the estate) or in qtoss. 1 sand. Uses, 
 
 i r \ / » ,g,^_ 174, &c. 
 
 2 lb. 71—78. 
 
 Collateral powers are those which are given to 
 strangers ; that is, to persons ivho have neither a 
 present nor future estate or interest in the lands* 
 
 purposes not necessarily connected with the executorial 
 
 office, yet if the money arising from the sale of both estates 
 
 be directed to form one consolidated fund, the produce of the 
 
 real estate is inseparable from the produce of the personal 
 
 estate ; and as the latter is in its natural course to pass 
 
 through the executors' hands, so therefore the produce of the 
 
 real estate must be subject to the same administration, and of 
 
 a consequence that this loose devise not only empowers the ^porhes v. 
 
 executors to sell, but abo to conveii the legal estate in the f!*^"^. ' , ^„ , 
 ' ./ b 11 ^„rt 152.1 
 
 realty to a person in fee. It is also to be inferred, that if the 
 testator had directed the residue of his landed property only 
 to be converted into money, and the produce applied upon 
 the above trusts, the heir at law, on whom the legal estate 
 would have descended, would have been the proper person 
 to make the sale ; in short, that he would have taken the 
 estate clothed with a trust for the objects described. In all 
 cases of mere authorities, it is prudent to obtain the con- 
 currence of the testator's heir at law, if he can be prevailed 
 on to join in the conveyance. 
 
 * Collateral powers (correctly defined by the Author) are 
 by some called powers ' simply collateral,' or ' powers not 
 coupled with an interest,' or ' powers not being interests.' 
 These terms have been adopted, to obviate the confusion 
 arising from the circumstance, that powers in gross have 
 been by many called ' powers collateral ;' an instance of 
 which occurs in Savile v. Blacket, 1 P. Wms. 777.
 
 270 OF POWERS. 
 
 Powers relating to the land are those reserved 
 or given to persons who have either a present or 
 future estate or interest in the lands. Those 
 appendant, or annexed to the estate, are where a 
 person has an estate in the land, and the estate 
 to be created by the power is to take effect in 
 possession during the continuance of the estate to 
 which the power is annexed ; as to make leases. 
 
 Those in gross, are where the person to whom 
 they are given has an estate in the land, but the 
 estate to be created under, or by virtue of, the 
 power is not to take effect till after the deter- 
 mination of the estate to which it relates ; as to 
 jointure an after-taken wife. 
 
 Great care should be taken in the creation of 
 powers, as the appointor can only act according 
 to the authority given.* If power be given to 
 
 [* Where powers to appoint real and personal estate do not 
 authorize an appointment to one or more of the objects of the 
 power, in exclusion of the rest, a share must be given to 
 ea.ch. The Courts of common law have uniformly held, that 
 an appointment of a nominal share, however small, was valid ; 
 but Courts of equity interposed their authority, in support of 
 the presumed intention of the donor of the power, that each 
 of the objects of the power should have a substantial share, 
 and decided, that an appointment, which did not give such 
 substantial share to each of the objects, was illusory and void. 
 The difficulty of deciding in each case what was, and what 
 was not, a substantial share, has been a fruitful source of 
 litigation; and, in order to put an end to the evils of this
 
 OF POWERri. 
 
 271 
 
 husband and wife, the surnivor cannot appoint ; 
 and, therefore, if it be intended that the survivor 
 should apj)oint, such power should be expressly 
 sriven " io the survivor of them.'"' If a power Cowp.26o. 
 
 = -^ ^ [10 Fes. 370. 
 
 be ffiven to A. B. to appoint by deed, he cannot i5 /6. 596. 
 
 => . . 2 Fern. 376. 
 
 appoint by will ; and therefore, if it be meant that 3 Bro. c. a 
 he should appoint by will, it should be so said.* 
 
 equitable interference, the recent statute of 1 ff\ 4, c. 46, 
 was passed, whereby it is enacted, that no appointment made 
 after the passing of the act (16 Jufi/, 1830), in exercise of a 
 power to appoint property real or personal among several 
 objects, shall be invalid or impeached in equity, on the 
 ground that an unsubstantial, illusory, or nominal share only 
 was thereby appointed, or left unappointed to devolve upon 
 any one or more of the objects of such power ; but that the 
 appointment shall be valid in equity as at law. It is pro- 
 vided, that the act shall not prejudice any provision in any 
 deed, will, or other instrument declaring the amount from 
 which no object of the power shall be excluded. 
 
 Where under a power, not authorizing an exclusive 
 appointment, an appointment was made of part of the fund 
 to some of the objects of the power, and subsequently, 
 another appointment was made of the rest of the fund to 
 another of the objects, so as thereby altogether to exclude 
 some of the objects ; the last appointment only is bad, and 
 the fund thereby given will belong to the excluded objects. 
 Young v. Waterpark, 6 Jurist, 656. See also 1 Ves. ^ Bea. 
 101. Per Lord Eldon, C] 
 
 * Nor can a power to appoint by will be executed by deed 
 {Reidy. Shergold, 10 Ves. 370. Heatleyv. Thomas, 15 Ves. 
 596), unless the deed be in its nature testamentary. Ha- 
 hergham v. Vince7it, 2 Ves. Jun. 231. But a power to 
 appoint by ' any writing,' or * any instrument,' may be 
 exercised by deed or will {Roscommon v. Foioke, 6 Bro. P. C.
 
 272 OF POWERS. 
 
 If the power be simply to designate a person, 
 or the like, it should not be clogged with many 
 ceremonies; but if collusion or influence be feared, 
 it would be proper to throw certain ceremonies 
 in the way, as to require three or four witnesses 
 *' not being menial servants'' or the like.* 
 
 158) ; so, where the power is general, without any mode 
 being prescribed. Ex parte Williarns, Jac. ^' Walk. 93. 
 
 [By the 27th sect, of the stat. 1 Vict. c. 26, it is enacted, 
 that a general devise of the real estate of the testator, or of 
 real estate of the testator in any place, or in the occupation 
 of any person mentioned in his will, or otherwise described 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 ; and, in like manner, 
 a bequest of the personal estate of the testator, or any bequest 
 of personal property described in a general manner, shall be 
 construed to include any personal estate, or any personal 
 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.] 
 
 * No particular ceremonies are prescribed by law for the 
 valid execution of powers. A power may be given to be 
 exercised by note in writing, or by will unattested, [if made 
 before the first day of January, 1838 ; but the law is now 
 altered as regards wills made on or after that day by the 10th 
 section of the stat. 1 Vict. c. 26.] Wilkes v. Holmes, 
 9 Mod. 485. Hawkins v. Kemp, 3 East, 439. But a person 
 could not reserve to himself ^ power to appoint real estate by
 
 OF POWERS. 
 
 27;i 
 
 Again ; it should be considered whether the 
 estates to be taken under the power, when exe- 
 
 will attested otherwise than according to the Statute of Frauds 
 (^Habergham v. Vincent, 2 Ves. jicn. 231): and where the 
 power affected real estate, and was to be exercised by will 
 'duly executed," or 'by will' only, the will must have been 
 executed according to the statute. Longford v. Eyre, 1 P. 
 Wms. 740. [These observations apply only to wills made 
 before the above-mentioned day. But the late statute in 
 reference to wills made upon that day or since, requires 
 uniformity of execution in every species of testamentary in- 
 strument.] The ceremonies usually prescribed, [where the 
 power is given to appoint by deed are] that the deed or 
 instrument by which it is exercised should be sealed and 
 delivered by the appointor, in the presence of and attested by 
 two or more credible witnesses ; or where a power was given 
 to appoint by will, [according to the old law it was usual to 
 prescribe that it should] be signed and sealed by the testator, 
 in the presence of and attested by three or more credible 
 witnesses ; [but now the sealing is unnecessary, and only two 
 witnesses are required to attest under the late act.] The 
 donor of the power might, however, clog the execution of it 
 with any ceremonies his caprice might dictate, all of which 
 must have been strictly complied with, unessential and un- 
 important as they might be in themselves. Hawkins v. Kemp, 
 3 East, 430. Hence the instrument by which the power is 
 executed, should detail the ceremonies required, and notice 
 the compliance with them ; and in some cases this is indispen- 
 sable, as when a deed is required to be signed as well as sealed 
 and delivered in the presence of and attested by witnesses, 
 each of these facts must be noticed in the attestation of the 
 deed. Wright v. Wakeford, 17 Ves. 454. So also the 
 attestation of a will must have noticed the publication, if that 
 ceremony were required by the power. Stanhope v. Keir, 
 2 Sim. Sf Stu. 37 : [but under the late act that is not
 
 274 oi- POWERS. 
 
 cuted, are to be legal estates or mere trusts: if 
 the former, the estates should be conveyed by the 
 deed creating such power to the trustees and their 
 heirs, to such uses as A. B. shall appoint ; and 
 then, on the appointment, the statute will execute 
 the use : if the latter, the legal estate should be 
 placed in the trustees; as to ^. and his heirs, to 
 the use of B. and C. (the trustees) and their heirs,* 
 to and upon such trusts, and for such estate or 
 estates, ends, intents, and purposes, as D. shall 
 appoint, as the use would then be executed in the 
 trustees, and the estates taken under the a{)point- 
 ment would be trust estates only.f 
 
 requisite.] An act of Parliament (54 G. 3, c. 168,) was 
 passed shortly after the decision of Wriyhtw. Wakeford, con- 
 2 Sim.Qb. 143. firming appointments executed before the passing of the act, 
 notwithstanding the omission to express the fact of signature 
 in the attestation, where that ceremony had been required by 
 the deed reserving the power. But as this act is retrospective 
 only, it is advisable to frame the power so as not to require 
 the signature of a deed, or the publication of a will, by which 
 it is to be executed. 
 
 [* The usual and proper mode is to convey unto A. and 
 B. and their heirs, to the use of them and their heirs, upon 
 such trusts, &c. : this gives them the legal estate at common 
 law. Doe v. Passingham, 6 Bar. ^ Cress. 305.] 
 
 t Limitations of freehold estates made by virtue of a power 
 are in effect springing uses, dependent on the seisin created 
 by the deed reserving the power. An appointment conveys 
 no estate : it merely designates a use and a person to take it, 
 in exercise of a right reserved by the grantor to himself, or 
 granted by him to another person ; which use, when raised, 
 the statute immediately executes. And the appointee having
 
 OF POWERS. 275 
 
 By a power to appoint to children^ the ap- 2 ves. 640. 
 poiiitor cannot give an estate to grand-children.* Alexander, 
 
 4 Ves. 681. 
 ~ - ~~ " Crompe v 
 
 • • 1 11 Barrow. 
 
 no estate from the appointor, is said to take under the grantor 
 by the deed which gave the appointor his power. Roach v. 
 Wadham, 6 East, 303. Appointments, in exercise of common 
 law authorities, have a different operation : [for a common 
 law authority empowers the person to whom it is given to 
 transfer a seisin, upon which a use may be limited, as a 
 conveyance from the deputy remembrancer under the 25 G. 3, 
 c. 35.] In this point consists the principal distinction between 
 common law authorities and powers under the statute. Thus, 
 under a power of the latter description, an appointment to A., 
 to the use of B., gives A. the use or legal estate, and B. a 
 mere trust ; but under a similar appointment in exercise of a 
 common law authority, B. takes the use, which the statute 
 immediately executes, and A. retains nothing. 
 
 In the case of a conveyance to A., to such uses as he shall 
 appoint, A. may delegate his power to B., by appointing to 
 such uses as B. shall appoint ; his appointment amounts 
 only to a delegation of his power to B., which, as no 
 confidence for the benefit of another was reposed in A. on 
 the creation of the power, there is no rule to prevent him 
 doing, and the statute is not called into operation until some 
 certain use is designated by B., or some future delegatee 
 of the power, so that the final use may remain unappointed 
 for an indefinite period of time, and no perpetuity can arise 
 from this, because uses are vested till appointment, and the 
 power dies with the person. 1 Chance on Powers, [714.] 
 
 [* But where the power is to appoint real estate to children, 
 and is exercised by will, the donee of the power thereby 
 appointing life estates to the children, with limitations to 
 their first and other sons in tail, &c., the Courts will construe 
 the will cy pres, in order to effectuate the general intention, 
 by giving the children estates tail. Pitt v. Jackson, 2 Bro. 
 C. C. 51. Humberston v. Humberston, 1 P. Wms. 332. 
 T 2
 
 276 OF POWERS. 
 
 If, therefore, the grand-children are to take, it 
 should he provided, that, in case any or a// of the 
 said children die before the power be executed, 
 leaving- lawful issue, the donee of the power may 
 appoint among the children then living, and the 
 issue of such children as shall then be dead, in 
 such shares, &c.* 
 
 Smith V. Lord Camelford, 2 Ves. jun. 711. But this con- 
 struction is not applied to deeds. Brudenell v. JElwes, 1 
 Last, 451. 7 Ves. 382 ; nor to personal estate. Routledge 
 V. Dorril, 2 Ves. jun. 364.] 
 
 * A power to appoint among children does not authorize 
 an appointment to the executors of a deceased child {Mad- 
 dison V. Andreiv, 1 Ves. 57) ; but an appointment may be 
 made to a child en ventre sa mere, or to the issue of a child, 
 with the consent of the child. Clarke v, Blake, 2 Bro. 
 C. C. 320. Tucker v. Sanger, 1 M'Cleland, 449. A power 
 in favour of younger children excludes a younger son 
 becoming an eldest. Savage v. Carrol, 1 Ball Sf Beatty, 277. 
 Powers to appoint among nephews are subject to the same 
 rules. Falkner v. Butler, Ambl. 514. 
 
 [In Bray v. Hammersley, 3 Sim. 513. Aff. D. P. 8 Bli. 
 568. 2 CI. ^- Fin. 453, a fund was, by marriage settlement, 
 vested in trustees in trust for all and every the children of the 
 marriage in such shares, at such ages or times, and subject 
 to such conditions, restrictions, and limitations, as the wife 
 (surviving the husband) should appoint. There was only 
 one child of the marriage, and the wife surviving, appointed 
 the fund to that child for her separate use for life, and after 
 her decease, to such persons as she (the child) should appoint, 
 and in default of appointment to the executors or adminis- 
 trators of the child : Sir L. Shadwell, V. C. decided the 
 power well executed ; see also Thornton v. Bright, 2 3Iyl. ^• 
 Craig, 230 ; see also 1 Sug. Poio. 522, &c. 4 Cru. Dig. 204,
 
 OF POWERS. 
 
 So if the appointor die before execution, the 
 power as to discretion shall cease ; and, therefore 
 in some instances, it may be prudent to provide 
 for that event: as in case the said A. B. shall 
 happen to die in tiie lifetime of C. D., or before 
 there be issue of ^. F., &c. without making any 
 appointment, or only a partial or defective ap- 
 pointment, then the like power as given to the 
 said A. B. shall be vested in G. H., Sec. Though 
 when an execution is prevented by death, which 
 is an act of God, a Court of equity will aid, if 
 it be not merely dependent upon personal dis- 
 cretion* 
 
 So it is often proper to make the power more 
 general than is usually done : as to such uses, and 
 for such estates, &c. as A. B. shall from time to Powell, 
 
 ' -^ _ 344. 
 
 time appoint, &c. as A. B. may then execute his 
 
 277 
 
 263. 
 344. 
 
 note (a), ed. 4. Phipson v. Turner, 9 Sim. 227. Thompson 
 V. Simpson, 6 Dru. 8^ W. 459. 
 
 * Equity will supply the defective execution of a power in [See Sug. 
 favour of a purchaser, creditor, wife, or child, but relief is not ^^ ^q' p 94^* 
 given in cases of non-execution {Holmes v. Coghill, 7 Ves. ^^- 1836.] 
 499), unless where the power is such as a Court of equity 
 considers as partaking so much of the nature and qualities 
 of a trust, that it becomes the duty of the party to whom it 
 is given to execute it ; in which case, should the donee die 
 before he has discharged that duty, the Court will supply 
 the non-execution of the power {^Brown v. Higgs, 8 Ves. 570) ; 
 the general observation of the author, must, therefore, be 
 confined to cases of the latter description.
 
 278 OF POWERS. 
 
 power at different times, and over different parts 
 of the lands.* 
 
 So provision should be made in case of no ap- 
 pointment^ or of a defective or partial appoint- 
 meiit ; as " and in default of such appointment, 
 then as to such part or parts of the said premises, 
 or to such portion or portions of interest in the 
 same to which such appointment shall not extend, 
 to the use," &c.t 
 
 So if it be iutended that A. B. should revoke 
 his appointment, and re-appoint, power should 
 be expressly given him, from time to time, either 
 whollj/ or partially, to revoke such appointment, 
 and lijnit new uses.'\, 
 
 * The words may be introduced, but they are not indis- 
 pensable. If they are omitted, the donee may execute the 
 power partially, and at different times, so that on the whole 
 he does not exceed the limits of his power. Digge's case, 
 1 Rep. 173. Boveyy. Smith, 1 Vern. 84. 
 
 t Estates limited in default of appointment are vested, 
 subject only to be divested by the exercise of the power. 
 Doe V. Martin, 4 Term Rep. 39. Oshrey v. Bury, 1 Ball 
 ^ Beat. 53. Hence the words used by the author, or the 
 words ' in default of appointment, and in the mean time 
 subject thereto, and so far as the same shall not extend,' or 
 simply, ' and in default of appointment,' are equally valid 
 with the longer forms used by some conveyancers. 
 
 % The donee may exercise his power by an absolute ap- 
 pointment, or he may reserve a power of revocation, notwith- 
 standing the power does not comprise the words of the text,
 
 OF POWERS. 
 
 279 
 
 475. 
 
 In the execution of a power it is mostly proper 
 to recite it, and always to make it apparent on ^^oafeXBing. 
 the face of the instrument that it is the appointor s 
 intention to execute and act under the power ; and, 
 therefore, reference should be made to the pre 
 misc'S by description, &c. And it is best to say 
 expressly, that under and by virtue of such power, 
 so given, ^c. and in executioii of it, the said A. B. 
 doth appoint^ Sfc* 
 
 or any equivalent to them (Adams v. Adams, Coicp. 651 ;) 
 but where the power is executed by deed, unless the donee 
 reserve to himself a power of revocation, the power cannot 
 afterwards be changed or altered, even though the original 
 power may have given him the right of appointing and 
 revoking from time to time. Worrall v. Jacob, 3 Meriv. 256. 
 Where the power is executed by will, though it operates not 
 properly as a will, but as an appointment of use, yet as it 
 partakes so much of the nature of a will as to be ambulatory, 
 revocable and incomplete till the death of the donee, it is 
 not necessary to reserve a power of revocation to enable the 
 donee to alter his disposition of the estate. Oke v. Heath, 
 1 Ves. 139. 
 
 * The caution of the author should be carefully attended 
 to in practice, as by such means all question on the intention 
 of the donee is obviated. But it is not absolutely necessary 
 that the instrument should recite the power, or even refer 
 to it ; for if the donee does an act with all the solemnities 
 required, and which can have no effect but by virtue of the 
 power, it is taken to be done in execution of the power. 
 Dillon V. Grace, 2 Sc/i. Sf Lef. 456. He must, however, do 
 such an act as shows he has in view the subject of his power. 
 Leuns v. Lleivellyn, 1 Turn. <^ Russ. 104. Jones v. Curry, 
 1 Sivanst. 66. [Ffunloke v. Jell, 1 Biiss. ^ M. 515. Farmer 
 V. Bradford, 3 Russ. 354.]
 
 280 OF POWERS. 
 
 Too great care cannot possibly be taken in the 
 execution, to comply with and follow the requisite 
 ceremonies : as if it be given to C. D. to appoint, 
 with the approbation of her husband, testified by 
 his being party to and executing the deed in the 
 presence of three witnesses, &c. the approbation 
 of the husband, his being a party, his executing the 
 deed in the presence of three witnesses, &c. must 
 be scrupulously complied with, and may be even 
 stated. 
 
 And as the excess only, in the execution of 
 an appointment, will be bad,* and a deficient 
 execution cannot be extended, it is prudent to be 
 very full in the execution, as the surplusage shall 
 not, at least in equity, vitiate what would other- 
 wise be good. 
 
 2 Burr. 1148. If power of rcvocatiou and re-appointraent be 
 
 Free, in C/ianc. . ■, ,i • , . i 
 
 474. Touchst. given, and the appointor execute, he may reserve 
 
 524, & Booth's • 1 • ■ . r j • „ 
 
 0pm ibid. cSc in such appointment a new power oj revocation, 
 
 42h^'' '^""''' with power also to appoint new uses ; for without 
 
 this express reservation of future [power of] 
 
 revocation and new appointment, the first may 
 
 often be absolute. 
 
 Buti. a. (1) to Powers appendant may be destroyed by lease 
 
 Co.Litt.21l,h. 
 
 s. ir. &n. (1) 
 
 * Thus, where a partial interest is given to an object of 
 the power, with remainder to a person not an object, that 
 part only is void which the power does not authorize. 
 Adams v. Adams, Cowp. 651. Brudetiell v. Elives,7 Ves. 382. 
 Vide supra, p. 275, n. Doe v. Welford, \2 Ad. 8f E. 6\.
 
 OV POWERS. 281 
 
 and release, bargain and sale, and feoffment, [and to 342, b. [i 
 
 ' ° '-p. JFms. 777. 
 
 previously to the stat. 3 &' 4 W. 4, c. 74, as to 3 5/»^. 31.] 
 
 r J -^ Smith w. Death, 
 
 Enqland, and A Sr b lb. c. 92, as to Ireland, 5 Madd.sii. 
 
 . . , , 1 , , - r- [Westy.Bur. 
 
 might have been destroyed byj hne, or recovery ; «ey, 1 nuss.Sf 
 
 I • till • n ^''- ''^^'■ 
 
 those in gross by the 'three latter species or con- Bickieyv. 
 
 . 1 1 1 T-» • 1 Guest, lb. 440. 
 
 veyance, or they may be released, rowers simply Hakv. escou, 
 collateral cannot be destroyed by the act of the \qi^ 'jones'y. 
 
 1 ^1 • Winwood, 
 
 person to whom they are given. 3 Mee, §• Weh. 
 
 653.] 
 
 And note, as the appointor is merely an 2 ves. 78. Co. 
 
 . ' ^ . -^ Litt. 299, b. n. 
 
 instrument, the appointee shall be in by the (O- \ Feame, 
 
 . . -^ 99, &c. 
 
 original deed.* 2 £«rr. 879. 
 
 * It was stated in a preceding page, 93, that the case of 
 Ray V. Fung, 5 Mad. 310, 5 Bar. ^ Al. 561, has decided 
 that where a conveyance was made to A., his heirs and [See also Doe 
 assigns, to such uses as B. should appoint, and in default of ^^°"^^^ n 
 appointment to B. in fee, B.'s appointment deprives his wife 459.] 
 of dower. But it is apprehended, that if the conveyance had 
 been to B. in fee to such uses as B. should appoint, and in ["^ Prest. Conv. 
 
 , . , „ • T, • r ^ 111 482. 3/i. 265. 
 
 delault or appomtment to B. in tee, the power would have 271.494.] 
 been nugatory, as B. would take by the common law, and his 
 wife would become entitled to dower. The ordinary mode 
 of conveying an estate to a purchaser to uses to bar dower is 
 free from objection. The conveyance should be to him to 
 such uses as he sljall appoint, and in default of appointment 
 to him for life, &c. He being the releasee, the covenants 
 are properly entered into with him, and on his appointment 
 the benefit of them will be carried over to his appointee ; and 
 to render the concurrence of the trustee in future conveyances 
 unnecessary, it may be contended that he is a volunteer, and 
 therefore that his estate is void as against a subsequent pur- 
 chaser for value. 
 
 [In Goodill v. Brigham, 1 Bos. ^ Pull. 192, an estate was 
 devised to a married woman in fee, with a power, notwith-
 
 282 OF POWERS. 
 
 -Btanding coverture, to give, sell, or dispose of the same as 
 she should think proper, and also to give acquittances and 
 discharges, so as not to be under the control of her husband. 
 The Court of C. B. decided that the power w^as nugatory and 
 merged in the fee ; and that the devisee could not convey, 
 by an exercise of the power, without a fine. This decision 
 has frequently been disapproved, and must be considered as 
 of doubtful authority. It has been settled by recent cases 
 that a general power of appointment and the fee may, under 
 limitations of uses according to the statute, co-exist in the 
 same person ; and there seems strong ground to contend that 
 a devise, such as that in Goodill v. Brigham, or the more 
 technical devise to such uses, &c. as A. should appoint, and 
 in default of appointment to A. in fee, would be supported as 
 a good devise under the Statute of Wills. See also 1 Sug. 
 Pow. 1 10, ed. 1 836.
 
 283 
 
 chAp. xxu. 
 
 OF RENTS. 
 
 A RENT {Reditus) is properly a sum of money 2bi. Comm. 
 or other thing, to be rendered periodically, in Rents.' 
 consequence of an express reservation in a grant 
 or demise of lands or tenements, the reversion* 
 of which is in the grantor or person demising. f 
 
 * [By the 12th section of the 7 S,-8 Vict. c. 76, it is provided, 
 that where the reversion expectant upon any lease shall have 
 merged in the ulterior reversion or remainder, the person in 
 whose estate such merger shall have taken place, his heirs 
 executors administrators successors and assigns, shall have the 
 same remedies against the lessee his heirs successors executors 
 administrators and assigns, as the person, for the time being 
 entitled to the mesne reversion, would have had, if no such 
 merger had happened.] 
 
 f A rent must be a profit, but it may be either in money 2 Bl. Com. 41. 
 or money's worth, and either by payment, render, or corporeal 
 service. But, being a compensation or equivalent, it must Co. Liu, AT, &, 
 not be part of the thing itself, although it may be of its future ff^^Y 4 A/ rf 
 produce : it must also be certain, or capable of being reduced 79. 
 to a certainty by either party. Rent (unlike interest which 
 accrues de die in diem) becomes payable only on the accom- 
 plishment of the full period at which it is made payable. If, 
 therefore, a tenant for life, or the owner of any other limited 
 estate, grants a lease, reserving rent payable half-yearly, and 
 dies in the interval between the rent davs, at common law
 
 284 
 
 OF RENTS. 
 
 A rent, therefore, necessarily supposes a re- 
 ception of such lands or tenements from another 
 
 Cro. Jac. 500. 
 Cro. Eliz. 380. 
 565. 4 Leon. 
 247. 
 
 Paget v. Gee, 
 Ambl. 198. 
 Vernon v. 
 Vernon, 2 Bro. 
 C. C. 659. 
 8 Ves. 308. 
 
 the lessee was bound to pay rent only up to the last rent day, 
 and none from that time up to the determination of the lease. 
 But now, by the statute 11 G. 2, c. 19, s. 15, the personal 
 representatives of tenants for life are entitled to an action on 
 the case for a proportionate part of the rent accruing in their 
 ancestor's lifetime. This act has been extended by construc- 
 tion to the executors of tenants in tail dying without issue, 
 in the case of leases being made by them, which are not 
 binding on the remainderman or reversioner. And it is pre- 
 sumed, that the executors of a husband, seised in right of his 
 wife, are also entitled within the act, in the case of a lease 
 granted by him alone, so as not to operate under the enabling 
 statutes ; et vide 1 Swanst. 337, 454. 
 
 [The statute 4 4" 5 W. 4l, c. 22, was passed to obviate the 
 doubts which have arisen upon the stat. 11 G. 2, as appears 
 by the preamble of the former act. Section 1, enacts. That 
 rents reserved on leases determining on the death of the person 
 making them, (though not strictly tenant for life), or on the 
 death of tenant pur autre vie shall be considered as within the 
 provisions of the stat. 11 G.2. The 2nd section enacts. That 
 all rents-service reserved on any lease by a tenant in fee or 
 for any life interest, or by any lease granted under any 
 power, and which leases shall have been granted after the 
 passing of the act, and all rents-charge and other rents, an- 
 nuities, pensions, dividends, moduses, compositions, and all 
 other payments of every description in England and Ireland, 
 payable or coming due at fixed periods under any instrument 
 executed after the passing of the act (16 June, 1834), or, 
 being a will or testamentary instrument, coming into operation 
 after the passing of the act, shall be apportioned, so that on 
 the death of any person interested in any such rents, annui- 
 ties, &c., or in the estate, fund, office, or benefice, from or in 
 respect of which the same shall be issuing or derived, or on
 
 OF RENTS. 285 
 
 to whom they primarily belonged, and in whom 
 the ultimate property continued vested : hence 
 
 the determination by any other means whatsoever of the 
 interest of any such person, he or she, and his or her executors, 
 administrators, or assigns, shall be entitled to a proportion of 
 such rents, annuities, &c., according to the time which shall 
 have elapsed from the commencement or last period of pay- 
 ment thereof respectively, including the day of the death of 
 such person, or of the determination of his or her interest, all 
 just allowances and deductions in respect of charges on such 
 rents, annuities, &c. being made. The statute then gives the 
 same remedies at law, and in equity for the apportioned part 
 as for the entire rent, &c. The 3rd section provides, That 
 the act shall not invalidate any express provision against 
 apportionment. 
 
 It has been decided that the above statute does not apply 
 to parol leases. 4 Myl. Sf Cr. 484 : and that the second 
 section applies only to cases in which the interest of the 
 person entitled to the rents or other periodical payments is 
 determined by the event on which the apportionment is to 
 take place ; so that where a tenant in fee, grants a lease 
 reserving rent, and dies before the expiration of the lease, 
 the rent will not be apportlonable between his real and 
 personal representatives, under the above statute. Brown v. 
 Amyot, 8 Jurist, 568]. 
 
 Rent is due and payable upon the land from whence it Co. Liu. 201. 
 . , , . . , . , . 202, a. note, 
 
 issues if no particular place be mentioned in the reservation, Co. Litt. 302. 
 
 and it is strictly demandable and payable before the time of | ^aund 2Ql' 
 
 sunset on the day whereon it is reserved, though perhaps not Prec. Ch. 555. 
 
 absolutely due till midnight ; and therefore if the lessor die 
 
 before sunset on the day whereon rent is demandable, the 
 
 rent unpaid goes to his heir, but if after sunset and before 
 
 midnight, it is said that it shall go to his executor and not to 1 P. Wms. 178. 
 
 his heir. 
 
 The tenements out of which a rent is to issue must be of Co. Liu. 142.
 
 286 OF RENTS. 
 
 it follows, that, if lands or tenements were not 
 derived from another, as anciently when lands 
 were held in allodio, or if no other person has 
 such ultimate property in him, there can be 
 no rent. 
 
 If a person, consequently, grant over his whole 
 property m certain premises to another, the other 
 (or grantee) paying to such person and his heirs 
 a certain sum annually for ever, such annual 
 sum will not he property a rent^ as the grantor 
 has no ultimate property or reversion in him. 
 
 a corporeal nature, in order that the person so entitled to the 
 
 rent may have a remedy by distress. The rent must also be 
 
 reserved to one of the grantors, and not to a stranger to the 
 
 deed. To rents in gross, the remedy by distress originally 
 
 appertained by express reservation only, and hence arose the 
 
 distinctive appellations of charge and seek to rents of this 
 
 description, as they were accompanied or not with such 
 
 Rodham v. express remedy ; but now, by the statute 4 G. 2, c. 28, all 
 
 a'"^T'i^2^' '■^"ts formerly rents-seek are alike attended by that remedy. 
 
 [By the 42nd section of the stat. 3 (^ 4 ?F. 4, c. 27, no 
 
 arrears of rent are recoverable for more than six years.] 
 
 [A rent must either be reserved on a reversion, or it must 
 be a rent-seek, a rent-service, or a rent-charge ; but as there 
 cannot be a rent-seek, rent-service, or rent- charge issuing out 
 of a term, if a termor assign his whole interest in his term, 
 rendering rent, he cannot distrain if the rent be in arrear, as 
 he has no reversion : his only remedy, therefore, is upon any 
 covenant or contract existing between him and the assignee. 
 
 Bro. dette, pi. 39. Poultney v. Holmes, Stra. 405. v. 
 
 Cooper, 2 Wils. 375. Smith v. Maplehack, 1 T. R. 441. 
 Preece v. Conie, 5 Bing. 24.]
 
 OF RENTS. 
 
 287 
 
 Such annual payment is, indeed, commonly de- 
 nominated a rent-c\ra.rge or 7'ent-seck ; but it is 
 not strictly and in reality a rent ; and the law, 
 accordingly respected it differently; as it gave 
 the grantor no power of distress without a special 
 stipulation.* 
 
 * This method of conferring property was probably first Gilb.Renis,n. 
 devised as a convenient means of providing for younger 
 children, without interrupting the descent of the feud upon 
 the eldest son ; and also of carving out interests in land 
 without the necessity of obtaining the consent of the lord, as 
 was necessary in the case of a transfer of the land itself; for 
 by this means no stranger was introduced into the feud, nor 
 any relative obligation created between him and the lord. 
 But as interests of this kind were an anomaly in the feudal 
 system, they were viewed unfavourably, and distress was not 
 allowed, unless it was expressly reserved : if, however, such a 
 rent were granted for equality of exchange or partition, or in 
 lieu of dower, it was not regarded in this obnoxious light, but 
 was termed a rent-charge of common right, to which the 
 remedy by distress was incident without any express pro- 
 vision. Gilb. Bents, 17. And it has lately been decided, 
 that a distress may be taken for arrears of a rent-charge 
 created by will, although the testator does not in terms give 
 a power to distrain — that power being a consequence drawn 
 by law from the rent-charge. Rodham v. Berry, K. B., 
 April, 1826. 
 
 [In the present day rent-charges are frequently created for 
 securing pin-money and jointures to married women, a 
 present provision for an eldest son, for procuring the qualifi- 
 cations of a freeholder, and for securing life annuities as 
 a mode of raising money :] between the last description and 
 a mortgage there is this difference ; — a mortgage constitutes 
 a debt ; a life annuity is an absolute purchase ; — the conside- 
 ration of the one is to be returned ; the consideration of the
 
 288 OF RENTS. " 
 
 Again, if a person grant an annual sum to be 
 issuing out of his lands to another and his heirs 
 for ever, without parting with any property in 
 the lands themselves, it will be no rent, as it is 
 no return, no compensation, since the grantee 
 has no lands in consequence of such grant for 
 which to render or return a compensation * 
 
 As, however, the sum stipulated to be paid 
 is an annual, or at least a periodical sum, and to 
 be issuing out of lands, it was, by reason of its 
 analogy to the proper rent, denominated a rent- 
 
 other is gone for ever : and although a life annuity may 
 be made repurchasable, the money paid for redemption 
 is not paid in discharge of a lien on the estate, but as the 
 consideration for a new purchase. The principle to be 
 collected from the cases on this head is, that since the 
 proviso for repurchase is solely for the advantage of the 
 grantor, by allowing him to extinguish the annuity at 
 pleasure, without enabling the grantee to compel redemption, 
 the grant is to be considered as strictly legal, and in no way 
 subject to the rules which govern equities of redemption. 
 See Lawley v. Hooper, 3 Atk. 278. Murray v. Harding, 
 2 W. Black. 859. Irnham v. Child, 1 Bro. Ch. Ca. 92. 
 Corn. U. 42. 1 Pow. Mortg. 139, n. 5th ed. 
 
 * If a rent-charge be reserved to the grantor on a convey- 
 ance in fee, the grantor is said to hold the rent by re-grant 
 from the grantee. If so, the rent should be subject to the 
 charges and incumbrances of the grantee ; a point which has 
 not yet received its due share of consideration. — As to the 
 apportionment of rents, see the late case of Smith, ex parte, 
 1 Sioanst. 337, and the learned reporter's note there, and the 
 statute 4 4* 5 W. 4, c. 22, supra, p. 284, note.
 
 OF RENTS. 289 
 
 charge, or a rew^-seck, according as the power of 
 distress was or was not given. 
 
 Again, as a proper rent is a compensation or 
 return for the enjoyment of a particular estate, 
 it follows that when the particular estate deter- 
 mines the rent must also cease. 
 
 As the returns of the feud were conditions, 
 on the breach of which the feud reverted to 
 the lord, so the nonpayment of rent occasioned 
 a forfeiture of the lands out of which it was 
 to issue. 
 
 The rigour of the feudal law with respect to 
 forfeiture, in the cases of nonpayment of rent, 
 was soon, however, abated. It was thought un- 
 reasonably severe to insist on an absolute for- 
 feiture of the premises on nonpayment of rent 
 at the very day on which it was reserved ; and 
 the law of distresses was, therefore, adopted from 
 the civil code. But, as the distress was merely 
 a substitute for the feudal forfeiture, it follows 
 that it could only take place where that was 
 allowed. If a person had no right of reverter, 
 therefore, as in the cases where the lands, out of 
 which the annual payment was to issue, had not 
 moved from him, or where he had parted with 
 his ultimate property in the lands, which had 
 originally moved from him, there could be no 
 forfeiture to him of the lands or tenements; and 
 
 u
 
 290 OF RENTS. 
 
 consequently, he could not be entitled to a dis- 
 tress, which was merely substituted for the former 
 remedy. If the particular estate for which the 
 rent was to be rendered had expired, there could 
 not, possibly, be a forfeiture ; as the only estate, 
 which could have been the subject of forfeiture, 
 had ceased to exist ; and, consequently, there 
 could be no distress. 
 
 In the two former cases, indeed, a power of 
 distress might have been expressly created, but 
 then it was, as the terms import, a privat estipu- 
 lation between the particular parties, and not a 
 remedy given by the law. The law, however, has 
 been altered in this respect, by statute 4 Geo. 2, 
 c. 28, s. 5 ; and in the case of the expiration of 
 the term by the statute 8 Anne, c. 14. 
 
 If the lessor be seised in fee simple, the proper 
 rent should be reserved to him, " his heirs and 
 assigns ;" if he have only a chattel interest, 
 to him, *' his executors, administrators, and 
 8Co. 7i,a.i, assigns,^' Though the best way of reserving 
 Giib. Rents, m, such rent is to reserve it generally, without 
 expressing to whom ; as " yielding and paying 
 therefore, yearly, during the said term, the sum 
 of, &c." as the law will give it to -the person who 
 shall be, from time to time, entitled to the im- 
 mediate reversion, which the rent will always 
 follow ; for as the rent is only a compensation 
 for the lands, it shall go to him who would have 
 
 Sec
 
 OF RENTS. 2.01 
 
 been entitled to the lands in case the compensa- 
 tion failed.* 
 
 * If two joint-tenants lease lands by parol or deed poll, Co. Liu. 47. 
 
 reserving rent to one of them, it shall nevertheless enure to 
 
 both, [because the reversion remains in jointure.] If the 
 
 lease be by indenture, the other will be estopped from taking Co. Ztft 192, a. 
 
 a share ; and if he to whom the rent is reserved die in the 
 
 lifetime of his companion, the rent will cease, but the lease 
 
 will continue ; and if one joint-tenant make a lease for 
 
 years, reserving rent, and die in the lifetime of his com- 1 Inst. 1 85, a. 
 
 panion, the survivor shall not have the rent. [And the y^^J jgg 
 
 reason appears to be that no privity exists between the ^y-^^ ' 87, a. 
 
 lessee and the remaining joint-tenant, who by survivorship 
 
 holds the original reversion to which the rent reserved in 
 
 the lease by his deceased companion is not incident ; or, as 
 
 Lord Coke observes, because the surviving joint-tenant 
 
 claimeth in from the original grantor, which is paramount 
 
 the rent. But if one of two joint-tenants of a term makes an 
 
 underlease of his moiety to a stranger, reserving rent and 
 
 dies in the lifetime of his companion, the survivor shall not 
 
 have the rent, but it shall go to the personal representatives /;js<. 192 a. 
 
 of the deceased joint-tenant; because the underlease worked '^■Cru.Dig.'iQO, 
 
 4 ed. 
 a severance of the jointure, for a term of a small number of 
 
 years is of as high an interest as a term for many more 
 
 years.] 
 
 Reservation of rent by two tenants in common will operate 
 in severalty, not indeed to make two rents of the full amount, 
 but each shall take his proportion. 
 
 If two coparceners make a lease, reserving a rent, they Wingate'sMax. 
 shall have the rent in common annexed to their reversionary |^.' P/- ^'^• 
 
 Finch, 
 
 estate in parcenary; but if afterwards they grant the re- B. l,p. 9, ed. 
 version, excepting the rent, they shall from henceforth be 
 joint-tenants of the rent. A rent in gross being collateral 
 to lands cannot be devested ; nor will the simple nonuser of 
 the right to receive it, interfere with the continuance of the 
 
 u 2
 
 292 OF RENTS. 
 
 Though the statute 4 Geo. 2, c. 28, s. 5, has 
 given the same power of distress in cases of rents- 
 seek as in those of rent-charge, it is still usual to 
 insert a special power of distress in the grants 
 of rent ; and such special power is generally 
 accompanied also with a clause of entry on non- 
 payment, with power to enjoy till the arrears be 
 satisfied. 
 
 2 Sand. Uses, Rcnts-chargc or seek may be created by [feofF- 
 
 28, ed 4. See . , , ^ 
 
 Cm. Dig. ment or grant operating at common law or byj 
 292, vol. V, 164, bargain and sale, lease and release, covenant to 
 stand seised, feoffment or grant, [operating by the 
 Statute of Uses ; and before the abolition of fines 
 and recoveries by the late statutes (3^4 W. 4, 
 c. 74, and A Sf 5 lb. c. 92,) rents-charge or seek 
 might be created by fine or recovery. They] 
 may be limited to one in tail, with remainders 
 over. 
 
 Buti. 11.(2) to T'hey may also be released to the person seised 
 
 Co.Lttt.29Q,&. ^j' f-j^Q lands ; or convened to a stranger by grant, 
 
 and that even to commence in futuro, or under 
 
 the Statute of Uses ; as a person may be seised of 
 
 a rent to an use, which use will be immediately 
 
 3 Cru. Dig. owner's presumptive possession. A fine or recovery levied 
 294, cd. 4. ^^ suffered of the land would not, therefore, affect the 
 interests of persons in the rent ; but although a rent-charge 
 cannot be devested, non-payment of rent for any consider- 
 able period, will be a ground for presuming that it has been 
 released.
 
 OF RENTS. 293 
 
 executed by the statute.* So 2i fine or recovery Pig.9i. cru. 
 might be oi a rent.j ib4. 374,ed.4. 
 
 If a rent be limited to A. in tail, with re- p,>. 97. Buti. 
 mainder over in fee. A., by suffering a recovery, iitt. 2y8, a. 
 
 * If, therefore, lands are conveyed to A. and his heirs, to 
 the use, intent, and purpose that B., or that B. and his heirs, 
 may receive a rent, the use is executed by the statute. So 
 where lands are conveyed to A. and his heirs, to the use, 
 intent, and purpose that B. and his heirs may receive a rent, 
 with a declaration that B. and his heirs shall stand seised of 
 the rent, to the use of C. for life, with remainders over, the 
 rent is executed in B., C. and the remaindermen taking 
 mere trusts. If the estate be conveyed to A. and his heirs, 
 to the use that B. may receive a rent for life, and after his 
 death, to the use that his first and other sons, successively, 
 and the heirs of their respective bodies, may receive the 
 rent ; it may be contended that these are distinct rents, and 
 that the rent to the second son is too remote, as being a 
 new rent limited to take effect after an indefinite failure of 
 the issue of the first son. Objections might also be taken to 
 recoveries suffered by the father and son, on the ground 
 that the tenant to the prcecipe (being made by the father) 
 had not an estate of freehold in that rent which was the 
 subject of the son's entail. The way, therefore, to limit the 
 rent, is, to grant a rent to a stranger and his heirs, in trust 
 that he regrant it to the intended uses. Co. Lift. 271, 
 b. (1). 
 
 f If the rent be created by deed, or even as it should See Cupit v. 
 seem by parol, it cannot be released without deed, either at ^p^?^' \ 
 law or in equity. If a rent-charge be granted by a tenant '195. 1 Inst. 
 for life and the remainderman in fee, a release to either ' 
 enures for the benefit of the other; but a release to one 
 tenant in common does not operate for the benefit of his 
 companion.
 
 229.] 
 
 1?94 OF RENTS. 
 
 might bar his issue and the remainder over, 
 and gain a clear and absolute fee in it : but if a 
 [3 p. Wms. rent were granted de novo to A. in tail, without 
 a remainder over, and A. suffered a recovery, be 
 would only acquire a base fee determinable on 
 failure of his issue * 
 
 * If there be several successive estates tail in a rent in 
 remainder, the grantee in tail might, by suffering a recovery, 
 acquire a fee commensurate with the duration of his own 
 estate tail and the estates tail in remainder, that is to say, 
 until all the individuals to take under them be extinct. And 
 the reason of this difference between the effect of a recovery 
 of a rent and a recovery of land is, that the rent being 
 charged upon the land for a certain period only, the grantee 
 cannot by any means extend the duration of the charge, so 
 as to make it a rent in fee ; although, by the exercise of 
 rights incidental to particular interests, he may acquire the 
 absolute dominion over it for the period originally granted.
 
 295 
 
 PRINCIPLES 
 
 OF 
 
 CONVEYANCING, 
 
 SfC. SfC. 
 
 BOOK II. 
 
 OF CONVEYANCES, AS THEY llELATE TO ESTATES. 
 
 CHAP. I. 
 OF A FEOFFMENT. 
 A FEOFFMENT IS a convevance which operates Seei5«rr.92. 
 
 . ... . , 107, and Cowp. 
 
 by transmutation oj possession : it is essential to 694. 701, &c. 
 
 I . I , ... I * TT -^ ■^'- Comm. 
 
 its completion that the seism be passed.* Hence 310. Touch. 
 
 203. Butl. n, 
 ( 1 ) to Co. Lift. 
 * In Rees dcm. Chamberlain v. Lloyd, Wightw. 123, a 21\,h.2 Sand. 
 
 feoffment was tendered in evidence upon which no memo- * ' 
 
 randum of livery of seisin was indorsed. The feoffment had 
 
 been made for twenty-five years, and possession had gone 
 
 along with it. On the one side it was contended that livery 
 
 of seisin ought not to be presumed under thirty years, the
 
 296 OF A FEOFFMENT. 
 
 it can only be adopted in cases where the seisin 
 
 may be, and is actually to be, conveyed ; as in the 
 
 transfer of estates o{ freehold in possession. [It is 
 
 conceived that if a deed is intended to operate 
 
 strictly as a feoffment, and not under the statute 
 
 S'c p T/ic.c/oi. 7^8 Vict. c. 76-, livery of seisin veill be requisite, 
 
 notwithstanding the second section of that act, it 
 
 merely authorizes any person to convey real 
 
 estate by a deed to have the effect of a lease and 
 
 release, without the accompaniment of a lease 
 
 for a year, livery of seisin or inrolment, vide sup. 
 
 Of livery, 249, and infra, ch. Barg. Sf Sale.] In the trans- 
 
 n. xxix. to fer of chattel interests there is no seisin to be 
 
 Glib Ten. 
 
 [Sec 5 Bar. §• conveved, as the seisin remains in the freeholder : 
 
 AM. 575.] -^ 
 
 hence a term of years cannot be conveyed by 
 feoffment. In the transfer of reversions or re- 
 mainders on a freehold, the actual or corporal 
 seisin is not concerned, as it continues in the 
 
 period at which it becomes unnecessary to prove deeds, [9 
 Ves. 5. 2 BL Com. 368. Gilb. Ev. 94] ; on the other side 
 it was urged that livery ought to be presumed after the 
 expiration of twenty years, as possession for that length of 
 time would bar a possessory action. The Court of Exchequer 
 thought twenty years the best analogy, but did not give any 
 decided opinion on the point, as the necessity of livery was 
 superseded by its being recited in the deed that the feoffee 
 was in possession, which it was held estopped the feoffor from 
 saying otherwise. 
 
 [But livery of seisin according to an indorsement thereof 
 on the deed of feoffment will not be presumed within any 
 period less than twenty years. Doe v. Marq. of Cleveland^ 
 9 Bar. Sf Cress. 864. Doe v. Davies, 2 Mee. Sf IVel. 503.]
 
 OF A FEOFFMENT. 297 
 
 particular tenants : Hence they cannot pass by 
 feoffment, but by grant. So of equitable in- 
 terests, Sec. 
 
 Hence, too, feoffments can only be made by 
 a person in the actual seisin* to a person who 
 is not in the actual seisin; and, therefore, one GUh.Ten.ii. 
 joint-tenant cannot enfeoff his companion, be- 
 cause Ms companion has the seisin already ; each 
 joint-tenant being seised per mie et per tout. 
 But, as tenants in common, and coparceners as 
 to some purposes, have several freeholds, they 
 may enfeoff their companions of their respective 
 shares. 
 
 But [previously to the statute 7^8 Vict , c. 7o, Seei Burr.92. 
 .-^r-Sr] a feoffment by a person having no right of 
 property in the lands would pass them ; because 
 the moment he entered to give seisin he gained 
 the fee simple in possession by wrong ; [but now 
 the feoffment has no tortious operation.] 
 
 This mode of conveyance was, in many in- Touch. 203. 
 stances, the most advisable, as it cleared all dis- See2£i. Com. 
 seisins, &c. and turned all other estates into 34(),andn.(*b). 
 rights ; so that a fine, levied by the feoffor to 
 the feoffee, or by the feoffee to a stranger, 
 [would before the operation of the statutes abolish- 
 ing fines have barred] them, if not avoided within 
 the time prescribed by the statute. t 
 
 [* See Doe v. Tai/lor, 5 B. ^ Adol. 575.] 
 
 f But to give a fine this effect, one of the parties must
 
 296 OF A FEOFFMENT. 
 
 The giving of livery, indeed, was often at- 
 tended with inconvenience and expense when 
 the feoffor resided at a distance from the hinds ; 
 but this might be easily prevented by executing 
 a power of attorney ; and we may remember that 
 [aggregate] corporations must always have made 
 
 have had the freehold. If a termor [previously to the above 
 statutes] wished to acquire the fee he should have assigned 
 the term to a trustee in trust for himself personally. Having 
 then no legal interest in the land he might have entered and 
 made a feoffment, on which a fine might have been levied, and 
 the use thereof declared to himself in fee. The effect of the 
 feoffment was to turn the estate and seisin of the trustee and 
 reversioner into rights of entry ; but the reversioner might 
 have entered within five years from the last proclamation on 
 the fine to revest his seisin, and if he did so, the term in the 
 trustee would have been revested also, and the trustee would 
 then stand possessed of it in trust for the original termor, 
 whose wrongful fee would then be destroyed : if the rever- 
 sioner did not enter he would have been barred by nonclaim 
 or the fine if he were not under disability, and the quondam 
 termor would have acquired an indefeasible estate in fee, 
 and he might then take an assignment of the term to attend 
 the inheritance. If the first assignment of the term alluded 
 to the intended feoffment the assignee would be a party to the 
 disseisin, and the term would, it is apprehended, be forfeited, 
 and the reversion accelerated into an estate in possession. 
 This subject has occupied the attention of the Courts, and 
 the above is submitted to be the result of the decisions ; 
 which are the following : — Taylor v. Horde, 1 Burr. 60. 2 
 Cowp. 689. Jerrit v. Weare, 3 Price, 575. 3 Pres. Abs. 
 Pref. ix. Doe v. Moody, 1 Sand. U. 40. \_Sugd. V. ^ P. 
 261. note, ed. 6.] 2 Pres. Conv. Pref. xxxii. Doe v. Lynes, 
 3 Barn, c^- Cress. 388. Reynolds v. Jones, 2 Sim. <!y Stu. 206.
 
 OF A FEOFFMENT. 
 
 299 
 
 attorneys, under their common seal, to deliver 
 [and receive] seisin. 
 
 A feoffment, therefore, is incompatible with the 
 co-existence of any conveyance operating by way 
 of use.* Thus a feoffment and bargain and sale 
 
 * The difFerence between conveyances at common law and 
 conveyances which derive their effect from the Statute of Uses 
 is thus stated by Mr. Butler : — A feoffment, fine, and re- 
 covery, are conveyances at the common law, so far as they 
 convey the land to the feoffee, conusee, or recoveror ; if they 
 are directed to operate to, or to the use of the feoffee, conusee, 
 or recoveror, they have no other operation than as convey- 
 ances at the common law : but if they are directed to operate 
 to the use of any other person, then, though they are con- 
 veyances at common law so far as they convey the land to 
 the feoffee, conusee, or recoveror, they derive their effect 
 under the Statute of Uses, so far as the use is limited by 
 them to the person or persons in whose favour it is declared. 
 A lease and release has a mixed operation ; the lease has the 
 operation of a bargain and sale, and is in effect a bargain and 
 sale, under the statute ; but the fee passes to the lessee, and 
 enlarges his estate to an estate of inheritance by the operation 
 of the release at the common law ; and, if the release is 
 directed to operate to, or to the use of the releasee, he is 
 said to be in by the common law ; but if the use be declared 
 in favour of another person, the statute then again intervenes, 
 and executes the use in the person or persons in whose favour 
 it is declared. A bargain and sale inroUed, and a covenant 
 to stand seised, wholly derive their effect from the Statute of 
 Uses ; the first is considered a real contract, by which the 
 bargainor, for a pecuniary consideration, sells and contracts 
 to convey the lands to the bargainee : the second is a real 
 covenant, by which a person covenants to stand seised to the
 
 300 OF A FEOFFMENT. 
 
 cannot be made hy the same person, of the same 
 lands, at the same time ; for the feoffment conveys 
 the seisin or possession to the feoffee, while it is 
 absolutely essential to the efficacy of a bargain 
 and sale that it remain in the bargainor. Now 
 the possession cannot be in, and not in, the feoffor 
 at the same time. If the feoffment take effect, 
 the possession must be out of him by the very act 
 of livery ; and if the possession be out of him, 
 he cannot be seised to the use of the bargainee. 
 A bargain and sale is a contract to convey, and 
 not an absolute conveyance, as a feoffment. A 
 person cannot contract to sell, what he has 
 actually parted with. If he convey the posses- 
 sion to another he can have none in himself to 
 supply the use. 
 
 2 Bi. Comm. A clause of warranty [which is now abolished 
 133,' and Walk, by statutcs 3 ^ 4 TT. 4, c. 74, s. 14, 4 ^ 5 lb. 
 ""' ''''• c. 92, 5. 11 , and 3 ^ 4 lb. c. 27, s. 39, was before 
 
 use of his or her husband, wife, child, or near relation. — 
 Neither of those conveyances has any effect at the common 
 law, or independently of the Statute of Uses, in conveying 
 the land from the party selling or covenanting to stand seised, 
 to those in whose favour they are intended to operate ; so 
 that at common law they have no legal operation, and are 
 merely declarations of trust, binding the land in equity. But 
 the statute attaches on them, and devests the land from the 
 party selling or covenanting to stand seised, and vests it in 
 the person to whom it is limited. Butl. Fearne, 416, 7th edit. 
 [In illustration of the preceding note, see the two tables 
 supra, pp. 266, 267.]
 
 OF A FEOFFMENT. 
 
 301 
 
 those statutes usually] added to a feofFment ; but 
 
 it was preferable to insert a covenant by the 
 
 feoffor, " for himself, his heirs, executors, and 
 
 administrators," as the warranty only bound the 
 
 heirs. Yet it was deemed sometimes prudent to 
 
 insert a clause of warranty in addition to the 
 
 covenant, as it might possibly bind a. reversioner 
 
 or remainderman when no assets descended, and Ante,h.\,c.8. 
 
 be even a bar to a latent entail.
 
 302 
 
 CHAP. TI. 
 
 OF A GRANT.* 
 25/.C0M. 317. A GRANT is appropriated to the conveyance 
 
 Touchst. 228. p , . . . . , 
 
 Buti.n.i\)io 01 things not in possession^ as reversions and re- 
 2 Sand.' Use's,' maindcrs, and other incorporeal hereditaments, 
 
 25 
 
 as rents, advowsons, &c. of which no livery can, 
 of course, be given. t Hence the law divided 
 
 [* A grant is another of those conveyances which are said 
 to operate by transmutation of possession or seisin ; of 
 course it does not pass the actual possession, a reversion or 
 remainder and other incorporeal hereditaments being the 
 subject of its operation ; but as remainders, reversions, and 
 other incorporeal hereditaments, may be conveyed to uses, 
 the grant (strictly operating as such) passes a (statutory) 
 seisin to the grantee, to serve or supply the uses to the cestui 
 que use. Where no uses are limited upon the seisin of the 
 grantee, he takes at common law, and the statute is not 
 brought into operation. Vide infra, ch. Lease and Release, 
 notes («) and (c?).] 
 
 f But the common practice is, to make all conveyances of 
 freehold property by lease and release. If, however, the 
 existence of a reversion can be clearly proved, the expense 
 of the lease for a year may be saved. It is curious to observe 
 a doctrine so well settled giving way to an inconsistent 
 practice.
 
 OF A GRANT. 303 
 
 estates into those which lay in livery and those 
 in grant. 
 
 As livery of seisin was a matter of notoriety, 
 it was essential to the transfer of whatever that 
 livery could be made. It was, indeed, of itself, 
 sujficient to effectuate such transfer ; and no 
 farther evidence of the conveyance was required 
 than the evidence of such livery. But, as livery 
 could not be made of incorporeal hereditaments, 
 interests, or rights, the law, even before the 
 Statute of Frauds, required the transfer of them 
 to be in writing under seal. In many cases, GUb. Ten. si. 
 also, it ordained that attornment should be 
 made ; as in the conveyance of a reversion 
 or a seigniory ; and that for the following 
 reasons : — 
 
 1st, That the tenant in possession might not 
 be subjected to a stranger, or a new lord, without 
 his own approbation and consent. 
 
 2ndly, That he might know to whom he was 
 to render his services and distinguish the lawful 
 distress from the tortious taking of his cattle. 
 
 3rdly, That by such attornment the grantee 
 of the reversion or seignory might be put into 
 the possession of it, and that others might be 
 apprized and informed of the transfer.
 
 304 OF A GRANT. 
 
 Stat. 4 Anne, The reasoDS, however, for attornment having 
 
 c. 16, s. 9, 10, . 1 r , 1 P 
 
 and 11 Geo. 2, in a great measure ceased, from the change of 
 manners, and the dech'ne of feudal principles, 
 attornment is now rendered unnecessary to the 
 completion of a grant.* 
 
 * The reason, however, for attornment, so far as it pro- 
 ceeded on notice to the tenant, is still applicable to the case 
 of a mortgage, where the mortgage is made subsequently to 
 the lease ; for a mortgagee will not be entitled to the rent 
 under a lease made 'prior to the mortgage, until he shall 
 have given notice of the mortgage to the tenant, and required 
 payment of the rent to himself Otherwise than this, actual 
 attornment is seldom heard of in practice, except to a receiver, 
 or in the case of a recovery in ejectment, where the tenants 
 frequently attorn to the lessor of a plaintiflP, in order to save 
 the expenses of sheriffs' poundage and oflBcers' fees on 
 executing a writ of possession. 2 Bing. 59. 
 
 A feoffment by a tenant in tail, who was actually seised 
 in possession by force of the entail, [before the statute 
 3 4- 4 ^. 4, c. 74, s. 14, and 4 <^ 5 lb. c. 92, s. 11,] created 
 a discontinuance of the estate tail, by transferring to the 
 feoffee not only the possession, but also the right of posses- 
 sion, so as to take away the entry of the issue in tail, as also 
 of the persons in remainder and reversion, and to drive them 
 to their real action. But a grant could not in any case create 
 a discontinuance, for every discontinuance worked a wrong ; 
 whereas a grant only transfers what the grantor may lawfully 
 give. Thus Lord Coke says, if tenant in tail of a rent service, 
 or of a remainder or reversion in tail, grants the same in fee, 
 and dies ; this is no discontinuance to the issue in tail. 
 1 Inst. 332, a. It followed from this principle that a grant 
 could in no instance create a forfeiture, for it was an innocent 
 assurance, and conveyed no more than the grantor might 
 lawfully pass. " If a tenant for life, or years, of an advowson,
 
 OF A GRANT. 305 
 
 The operative word in this species of convey- 
 ance is " grant."* 
 
 rent, common, or of a remainder or reversion of land, grants 
 the same in fee, this is no forfeiture, because nothing passes 
 but that which lawfully may pass." 1 Inst. 251, b. 
 
 [But by the above mentioned statutes, and the 3 4" 4 W.A, 
 c. 27, *. 39, discontinuances are abolished ; and now no 
 conveyance can operate by wrong, 7^8 Vict. c. 76, s. 7.] 
 
 * For the construction of a grant see the last note in the 
 chapter on Covenants to stand seised.
 
 306 
 
 CHAP. III. 
 
 OF A GIFT. 
 
 2Bl.Com. 316. 
 Touchst. 227. 
 
 See 13 Vin. 
 519, Fraud. 
 22 Vhi. 15. 
 Voluntary 
 Conveyance. 
 
 A GIFT is properly, a voluntary conveyance ; 
 that is, a conveyance not founded on the con- 
 sideration of money or blood. 
 
 The operative word in it is ^* given." It is, at 
 this day, a suspicious species of conveyance, as 
 being without what the law denominates either 
 a good or valuable consideration. It is void as 
 to those who were creditors of the donor at the 
 time of its being made, though valid as to subse- 
 quent creditors. If it were of an estate of free- 
 hold in possession, it required livery to perfect it ; 
 for, as it had no consideration either of blood or 
 money, no use arose on it ; [but now it is con- 
 ceived it may be effected by a deed operating 
 under the 7^8 Vict. c. 76, s. 2, as, before that 
 statute, it might have be^n by feoffment with 
 livery.*] 
 
 * A conveyance in consideration of 5s. or 10s. is deemed 
 
 a voluntary conveyance, for want of adequate consideration ; 
 
 (\ and in such a conveyance a use may be raised. Without a 
 
 deed of conveyance no estate in freehold property can pass ;
 
 OF A CIFT. 307 
 
 Originally, feoffments were considered as gifts. 25/. Com.sio. 
 
 mi /-<. . 11 Wright's Ten. 
 
 Ihe term Gift now, however, is general!}' ap- iso. 
 
 receipt of rent or acquisition of the possession is not enough. 
 To the transfer of personal [chattels], however, a deed of 
 conveyance is not necessary, as whether there be or be not 
 a written assignment, there must be actual delivery of the 
 thing to the assignee. A parol gift without delivery is void. 
 Smith V. Smith, 2 Stra. 955. 
 
 A voluntary conveyance, or a conveyance founded on a 
 nominal consideration, is void, as against a subsequent pur- 
 chaser of the estate from the settlor for valuable consideration, 
 whether such purchaser have notice of the previous voluntary 
 conveyance or not. Cowp. 278. 2 Lev. 105. 9 East, 59. 
 2 Taunt. 69, 77. 18 Ves. 100. Currie v. Nind, 1 Myl. 8^ Cr. 
 17. [milats V. Busb?/, 5 Beav. 193. Doe v. Ball, 11 M. 
 ^ Wei. 531. Cotterell v. Homer, 7 Jurist, 544.] But a 
 person who has made a voluntary settlement cannot, it should 
 seem, maintain a bill in equity for specific performance of an 
 agreement which is to defeat that settlement ; the party 
 himself has no right to disturb it ; as against himself it is 
 valid and binding ; when he seeks to get rid of it, the Court 
 will not impede him, but it will not assist him. Smith v. 
 Garland, 2 Meriv. 123. A voluntary conveyance of real 
 estate, or a chattel interest, in favour of a child, by one not 
 indebted at the time, though he afterwards becomes indebted, 
 will be good against future creditors, though not against 
 future purchasers, {Russel v. Hammond, 1 Atk. 15, 16. 
 Holloway v. Millard, 1 Madd. Rep. 414. Battersbee v. 
 Farrington, 1 Swanst. 106,) — provided there be no par- 
 ticular evidence or badge of fraud, a power of revocation for 
 instance, {Peacock v. Monk, 1 Ves. 132,) — or retention of 
 possession {Bates v. Graves, 2 Ves. jun. 293) ; and see 
 Stileman v. Ashdown, 2 Atk. 481, and Lord Banbury's case, 
 2 Freem. 8. 
 
 As to marriage settlements : if a settlement be made after 
 X 2
 
 308 OF A GIFT. 
 
 propriated to the creation of an estate tail : hence 
 the person creating an estate tail is denominated 
 
 marriage, it will, as a general rule, be fraudulent and void 
 against all persons who are creditors of the husband at the 
 time of the settlement, Middlecombe v. Marlow, 2 Atk. 520. 
 White V. Sansom, 3 Ibid, 412. JVatfs v. Thomas, 2 P. 
 fVms. 364 ; and Kidney v. Coussmaker, 12 Ves. 155,) — 
 unless such settlement contain a provision for debts ( George 
 V. Milbank, 9 Ves. 190); or is made in pursuance of articles 
 before marriage (Beaumont v. Thorpe, 1 Ves. 27) ; or unless 
 it be against a single debt (Lush v. Wilkinson, 5 Ves. 387) ; 
 or the debt be secured by mortgage, in which case it would 
 not affect the settlement (Stephens v. Olive, 2 Bro. C. C. 90); 
 for to do that it seems the party must have been insolvent at 
 the time. {Lush v. Wilkinson, ubi supra ; and see East 
 India Company v. Clavell, Gilb. Eq. Ca. 37.) [In the recent 
 case of Shears v, Rogers, 3 Bar. ^ Adol. 362, a person being 
 indebted by bond in 102/. assigned a lease, (value 106/.) to a 
 trustee for the benefit of himself for life, and after his death 
 for one of his daughters in law ; and shortly afterwards died. 
 By this assignment the residue of his property became in- 
 sufficient to discharge the bond debt. The Court of King's 
 Bench held, that the assignment was within the statute 13 
 Eliz. c. 5, and void against creditors. The Court gave a 
 strong intimation of opinion, that to make a conveyance 
 fraudulent within the above statute, the party, at the time of 
 making it, must be indebted to the extent of insolvency, and 
 that the party may render himself insolvent, by the execution 
 of the conveyance. See also Wittington v. Jennings, 6 Sim. 
 493.] But it is observable, that if (with the exceptions 
 alluded to) there are creditors at the time of the settlement, 
 and the settlement is on that account declared fraudulent, 
 the property so settled will become part of the husband's 
 assets, and all subsequent creditors will be let in to partake of 
 it. Taylor v. Jones, 2 Atk. 600.)
 
 OF A GIFT. 309 
 
 the donor, and the person taking it the donee ; 
 hence the issue of a tenant in tail is said to take 
 
 [In reference to the question how far the consideration of 
 marriage may extend to sustain limitations to collateral 
 relatives, see tlic cases collected in 4 Cru. Dig. 442, et sec/. 
 4th ed.] 
 
 By the 73rd sect, of the late Bankrupt Act, (6 G. 4, c. 16,) [l§-2 W'.4.c.56. 
 
 voluntary conveyances by any bankrupt, being insolvent at 3 f ^ y^' ^ ^^ ' 
 
 the time, are declared absolutely void, faiid which does not oSf 6 lb. c. 29. 
 
 / ■- 2Sf3Vicf.c.\l. 
 
 appear to have been repealed by any of the subsequent 5 §-6 Vict. 
 
 acts.] - '•^•^•1 
 
 A voluntary deed never parted with, and executed for a 
 purpose that has never been completed, is considered in 
 equity as an imperfect instrument [Cecil v. Butcher, 2 Jac. 
 8^ Walk. 573) ; and if a power of i-evocation be introduced 
 in a deed which purports to be a voluntary settlement, it will 
 then, it is conceived, become a testamentary writing, if the 
 settlor, taking an estate for life under the settlement, retains 
 possession of the deed (3 Price, 368,379): and, therefore, if 
 the estate be directed to be sold after the testator's death, and 
 the money divided between certain persons, they will be con- 
 sidered as legatees, and must pay the legacy duty. In Attorney 
 General v. Jones, 3 Price, 368, the settlor made a. voluntary 
 assignment of leasehold and personal property to trustees, for 
 the use of himself for life, and of several persons therein 
 named at his death, with a power of revocation reserved to 
 himself; he never parted with the deed, nor with any part 
 of the property during his life, and confirmed it, in most 
 respects, by his will ; the deed and will were considered 
 to be in the nature of testamentary instruments, and the 
 property passing under them was held to be subject to the 
 legacy duty. 3 Price, 368. [See also Gaskell v. Gaskell, 
 2 Yo. Sf Jer. 502.] 
 
 A conveyance for payment of debts generally, to which no 
 creditor is a party, nor any particular debt expressed in the
 
 310 OF A GIFT. 
 
 -per formam doni, and the writ formerly given 
 liim to recover his estate was called the forme- 
 
 deed is good as against the grantor and his heirs ; but void 
 as against a purchaser. Leech v. Leech, 1 Cas. in Ch. 249. 
 But to enable a purchaser to set aside a deed made for payment 
 of debts, he must, it is conceived, be a purchaser for valuable 
 consideration, and have no notice of the deed of trust. See 
 Langton\. Tracy, 2 Ch. Rep. 16. S. C. Nels. 126. [A con- 
 veyance of all the debtor's property, in trust for all his creditors 
 generally, is an act of bankruptcy, unless protected by the 4th 
 section of the statute 6 G. 4, c. 16. 7 Sim. 121. 1 Mee. Sf W. 
 714. So also, a fortiori, is a conveyance of all his property in 
 trust for a part of his creditors ; for that upon the face of the 
 instrument would be a fraudulent preference. A conveyance 
 of part of a debtor's property for the benefit of all his creditors, 
 does not seem to constitute an act of bankruptcy, 5 T. R. 424 ; 
 unless it can be brought vpithin the 3rd section of the above 
 statute ; but a conveyance of part of his property in trust for a 
 part of his creditors, does not necessarily carry with it any 
 intrinsic evidence of fraud, unless when it is done in contem- 
 plation of bankruptcy, or with intent to give a fraudulent 
 preference ; for then, as it would be contrary to the policy of 
 the Bankrupt Law, it is an act of bankruptcy. Dough 88. 
 Round V. Byde, Cooke's Bank. Law, 110. 7 Bar. ^ Cr. 529, 
 in reference to insolvency, see the stat. 7^8 Vict. c. 96, 
 s. 19. 
 
 A conveyance by a debtor to trustees for payment of 
 scheduled creditors, who do not execute the deed, or conform 
 to its forms, cannot be enforced by the creditors : Garrard 
 V. Lord Lauderdale, 3 Sim. 1. 2 Russ. Sf Myl. 451 ; and 
 see fVahvyti v. Coutts, 3 Sim. 14 ; >S. C, 8 Mer. 707, and 
 is recoverable by the debtor, Acton v. Woodgate, 2 Myl. 
 Sf K. 492. Ravenshaiv v. Hollier, 7 Sim. 3. 
 
 But although a deed of composition, not signed by the 
 creditors within the time stated, is void at laiv, yet if the
 
 OF A GIFT. 31 1 
 
 don^ [which is now abolished by statute 3^4 
 W. 4, c. '21, s. 36.] 
 
 creditors, who have not signed, act under it, it is good in 
 equity. Spottisiooode v. Stockdale, Coop. 102 ; and see 
 3 Bar. Sf Cr. 242, as to such deeds being void at law. 
 
 Facilities are now offered under the statute 7^8 Vict, 
 c. To, for arrangements between debtors and creditors under 
 the sanction of the Court of Bankruptcy. 
 
 A conveyance, by a bankrupt bona fide to a purchaser 
 without notice, made and executed before the date and 
 issuing of the fiat shall be valid, notwithstanding any prior 
 act of bankruptcy. 2^3 Vict. c. 11, s. 12. And even 
 where he had notice, if a commission against the bankrupt 
 be not sued out within twelve calendar months. lb. s. 13 ; 
 see also lb. c. 29, *. 1, as to contracts with the bankrupt: 
 and now by sect. 7 of 5 4" 6 Vict. c. 122, no person is liable 
 to become bankrupt by reason of any act of bankruptcy 
 committed more than twelve months prior to the issuing 
 of any fiat. For corresponding provisions for Ireland, see 
 7^-8 Vict. c. 90, ss. 36, 37.]
 
 312 
 
 CHAP. IV. 
 
 OF A LEASE. 
 
 2BL Comm. A LEASE Is the grant of the possession of lands 
 
 317. Touchst. 1 1 • c T r 
 
 ch. 15. Bacon or Other things, to a person tor /z/e, years, or 
 
 on Leases, and . ,, 
 
 ante, b. l,c. 2. at Will. 
 {Cru.Dig. IV. 
 c. 5.1 
 
 On a lease for life as it goes to the seisin as 
 well as to the possession, livery must be made as 
 on a feoffment ; unless it be created by vv^ay of 
 use. A lease for life, therefore, is a freehold 
 interest, and must be passed by livery, &c. as 
 any other estate of freehold. But a lease for 
 years passing only the right of possession, as contra- 
 distinguished from the seisin, is completed by 
 the entry of the lessee ; for even before the entry, 
 an interest passes to him (called his interesse ter- 
 mini) which the lessor cannot rescind. Before 
 entry, however, the lessee cannot bring an action 
 of trespass ; nor is he, till entry, if he take at 
 common law, and not by way of use, capable of 
 receiving a release of the reversion, (a) 
 
 Liu. s. 459. 
 Co. Liu. 270. 
 [Milkr V. 
 Green, 8 Sinff. 
 92.] 
 
 (a) If he take byway of use, actual entry is not requisite; 
 the cestui que use for years has a complete estate as dis- 
 tinguished from an interesse termini., immediately on the
 
 OF A LEASE. 313 
 
 [Previously to the statute 7^8 Vict. c. 76,] S^^. ^iJ-.c /^6.. 
 a lease for a chattel interest was good by parol, 
 so it exceeded not three years from the making, 
 
 execution of the conveyance, as is exemplified in the com- 
 mon assurance by lease and release ; the lease for a year by 
 way of bargain and sale raises a use, which is immediately 
 executed into an estate in possession by the statute ; if this 
 were not the case, entry would be necessary on a lease and 
 release, which would be as inconvenient as livery of seisin 
 on a feoffment. 
 
 In 1788, a lease for twenty one years was granted to 
 J. W. which would expire at Michaelmas, 1809. In 1799, 
 T. W., the lessor, granted another lease to J. W. of the 
 same premises, for a term of sixty years, to commence at 
 Michaelmas, in 1809; in the year 1800, T. W. died, having 
 devised the same premises to J. W. for life ; in 1806, J. W., 
 by lease and release, conveyed away the legal estate of his 
 life interest in the premises to a trustee in trust for himself. 
 J. W., therefore, had the legal estate for his own life from 
 the testator's death in 1800, until 1806, when the legal 
 estate was conveyed to his trustee ; and it became a question, 
 whether the term of sixty years was merged in the life 
 estate, — in other words, whether the term to commence in 
 futuro, in 1809, merged in the existing life estate. It was 
 holden in the Court of K. B., that the reversionary term 
 was not merged ; for that being only an interesse termini, it 
 did not acquire the character of an estate till after J. W. 
 had conveyed away the legal interest for life : the two estates 
 were not in him at the same time ; there was therefore no 
 merger of the interesse termini; but there was a merger of 
 his lease for twenty-one years in the life estate ; the Court 
 observing that J. W. had nothing but his life estate until 
 Michaelmas, 1809, and nothing but the term of sixty years 
 after that period. Vide supra, 182. Doe v. Walker, 
 5 Barn. Sf Cress. 111.
 
 314 
 
 OF A LEASE. 
 
 [and whereon two-thirds at least of the full 
 annual value is reserved ;] but, if it were for a 
 longer term, or for an estate of freehold, it must 
 have been by deed or note in writing, signed 
 29Car. 2,c. 3. according to the Statute of Frauds;* [now by 
 the 4th section of the above statute of 7 ^ 8 Vict, 
 c. 76, a lease must be by deed.] 
 
 A lease is usually and properly in considera- 
 tion of a yearly rent ; and the best way of re- 
 serving such rent is to reserve it generally, as 
 Seeante,h.\, "yielding and paying, therefore, yearly, during 
 Rents.) the said term, the sum," &c. as the rent shall 
 
 follow the reversion. 
 
 See 1 Burr. A covenant sliould be inserted for payment of 
 
 125. 2 Stra. .„ • i • i i 
 
 1221. Lekeux the rciit ; as the lease, u once assigned, might be 
 
 V. Nash. . , -PI J, 
 
 assigned to a succession or beggars, j 
 
 * This position is more correctly stated ante, p. 43. If 
 it were attempted to make a lease by parol for more than 
 three years, and the lessee entered and paid rent, although 
 the lease was void even for the three years, yet the lessee 
 would be tenant from year to year ; ante, p. 5. 
 
 f This leads to the distinction between privity of estate 
 and privity of contract. Immediately on the execution of the 
 lease, a privity arises between the lessor and lessee, which 
 (provided there are any collateral covenants in the lease not 
 implied by law) is called a privity of contract, and on that 
 privity, the lessee is bound to perform all those collateral 
 covenants, although he should never perfect the lease by 
 entry. When he enters, there arises between him and the 
 lessor a second privity, called the privity of estate, and this 
 renders him liable for the covenants implied by law. In all
 
 OF A LEASE. 315 
 
 There should be also inserted a provision i Surr. 125. 
 Jbr re-entry, on non-payment of rent, to guard 
 
 leases there are certain implied covenants. On the part of 
 the lessor is implied a covenant, that his lessee shall quietly 
 enjoy the lands demised during the term, against all persons 
 lawfully claiming title : if the lease be for life, against all 
 men ; if only for years, against all persons having title, either 
 paramount to, or through the lessor. [This implied covenant 
 ceases with the interest of the lessor. Adams v. Gibney, 
 6 Bing. 656.] But against the acts of strangers, the law 
 raises no undertaking upon a lease for years ; and therefore, 
 if the lessee be ousted by one who has no title, the law leaves 
 him to his remedy against the wrong-doer. Com. L. &,• T. 
 158. On the part of the tenant, the law implies a covenant 
 to pay the rent — to cultivate the lands in a husbandlike 
 manner — and to keep the premises in repair. These cove- 
 nants are obligatory upon the lessee, so long as he continues 
 to hold the premises without obstruction on the part of the 
 lessor, or such persons as the lessor may have covenanted 
 against. 1 Roll. Abr. 519. Webb v. Russell, 3 T. R. 402. 
 Iggulden v. May, 9 Ves. 330. Besides these implied cove- 
 nants, the parties usually enter into certain express covenants, 
 the object of which is either to enlarge or abridge the implied 
 covenants, or to provide for the performance or omission of 
 some act connected with the thing demised, not provided for 
 by law. Thus, the lessor's covenant for quiet enjoyment is Line v. Su- 
 usually qualified to a quiet enjoyment as against himself and Bing"%. s. 
 all persons claiming under him ; and the lessee's covenant ^"j^- ^ ^''■ 
 to pay rent is often narrowed to a payment of rent while 
 the premises are inhabitable, and his covenant to repair 
 exempted from reparation rendered necessary by fire, wind, 
 and tempest. Hence the division of covenants into such as 
 are express and such as are implied. The introduction of an iXukes's case, 
 express covenant narrowing or enlarging an implied one, is *^^' ' ' 
 in a great measure an abrogation of the implied covenant,
 
 316 OF A LEASE. 
 
 against the event of the lands being uncultivated 
 or without sufficient distress ; for though the 
 
 and the express covenant then becomes the only one on 
 which the parties can sue. 
 
 All itnplied covenants run with the land, and so do many 
 express ones ; but the distinction between express covenants 
 which run with the land, and such as do not run with the 
 land, but are collateral thereto, and affect only the person of 
 the lessee, is very abstruse. An expression of the rule was 
 attempted in Spencer's case, (5 Co. 16, a,) with indifferent 
 success. But whatever may be the exact criterion between 
 collateral covenants and covenants running with the land, it 
 has been decided, that a covenant for quiet enjoyment {Noke 
 V. Awder, Cro. Eliz. 436. S. C. Moore, 419. 8 Taunt. 715. 
 Campbell v. Lewis, S B. Sf Al. 392) ; for further assurance 
 (^Middlemore v. Goodale, Cro. Car. 503) ; for renewal 
 {Spencer's case, ubi supra, Roe dem. Bamford v. Hayley, 
 12 East, 464) ; to repair the demised premises {Doe dem. 
 Dean and Chapter of Windsor s case, 5 Rep. 24. S. C. 
 Hyde v. Dean of Windsor, Cro. Eliz. 552. Marg. Barnard 
 V. Godscall, Cro. Jac. 309. Conan v. Kemise, Sir W. 
 Jones, 245. S. C. Congham v. King, Cro. Car. 221. Tilney 
 V. Norris, Lord Raym. 553. Potter v. Swetnam, Style, 406, 
 and Smith v. Arnold, 3 Salk. 4) ; to pay rent {Parker v. 
 Webb, 3 Salk. 5) ; to discharge the lessor of charges 
 ordinary and extraordinary {Dean and Chapter of Windsor s 
 case, 5 Rep. 25) ; to permit the lessor to have free passage 
 to two rooms excepted in the demise {Cole's case, 1 Salk. 196. 
 S. C. Bush V. Calis, 1 Shotv. 388. 12 Mod. 24. Carth. 232) ; 
 to cultivate the lands in a particular manner {Cockson v. 
 Cock, Cro. Jac. 125) ; to reside upon the premises {Mayor 
 of Congleton v. Pattison, 10 East, 136); not to carry on 
 particular trades {Tatem v. Chaplin, 2 H. Bla. 133); have 
 all been held to be covenants running with the land ; and it 
 is a settled rule, that covenants running with the land, bind
 
 OF A LEASE, 
 
 317 
 
 statute of tlie '2 Geo. 2, c. 19, s. 16, gives a 
 remedy in the latter case, yet it would be ad- 
 
 not only the covenantor during his lifetime (and his repre- 
 sentatives after his death in respect of his assets) by privity 
 of contract, but also every person who takes the legal estate 
 for the residue of the term by assignment, such person being 
 affected hy privity of estate. 
 
 [To constitute a real covenant privity of estate between 
 the covenanting parties is essential. So that if the owner of 
 a messuage and land covenants with the owner of a neigh- 
 bouring lime work and rail road, that he, his executors, 
 administrators, and assigns, will always use that lime work and 
 rail road, for making iron at and carrying it away from such 
 messuage, it is not a covenant which runs with the land : it is 
 between strangers, who do not stand towards each other in the 
 relation of lessor and lessee ; and the assigns will not be bound 
 thereby. Keppel v. Bailey, 2 Myl. % K. 517. We may 
 here observe, that a covenant to produce deeds runs with the 
 land, the rule being, that it runs with the land for the benefit 
 of the purchasers necessarily, but not for the benefit of the 
 vendor. Barclay v. Raine, 1 Sim. 8^ Stu. 449 ; and it would 
 seem that Mr. Fearne's doctrine is now law, (namely) that a 
 purchaser is entitled to require a covenant from the vendor 
 not only for the production of the deed containing the cove- 
 nant to produce the title deeds, but also a covenant for the 
 production of the deeds themselves, to the same extent as the 
 covenant in the vendor's possession entitles him to their pro- 
 duction. Cooper V. Emery, 10 Sim. 609.] 
 
 As between the lessor and lessee, they are reciprocally 
 bound to each other for the covenants in laio by privity of 
 estate, and for the covenants in deed by privity of contract. 
 The privity of estate exists no longer than the relation of 
 landlord and tenant ; and therefore, if the lessee parts with 
 his estate to a stranger with the concurrence of his lessor, 
 the privity of estate is destroyed, and his liability thereupon
 
 318 OF A LEASE. 
 
 visable to empower the lessor to enter without 
 being obliged to pursue the directions of that 
 act. 
 
 ceases. Walker's case, 3 Rep. 24, b. March v. Brace, 2 
 Bulstr. 151. S. C. Cro. Jac. 334. Brett v. Cumberland, 
 Cro. Jac. 523. Thurshy v. Plant, 1 Sand. 240, n. (5.) 
 Ashurst V. Mingay, 2 Show. 134. But it is not competent 
 to him to put an end to the privity of estate without his 
 landlord's assent ; and therefore, in order to discharge the 
 lessee, it is necessary that the lessor should testify his assent 
 to the assignment, either expressly or impliedly, as by 
 receiving rent from the assignee, or recognising the assignee 
 as his tenant by some other act. Wadham v. Marlowe, 
 8 East, 316, n. Auriol v. Mills, 4 T. R. 98. 
 
 It is otherwise in respect of the lessee's liability upon the 
 privity of contract. For when he has entered into an express 
 agreement, he is so completely bound thereby that no assign- 
 ment either of part or of the whole estate can exonerate him, 
 even though the lessor assent to an assignment and receive 
 rent from the assignee. Rushden's case. Dyer, 4, b. Broom 
 V. Hove, Cro. Eliz. 633. Matures v. Westwood, ib. 617. 
 Ards V. Watkin, ib. 637. Barnard v. Godscall, Cro. Jac. 
 309. Brett v. Cumberland, ib. 522. Bachelour v. Gage, 
 Cro. Car. 188. Norton v. Acklane, ib. 580. Ashurst v. 
 Mingay, 2 Shoiv. 134. Parker v. Webb, 3 Salk. 5. Wad- 
 ham V. Marlowe, 8 East, 314, n. Bucklandy. Hall, 8 Ves. 
 95. Staines y. Morris, 1 Ves. 4' Bea. 11. As the lessee's 
 assignment by his own act will not release him from his 
 express covenants, so neither will an assignment by act of 
 law. Hornby v. Houlditch, Andr. 40. S. C. cited 1 T. R. 
 92. So, if the lease be taken from him under an execution, 
 he still remains liable upon his express covenants. Auriol v. 
 Mills, 4 T. R. 99. And an insolvent debtor is liable upon 
 his express covenants for a breach subsequent to his discharge, 
 provided no particular release be given by the act. Cotterel
 
 OF A LEASK. 
 
 319 
 
 A lease may be assic/ned ; that is, the whole '^ bl Comm. 
 
 ■^ ^ ' 32rt, 327. 
 
 interest of the lessee may be conveyed to another ; Oomji. i87, 
 
 Palmer \. Ed- 
 wards, 
 
 V. Hooke, Dough 97. Aylet\. James, cited 1 /T. B/. 441. 
 As to bankruptcy, it is now settled by the late Bankrupt Act, 
 that if the assignees accept the lease or agreement, the bank- 
 rupt shall not be liable to pay any rent accruing since the date 
 of the commission, or to be sued in respect of any of the con- 
 ditions, covenants, or agreements therein ; nor, if they decline, 
 shall he be liable, if he deliver the lease up to the lessor, or 
 person agreeing to grant it, within fourteen days after notice 
 that the assignees will not take it ; and if the assignees do not 
 (upon being thereto required) elect whether they will or will 
 not accept the lease, the lessor or person so agreeing, or any 
 one entitled under him, may petition the Lord Chancellor to 
 compel them. 6 Geo. 4, c. 16, 5. 75. See also Copeland v. 
 Stephens, 1 B. ^' Al. 593 : [a similar protection is given to an 
 insolvent under the 1 <^ 2 Vict. c. 110, s. 50. See also 7 4-8 
 Vict. c. 96, s. 12]. 
 
 As between the lessor and assignee, the lessor, immediately 
 upon the assignment, acquires a right against the assignee by 
 reason of the privity of estate, and may enforce against him 
 all the covenants in law and in deed which run with the land ; 
 Webb V. Russell, 3 T. R. 393 ; provided the assignee accepts 
 or assents to the assignment : and the law will presume that 
 he assents to the deed, unless he does some act to shew his 
 dissent ; but it is not necessary that such dissent be by deed 
 or record, any writing will suffice for the purpose. Z B. S^ Al. 
 39. If the assignee will not take the lease, the original 
 lessee remains liable ; if the assignee accepts the lease, the 
 lessor may, at one and the same time, sue the lessee upon his 
 express covenant, and the assignee in respect of the privity 
 of estate ; but then he will be permitted to take out execution 
 against one only. Brett v. Ctunberland, Cro. Jac. 523. The 
 assignee being liable upon the covenants merely in respect 
 of the privity of estate, and no privity of contract existing
 
 320 OF A LEASE. 
 
 1 .^tr. 405. or the lessee may underlet, that is, convey for 
 
 Poultney v. . . n 
 
 Holmes, Dr. 8f n kss tei'm than he himself has in the lands. If, 
 
 Stud. Dill. 1, 
 
 c. 8. 2 Stra. 
 
 J 221. Lekeux 
 
 V. Nasfi. between him and the original lessor, it follows that his liability 
 
 can last only so long as he remains possessed of the estate. 
 As soon as he assigns the whole of it over, the privity is 
 destroyed, and his liability ended, though the assignment be 
 made without notice to the lessor. Pitcher v. Tovei/, 1 Show. 
 340, S. C. 4 Mod. 71. 1 Salk. 81.2 Vent. 234. 3 Lev. 295. 
 Carth. 177. Holt, 78. 12 Mod. 23. Boulton v. Canon, 
 1 Freem. 336. Citi/ of London v. Richmond, 2 Vern. 421. 
 Buckland v. Hall, 8 Ves. 95. Staines v. Morris, 1 Ves. 8^ 
 Bea. 11. Nor will an assignment to a mere pauper be deemed 
 fraudulent ; — the lessor still retaining his right of action 
 against the original lessee upon the privity of contract. 
 Valliant v. Dodemede, 2 Atk. 546. Huddle v. Hawksley, 
 cited in Lekeux v. Nash, 2 Stra. 1221. Taylor v. Shum, 
 1 Bos. Sf Pul. 21. So an assignment to a feme covert will 
 discharge the assignee. Barnfather v. Jordan, Dougl. 452. 
 " For a feme covert is of a capacity to purchase of others 
 without the consent of her husband, and though he may 
 disagree and divest the estate, yet if he neither agree nor 
 disagree the purchase is good." Co. Litt. 3, a. And it is 
 now settled that a mortgagee of the whole term stands in the 
 same situation as any other assignee, and as such is liable to 
 the covenants in the mortgagor's lease, even though he never 
 enter upon the premises. Williams v. Bosanquet, 1 Brod. Sf 
 Bing. 238, 246. 
 
 With respect to an assignee of part of leasehold premises, 
 it has very recently been adjudged that he is not liable to 
 the covenants in the original lease, except as to the part 
 which is assigned to him. The lessor may indeed sue such 
 an assignee in the first instance, in respect of the whole rent. 
 But the assignee may, by his plea, shew that his liability is 
 confined to the particular part. And if, as to that part, he is 
 a joint-tenant with others, who are not joined in the actil)n,
 
 OP A LEASE. 32 
 
 therefore, it is intended that he shall not do so, s ^nstr 7oi. 
 
 Folkinghavi v. 
 
 an express provision or covenant should be in- Croft. 
 
 he cannot avail himself of that non-joinder, except by plea 
 in abatement. Merceron v. Dowson, 5 Bar. ^ Cress. 479. 
 
 Between the lessor and an under-fenatit there is neither 
 privity of estate nor privity of contract ; so that these parties 
 cannot take advantage the one against the other of the 
 covenants, either in law or in deed, which exist between the 
 original lessor and lessee. The lessor, therefore, cannot sue 
 the under-tenant upon the lessee's covenant to pay rent — to 
 repair — to cultivate, &c., though the under-lessee be in the 
 actual possession of the premises ; nor can the under-lessee 
 sue the original lessor for breach of his covenant for quiet 
 enjoyment, though the disturbance be committed by the 
 lessor himself. Holford v. Hatch, 1 Dougl. 183. 
 
 In conclusion, it may be observed, that in the case of an 
 assigtiment, the covenants at law, being inherent in the 
 estate, pass along with it from the assignor to the assignee. 
 Express covenants running with the land stand upon nearly 
 the same footing as covenants in law, and may always be 
 taken advantage of by the assignee, who on the other hand 
 will be bound by such covenants whenever they affect the 
 present state of the land, even though he be not named ; 
 but if they respect something to have a future existence upon 
 or in respect of the laud, they will run with the land and be 
 binding on the assignee, provided only he be named. Mere 
 collateral covenants never run with the land, and are binding 
 only between the covenanting parties and those persons who, 
 upon the death of the parties, represent them, become pos- 
 sessed of assets, and remain answerable in respect of such 
 assets. Moreover, an under-lessee is not liable to any action 
 of covenant by the original lessor, whether he be in or out 
 of possession of the premises, or whether the covenant be 
 expressed or implied, or whether it be collateral or run with 
 the land. It is, however to be remarked (as hinted in the 
 
 Y
 
 32'2 ^^ A LEASE. 
 
 serted to restrain him. And a covenant that the 
 lessee shall not assign without the consent of the 
 lessor, has heen deemed a common and usual 
 one.* 
 
 12 Fes. 395 
 1 Camp. 20. 
 
 next paragraph in the text) that by the statute 4 G. 2, c. 28, 
 the original landlord has a right of distress on the land which 
 no assignment or under-lease can avoid : and in most leases 
 an express proviso is inserted, that if the rent be unpaid for 
 a given time, or the covenants be unperformed, it shall be 
 lawful for the lessor to enter and re-possess himself of the 
 land, and thenceforth for ever thereafter to hold and enjoy 
 the same as of his former estate and condition. Neither 
 can this proviso be avoided by any act of the lessee. As 
 between the lessor and the land, the implied covenants are 
 binding in every event, but the express covenants depend on 
 Aie solvency of the lessee. 
 2 T. R. 425. * In Crusoe v. Bugbt/, 2 Wm. Black. 766. 3 Wils. 234, 
 
 a covenant *' not to assign, transfer, or set over, or otherwise 
 do or put away with this present indenture of demise," was 
 held not to extend to an under-lease of part of the term, the 
 words " otherwise do or put away" being construed to signify 
 an entire disposal of the premises. But where the words 
 were, " not to assign or set over, or otherwise depart with 
 this indenture of lease," it was considered in practice, that 
 an under-lease from year to year was a departure with the 
 lessee's interest in the indenture for a time "otherwise than 
 by an assignment or setting over for the whole term." An 
 agreement for a lease is sometimes resorted to as an evasion 
 of this covenant : but it is to be remembered, that the lessor 
 cannot distrain on a tenant who enters into possession under 
 such an agreement, for in such case there is no demise, either 
 express or implied. In the language of the Court of Common 
 Pleas, — when a person is so foolish as to enter upon the pre- 
 mises under an agreement for a lease, without a stipulation 
 that in case no lease is executed, he shall hold for one year
 
 OF A LEASE. 323 
 
 Again, a lessor is not oblieed to renew the 2 nm. c. c. 
 
 , . . 636. TrittOH 
 
 lease (unless by custom): and therefore, if it be v. Foote.nves. 
 
 , jun. 295. 
 
 intended that the lessor should be compelled to 6 Fes. 232. 
 do so, a covenant for that purpose should be also 
 inserted. But if the lessor covenant to renew 
 under " the like covenants" it will not extend to 
 a further covenant for renewal* 
 
 certain, until the lease be granted, the landlord may turn him 
 out without notice : but the effect is, that the lessor cannot 
 distrain for the rent ; he must bring his action. Hegan v. 
 Johnson, 2 Taunt. 148. Ante, p. 20. 1 Stark. 308. In a {Doe\. Bevan, 
 late case it was held at Nisi Prius, that a deposit of a lease 353-1 
 by way of mortgage is no breach of a covenant " not to 
 let, set, or assign, transfer, set over, or otherwise part with 
 the premises thereby demised, or that present indenture of 
 lease, or his or their term or interest by that indenture 
 granted, or any part thereof, without the special license, 
 consent, and approbation of the lessor." Doe dem. Pitt v. 
 Laming, 1 Rt/. ^ Moo. 36. And on application at the 
 Comptroller's Office for the Citi/ of London, the Editor was 
 informed, that a mortgage is not an assignment within the 
 condition not to assign usually inserted in city leases : but he 
 felt great difficulty in relying on that answer as a good 
 defence in an action at law, whatever relief it might have 
 afforded in a Court of equity. He therefore advised a license 
 to be obtained, as the only sure course of preventing doubt. 
 The latter paragraph in the text has been distinctly overruled 
 in Church v. Brown, 15 Ves. 258, where it was held, that 
 under an agreement for a lease the lessor is not, without 
 express stipulation, entitled to a covenant restraining alien- 
 ation without license, as a proper and usual covenant; etvide 
 2 Swan. 247. 
 
 * A covenant on the part of the landlord for continued 
 renewals, as it tends to create a perpetuity, is not favoured 
 
 Y 2
 
 324 OF A LEASE. 
 
 Co. Zi«.53,a. A lessee for years is compellable to repair, 
 &c. : and therefore if it be not intended that he 
 
 by any Court. A promise by the landlord to renew a lease 
 in consequence of money already laid out by the tenant, was 
 held by Lord Chancellor Thurlow to be nudum pactum, and 
 not to be specifically performed in equity ; and his Lordship 
 further held, that the circumstance of the tenant's having 
 subsequently laid out money, as it was voluntarily, could not 
 alter the case ; though had the tenant stated his intention, and 
 the promise to renew had been founded on that, he would 
 have been entitled to a specific performance. Robertson v. 
 St. John, 2 Bro. Ch. Ca. 140; and see Richardson v. Sy- 
 denham, 2 Vern. 447. But where such a covenant is express 
 and unequivocal, it will be duly enforced. Bridges v. Hitch- 
 cock, 5 Bro. P. C. 6. Furnival v. Crew, 3 Atk. 83. In 
 one case the Court of King's Bench went so far as to hold, 
 that the circumstance of the lessor's having frequently re- 
 newed a lease, gave a construction to an equivocal covenant 
 for a perpetual renewal, and bound him continually to renew. 
 Cooky. Booth, Cowp. 819. But this decision has been gene- 
 rally condemned, and may now be considered as exploded. 
 See Baynham v. Guy''s Hospital, 3 Ves. 295. Moore v. 
 Foley, 6 Ves. 232. In a late case, where a lease for twenty- 
 one years contained a covenant by the lessor at the expiration 
 of eighteen years to grant a new lease, " with all covenants, 
 grants, and articles contained in the original lease ;" the 
 Court of King's Bench held, that this covenant was satisfied 
 by the tender of a new lease containing all the former cove- 
 nants except the covenant for future renewal. And the 
 judgment was affirmed in the Court of Exchequer Chamber 
 upon writ of error. Iggulden v. May, 7 East, 237, 2 New 
 Rep. 448. 9 Ves. 325. Inchiquin v. Burnell, Harg. Jur. Arg. 
 In the case of leases renewable upon lives, it has frequently 
 been determined, that such right of renewal will be lost, if the 
 lessee neglects to renew upon a life dropping. Baynham v.
 
 325 
 
 OF A LEASE. 
 
 should do SO, a covenant from the lessor to repair 
 should be inserted. 
 
 The operative words in a lease are " demise, 
 leascy and to farm let.""* 
 
 Guy's Hospital, 3 Ves. 295. Eaton v. Lyon, 3 Ves. 690. 
 Bayley v. The Corporation of Leominster, 3 Bro. C. C. 529. 
 Willan V. fVilla7i, 16 Ves. 84. The City of London v. Mit- 
 ford, 14 Ves. 4:\. Maxwell v. Ward, 11 Price, 3. 13 lb. 
 674. 1 M'Clel. 458. A covenant for renewal is a covenant 
 running with the land. Isteed v. Stanley, 1 ^/nc/. 82. i?oe 
 V. Hayley, 12 £as^, 469. And it is observable, that a person 
 having a partial interest in the lease, as a tenant for a less 
 term of years, or a tenant for life, can compel contribution to 
 a renewal fine. Charlton v. Driver, 2 Brod. S)- Bing. 345. 
 [See also White v. White, 9 Ves. 554, as to contribution 
 between the tenant for life and remaindermen. Giddinys v. 
 Giddings, 3 Russ. 260. See also 17 Ves. 485. 3 3Iad. 491. 
 5 lb. All. S.P.I Mad. 4- Geld. 72. 2 Russ. 238. But 
 where the deed or will creates no trust for renewal, and the 
 lease contains no covenant to renew, the tenant for life is not 
 bound to renew, although there is a custom for the lessor to 
 renew at a given period on receiving a fine. Capel v. Wood, 
 4 Buss. 500. See also Rop. Leg. 1 Vol. 279—286, ed. 3. With 
 respect to the renewal of leaseholds without a surrender of the 
 underleases, see 4 G. 2, c. 28, s. 6. And in reference to 
 renewals by ecclesiastical persons, see the restriction imposed 
 by the 6^-7 W. 4, c. 20, s. 64. 
 
 * Upon the question, what shall be considered a lease, 
 and what merely an agreement, see 1 Cru. Dig. pp. 54 — 58. 
 But by the statute 7 4^ 8 Vict. c. 76, s. 4, it is enacted, that a ^^0 K^ * /^^ 
 lease and surrender must be by deed in writing, but any 
 agreement in writing to let or to surrender shall be valid, 
 and take effect as an agreement to execute a lease or sur-
 
 326 OF A LEASE. 
 
 2Si.Com.3i9, Scc ante, Book I., Ch. II. Of Terms for 
 280. &c. Ba'c. Years ; and as to leases by husband and wife 
 of the wife's lands, ecclesiastical persons, cor- 
 porations, guardians, &c. the books cited in the 
 margin. 
 
 render ; and the person who shall be in the possession of the 
 land in pursuance, of any agreement to let may, from payment 
 of rent or other circumstances, be construed to be a tenant 
 from year to year. But the act is silent as to surrenders by 
 act of law.]
 
 3-27 
 
 CHAP. V. 
 
 OF AN EXCHANGE. 
 
 An exchauge [at common law which by tiie 2 bl Comm. 
 statute 7^8 Vict. c. 76, is now virtually abo- c. le. 
 lished, was] a mutual grant of equal interests, the 
 one in consideration of" the other.* No delivery 
 
 * As fee simple for fee simple ; estate for life for estate for 
 life ; estate tail for estate tail ; freehold for freehold ; legal 
 estate for legal estate ; copyhold for copyhold of the same 
 manor. If the legal estate were in a trustee, the exchange 
 must be made by and to him. So, if there were joint- 
 tenants for life with the inheritance of the fee to one, the 
 exchange must have been to them accordingly. But 
 exchanges under inclosure acts are generally considered as 
 not bound by these rules. Thus, lands of freehold tenure [stat. 4 §• 5 
 may be exchanged for lands of copyhold tenure within the 271*^ ' 
 same parish or manor — a tenant for life may exchange with 
 a tenant in fee, provided the remainderman be not thereby 
 injured (2 Chit. Rep. 251); an equitable tenant with a tenant 
 of the legal estate, and a copyhold tenant with his own lord. 
 But these allotments and alterations of the possession of the 
 lands within a parish or manor can scarcely be called 
 exchanges ; they are mere substitutions of one piece of land 
 for another, without effecting any change or alteration of the 
 title or interest. The lands taken in exchange by each 
 per&on will be of the same tenure as the lands given by him
 
 328 OF AN EXCHANGE. 
 
 Co. Litt. 50,h. was necessary on an exchange at common law; 
 
 Perk. s. 285. i i i 
 
 but entry by each party was absolutely necessary 
 to effectuate it. 
 
 If both parties die before entry, the exchange 
 
 was void ; and if one died, his heir might avoid 
 
 it.* Hence [even before the above statute, it 
 
 was] sometimes preferable to make the parties 
 
 Buti.n.(\)to (except as to corporate bodies, or others who 
 
 Co.Litt.27\,h. 1 • I N -1 
 
 s. 3. cannot stand seised to an use,) execute reciprocal 
 
 conveyances founded on the Statute of Uses, as 
 those of lease and release ; which did away the 
 necessity of entry. [But now by the third sec- 
 tion of the above statute no exchange made upon 
 or after the 1st of January., 1845, shall be vaHd 
 at law except by deed.] 
 
 [4 §• 5 W. 4, in exchange, and be held by the same services, &c. ; and a 
 ' *' '•' clause is now usually inserted in all inclosure acts, commu- 
 nicating the title of the lands given in exchange to those 
 taken in exchange. 
 
 * The exchange was not merely voidable, but absolutely 
 void, according to Loixl Coke, who speaking of exchanges 
 says, " the parties have no freehold in deed or law in them 
 before they execute the same by entry, and, therefore, if one 
 of them dieth before the exchange be executed by entry, the 
 exchange is void ; for the heir cannot enter and take it as a 
 purchaser, because he was named only to take by way of 
 limitation of estate in course of descent." Co. Litt. 50, b. 
 
 If an infant exchanged lands, and after his full age 
 occupied the lands taken in exchange, the exchange was 
 become perfect ; for at the first the exchange was not void, 
 but voidable only ; for it amounted to a livery, and was also 
 a benefit or recompense. Co. Litt. 51, a.
 
 OF AN EXCHANGE. 329 
 
 An exchange [at common law] could only be 3 wus. 483. 
 
 . . , , , J /• Harg. n. ( 1 ) to 
 
 between two parties^ though the number of per- Co. utt. bo,h. 
 sons was immaterial.* The word " exchange " 
 was the only operative word, and therefore indis- 
 pensable, and it implied a mutual warranty.'\ 
 
 * That is to say, several persons might compose each 
 party. Thus J. could not grant lands to B. in exchange for 
 lands which A. was to receive from C. ; but a tenant for life. 
 tenant in tail, and reversioner on the one part, might ex- 
 change with a trustee of the legal estate, and a feme covert 
 and tenant in fee of the equitable interest on the other part. 
 Co. Lift. 50, b. 51, a. 2 Shep. Touch. 297, 298, ed. hy Prest. 
 Bustard v. Coulter, Cro. Eliz. 902. Eton Provost v. Winton, 
 Bp., 3 Wils. 496. The foundation of an exchange at common 
 law, was a mutuality of interest, and an implied warranty, 
 which engendered the right of re-entry in case of eviction. 
 Neither of these principles were applicable to exchanges under 
 inclosure acts, where the object is convenience of occupation 
 and contiguity of possession merely. Hence it will probably 
 be decided, if the question should ever come before the 
 Courts, that the commissioners may, by their award, make 
 an exchange as between three persons, for the convenience of 
 each. Cov. Inc. 53. 
 
 t But by the Statute of Frauds (29 Car. 2, c. 3,) a 
 writing is in all cases necessary, if the exchange be of 
 freehold interest, or of a term exceeding three years. Litt. 
 sect. 62. Co. Litt. 50, a. It is submitted that a statute use 
 could not arise on the seisin acquired by an exchange at 
 common law. The exchange was perfect in itself, and gave 
 the legal estate. Besides, there could be no consideration 
 moving from the cestui que use who must necessarily have 
 been a third party, and consequently open to the observations 
 of the last note. Exchanges have usually been made by 
 mutual releases, the one in consideration of the other ; but 
 the title of the land given in exchange is involved in
 
 330 OF AN EXCHANGE. 
 
 [But now by the 6th section of the above statute 
 , it is declared that neither the word " grant" nor 
 *' exchange" shall have the effect of creating a 
 warranty or right of re-entry, nor any covenant 
 by implication.] 
 
 investigating the title of the lands taken in exchange. A 
 late promising and worthy Editor of Noy's Maxims was, 
 however, of a different opinion, but he cites no authority for 
 his position. See Byth. Noy, p. 156. 
 
 [The reader is here referred to the stat. 4 Sf 5 PF. 4, 
 c. 30, for facilitating exchanges of land lying in common 
 fields. 7 Cru. Dig. Ed. 4. Appendix 6. 6^7 fV. 4,c.ll5, 
 ss. 35, 37, amended, 3^4 Vict. c. 31.]
 
 331 
 
 CHAP. VI, 
 
 OF A RELEASE. 
 A RELEASE is the relinquishment of a rie'ht or 2 bi. Comm. 
 
 ^ ® 324. Gilb. 
 
 interest in lands or tenements to another who has Ten. 53. 
 
 , , . , Touchit. c. 19, 
 
 an estate in possession in the same lands or tene- p. 320. utt. 
 
 ch. 8,s. 444, 
 
 ments.* &c. 
 
 There are five species of release : 1st, By way 
 of enlargement ; as if he in remainder in fee 
 release to the particular tenant in possession. 
 •2ndly, By way of passing an estate ; as when one 
 coparcener or joint-tenant releases to the other. 
 3dly, By way of passing a right ; as when a 
 disseisee releases to the disseisor. f 4thly, By 
 
 * Actual possession, however, is not at all times necessary : 
 a vested estate is in many cases sufficient for the operation of 
 a release. Thus if a man make a lease for years, remainder 
 for years, and the first lessee enter, a release to the termor in 
 remainder by the reversioner is good to enlarge his estate into 
 a fee simple. Co. Litt. 270, a. u. (3). 
 
 f As to the distinction between releases of estates and 
 releases of rights, it is observable, that the release of an estate 
 occurs where there is a privity between the releasing parties. 
 A release of a right occurs where no such privity exists, as in 
 the case of discontinuance, disseisin, abatement, &c. : the 
 disseisee may release his right to the disseisor, and then no
 
 332 OF A RELEASE. 
 
 way of extinguishment ; as if my tenant for life 
 makes a greater estate than he is warranted in 
 
 estate passes, but only a bare right. Co. Litt. 266, a. 275, a. 
 If A. seised in right of his wife, [tenant in fee] makes a lease 
 for forty years to D. and afterwards A. dies, leaving his wife 
 surviving, and she releases to D. generally, this is the release 
 of an estate, and operates by way of enlargement of D.'s estate 
 from a chattel to a freehold. But if J., being so seised, makes 
 a [feoffment] to D.for life (which [before the statute 32 H. 8, 
 c. 28, was] a discontinuance of the wife's estate,) and after 
 A.'s death his widow releases to D . generally, this is the 
 release not of an estate but of a right, and operates by way of 
 confirmation of D.''s lease for life, and also of the [tortious] 
 reversion which the [feoffment] created, and which upon A.^s 
 death descended on his heir. In the first case, the lease was 
 not void, but voidable only : it divested not the wife's estate, 
 but on the contrary, till avoided, bound it; and it is a maxim, 
 ' that the estate which I may defeat by my entry, I may 
 equally make good by my confirmation,' Co. Litt. 300, a. : 
 therefore the wife, on the death of her husband, may confirm 
 the estate of the lessee by release, which thus far operates as 
 a release of right ; but being made generally, it operates to 
 enlarge an estate of the lessee from a chattel to a freehold 
 interest, and in that respect it is a release of estate. In the 
 latter example, the husband having [enfeoffed] D. for life, he 
 thereby divested the wife's estate, and turned it into a mere 
 right. By the [tortious operation of the feoffment] he also 
 created a new reversion in fee in himself, which on his death 
 descended to his heir at law : and the wife could not avoid 
 these estates by her entry at the common law, but only under 
 the statute 32 H. 8, c. 28, and see Co. Litt. 297, b. 326, a. 
 333, b. Ritso. 190. Her release, therefore, in the latter 
 instance, was a release of that right simply. 
 
 There is also another distinction between the release of an 
 estate, and the release of a right, which it is material to
 
 OF A RELEASE. 333 
 
 granting, and I release to his grantee ; or if 
 
 the lord release to his tenant his seignorial 
 
 rights. And, 5thly, By way of entry and feoff- ^iq^'^bII^C' 
 
 merit ; as when a disseisee releases to one of two 240. 
 
 disseisors. 
 
 In order to give operation to a release, it [was, 
 previously to the statute 4^5 Vict. c. 21, and 
 7 SfS lb. c. 76,] necessary that the releasee had 
 
 observe here. The release of an estate admits of qualification 
 at the will of the releasor ; thus the lord may release his 
 seignory to the tenant of the land, in fee, in tail, for life or 
 years. But the release of a right admits no such qualification; 
 if released but for a moment, it is extinguished for ever. 
 Co. Litt. 274, a. 280, a. 
 
 It is further observable, that a release of a right to him who 
 has a reversion or remainder is a release to him who has the 
 freehold: so a release made to a tenant for life, or a tenant 
 in tail, shall enure to him in the reversion or remainder, if 
 they plead it : and so to trespassers and feoffees, but not to 
 disseisors. Litt. s. 522. And as a release [of a right] cannot 
 be for a part of the interest of the releasor, nor for a partial 
 period of time, so neither can it be on a condition. Noy, 75. 
 From this doctrine it follows, that to a release of a right, words 
 of inheritance are not requisite ; but to a release of estate, 
 the releasee having no previous inheritance, and fiefs being 
 only for life or in fee, according as they were originally granted, 
 the release gives the estate to the releasee only for his life, 
 unless it be expressly made to him and his heirs. Co. Litt. 
 273, b. (2). A release of all demands extinguishes all actions, 
 real and personal, and is the most ample release a person can 
 make. Nay. Max. Ch.Rel. Byth. e*\. 176.
 
 334 . OF A RELEA>iE. 
 
 the seisin, or at least possession, of the premises, 
 either by livery, by the Statute of Uses, or by 
 actual entry ; and, therefore, if any conveyed by 
 lease and release, who could not stand seised to 
 an use, as a corporation, the lease, on which the 
 release was to be grounded, must not [have been] 
 be in the common way of bargain and sale, but 
 by way of demise and lease at common law, with 
 actual entry hy the lessee. [But by the latter 
 statute this is now no longer necessary ; for the 
 lease for a year is dispensed with in the convey- 
 ance by lease and release by a corporation as well 
 as by an individual. («)] 
 
 [Where the lease for a year is still resorted to, 
 care should] be taken that the premises in the 
 lease, or bargain and sale, be at least commen- 
 surate with those in the release, as the release is 
 only of the right to, or estate in, the premises of 
 which the releasee is in actual possession; and, 
 consequently, no more can pass, 
 
 [(a) Much doubt existed whether under the statute A Sf 5 
 Vict. c. 21, a corporation could convey, without a previous lease 
 for a year, by common law demise, perfected by entry ; but 
 the glossory clause {s. 1) of the 7 4" 8 Vict. c. 76, extends 
 the meaning of the word ' person' to a corporation as well as 
 to an individual : and, as a corporation, before the passing of 
 the act, could without doubt have conveyed by lease and 
 release (the lease being by common law demise, perfected by 
 entry,) the language of the second section, explained by 
 the first, clearly extends to a lease and release by a corpo- 
 ration.]
 
 OF A RELEASK. 335 
 
 A release is the proper mode of extinguishing 
 a right to, or an equity, or contingency, or pos- 
 sibility, in the lands of the releasee. 
 
 The operative words in a release are, "re- 
 lease," or " remise^ release, and for ever quit claim 
 and discharge.*'
 
 336 
 
 CHAP. Vll. 
 
 OF A CONFIRMATION. 
 
 2 Bl. Com. 325. 
 Gilh. Ten. 75. 
 Touchst. 311. 
 Litt. ch. 9, 
 s. 515, &c. 
 Plowd. 397. 
 
 A CONFIRMATION differs essentially from a 
 release, as it only validates and establishes that 
 estate or interest which the tenant already has ; 
 whereas a release is the relinquishment of a 
 right whicli the tenant had not before. So far 
 as the particular estate is increased, it is not 
 a confirmation ; it is not the strengthening of 
 the tenant's estate, but the giving him a greater.* 
 
 * Estates which are void cannot be confirmed ; but those 
 which are voidable only may. Co. Litt. 295, b. Thus a lease 
 by a tenant for life is absolutely void at his death, and admits 
 of no confirmation by those in remainder. Doe v. Archer, 
 1 Bos. ^ Put. 531. As to the distinction between void and 
 voidable estates, see 1 Pow. Mortg. 209, 210, a. 2 Ibid. 
 723, a. 
 
 In reference to the effect of a deed of confirmation, it is 
 laid down in Brabroke v. Inskip, 8 Ves. 417, that where a 
 person is called upon to join in a conveyance for the purpose 
 of obviating a specific objection to the title, he will not be 
 bound by it as to any interest of which he has not been 
 apprised. But if he consents to join in the conveyance upon 
 being told generally that there are objections to the title, 
 he must be taken to have inquired into the nature of those
 
 OF A CONFIRMATION. 
 
 The operative words are, " ratified and con- 
 firmed. ;" though for safety, it is usual and pru- 
 
 objections, and cannot afterwards raise a question as to the 
 extent of his information. This rule has received a practical 
 illustration in the great case of Chobnondeley v. Clinton, 
 where a deed of confirmation, dated 1794, was held not to 
 confirm the title generally, but only as to the particular point 
 for which it was applied for and obtained. 2 Meriv. 355. A 
 confirmation to a tenant of the freehold or inheritance cannot 
 be so worded as to have a less operation than that of con- 
 firming the whole estate ; and therefore a confirmation to 
 such a tenant, either of the lands or of his estate in them for 
 any term or period, is a confirmation of the whole freehold 
 or fee. A disseisor always acquires by the disseisin a 
 tortious fee simple ; a confirmation therefore to him, however 
 qualified, is a confirmation of the whole fee. It is otherwise 
 in the case of a term of years. A confirmation may be made 
 of part of the term. The reason of the distinction is, that 
 an estate of freehold or inheritance is considered as integral 
 and indivisible ; but as years are several, the term which is 
 composed of them is necessarily fractional and separable, 
 and may consequently be confirmed in part by using proper 
 expressions for the purpose. This confirmation, however, 
 must be by apt words ; for if a person confirms the lease, or 
 demise, or estate of the tenant for years for part of the term, 
 as the words ' lease,' ' demise,' or ' estate,' signify all the 
 interest or term of years which the tenant has, the subsequent 
 words are not considered as qualifications of the former words, 
 but as absolutely repugnant to them ; and as both cannot 
 stand together, the law prefers the first, which are the prin- 
 cipal, to the other, which are only secondary, and thereby 
 the whole term will be confirmed. The confirmation should 
 be ' of the land for part of the term,' if it be intended that 
 it should have a partial operation merely. Co. Litt. 297, a, 
 and n. (1). 1 East, 502. Ski?i. 543. 
 
 z 
 
 337
 
 338 OF A CONriRMATION. 
 
 dent to insert the words ''given and granted" 
 also. 
 
 [Story \. John- [But it IS not nccessary that formal words 
 
 son, 2 You. §",,11 11 . f, . 
 
 Co/. 586.607.] should be employed to constitute a confirmation ; 
 it may be effected by a recital, or a recognition 
 of the voidable estate in a deed, executed by the 
 person who has the power to confirm.]
 
 339 
 
 CHAP. VIII, 
 
 OF A SURRENDER. 
 
 A SURRENDER is the yielding up, or return- 2 BLCom.326. 
 ing, or relinquishing, ot a smaller estate, to him p. 300. 
 who has a greater estate in the «anie lands in 
 remainder or reversion immediately expectant 
 upon such smaller estate ;* for if there be au 
 estate to A. for life, remainder to B. for life, 
 remainder to C. in fee, A. cannot surrender to 
 C. by reason of B.'s mediate or intervening 
 estate.'f If A. pass his estate to C. it will not be 
 
 * It differs from a release in that the smaller estate is con- 
 veyed to the greater, (and for this purpose every estate in 
 reversion is considered greater than the particular estate in 
 possession) whereas in a release the greater estate is conveyed 
 to the less. That a term for years in possession will merge 
 in a term for years in reversion, has been distinctly acknow- 
 ledged in Stephens v. Bridges, 1 Madd. Sg- Geld. 66 ; et vide 
 Tamlyn on Terms, 200. Cro. Eliz. 302. 3 Prest. Conv. 193. 
 [See Cru. Dig. Vol. 6, p. 476, s. 40, 4 ed. 1835.] 
 
 f Therefore, where an estate was limited to A. for life, 
 remainder to B. for life, remainder to C, the eldest son of 
 A., in fee ; and A. in the lifetime of B., in consideration of an 
 annuity of 14/. to be paid by the said C. to him out of the 
 premises, and for other considerations, did, by deed, give, 
 grant, surrender, and confirm unto the said C. and his heirs 
 
 z 2
 
 340 OF A SrU RENDER. 
 
 a surrender, any more than if made to a stranger, 
 who had nothing in the lands. 
 
 As a surrender is, generally, for the advantage 
 of the surrenderee, the law will often presume 
 his assent to it ; but the particular tenant cannot 
 enforce it upon him nolens volens, and so get rid 
 of his obligations ; and it is therefore prudent 
 to make the surrenderee a party, and express his 
 consent, that it may be apparent on the very face 
 of the deed.* 
 
 A surrender might have been by parol ; but 
 
 the said premises ; it was held, that the deed could not 
 operate as a surrender according to the intent of the parties, 
 upon account of B.^s intermediate estate for life ; but that 
 there being a consideration of blood between the father and 
 son, the conveyance should operate as a covenant to stand 
 seised. Doe dem. Woolley v. Pickard, 1 Saund. 236, c. note. 
 
 This principle will also illustrate the common limitation to 
 trustees to preserve contingent remainders. It has long been 
 settled, that the estate of the trustees, being confined to the 
 life of the preceding tenant for life, is a vested estate of free- 
 hold ; and, therefore, that the tenant for life cannot surrender 
 to the ulterior remainderman on account of this interposed 
 estate. Dormer v. Fortescue, 3 Atk. 123, 135 ; 4 Bro. P. C. 
 353, 505 ; Co. Litt. 337 b. (2). 
 
 * As there is necessarily a privity of estate between the 
 surrenderor and surrenderee, no livery of seisin is necessary 
 to perfect a surrender. 2 Bl. Com. 326. In short, no other 
 act is requisite to perfect a surrender than the bare grant : 
 the consent of the surrenderee to accept the surrender is 
 presumed till the contrary be shewn. Thompson v. Leach, 
 2 Salk. 618.
 
 OF A SURRENDER. 341 
 
 now, by the Statute of Frauds it must be by deed 
 or note in writing, signed by the surrenderor, or 
 his agent, lawfully authorized by writing, or by 
 act or operation of law.* 
 
 * Upon this clause it was held by Lord C. B. Gilbert, in 
 Magennis v. M^Culloch, Gilb. Eq. Ca. 236, that a lease for 
 years could not be surrendered by simply cancelling the 
 indenture ; there must be a writing, signed by the party; but 
 a deed was not absolutely necessary, the words of the statute 
 being by deed or note in writing. Fanner v. Rogers, 
 2 IVils. 27. If the surrender were made by note in writing, 
 there was no occasion for a stamp-duty before the last stamp- 
 act; but by Stat. 55 Geo. 3, c. 184, a stamp is required to be 
 impressed on a surrender by whatever means it be accom- 
 plished. 
 
 [An imperfect notice to quit by a tenant from year to year 
 might be treated by the landlord as a surrender in writing, 
 under the third section of the Statute of Frauds. Aldenburgh 
 V. Peaple, 6 Car. ^' P. 212; it could not, however, so operate, 
 if the notice to quit is for a future day ; because there cannot 
 be a surrender to operate in future. Weddell v. Capes, 
 1 3Iee. ^ Wei. 50. Doe v. Milward, 3 lb. 328. But now 
 by the fourth section of the 7 4" 8 Vict. c. 76, it is enacted 
 that surrenders in writing must be by deed, although an 
 agreement to surrender may be valid, as an agreement to 
 execute a surrender. 
 
 By the stat. 1 W. 4, c. 65, ss. 12, 13, repealing 29 Geo. 2, 
 c. 31, infants femes covert and committees of lunatics are 
 enabled, under the direction of the Court of Chancery, to 
 surrender leases for the purpose of obtaining renewals.] 
 
 Surrenders by implication remain, it is presumed, as they 
 did at common law, being expressly excepted out of the 
 Statute of Frauds, [and the above statute of 7 <§• 8 Vict, 
 c. 76, mentioning only surrenders in writing.'] Thus if a 
 lessee for life accept from the lessor a lease in writing, 
 though it be only for years, the estate for life will be 
 surrendered and merged in law; for the lessee, by his
 
 342 OF A SUHUENDER. 
 
 Sand. Uses, The Operative words in a surrender are, " sur- 
 
 rendered and yielded up ;" though they are usually 
 preceded by the word granted. 
 
 acceptance of the second lease, admits that the lessor had 
 power to grant it, which he could not have unless the former 
 lease were merged. Davison v. Stanley/, 4 Burr. 2210. 
 Roe dem. Berkeley v. Archbishop of York, 6 East^ 86. And 
 it is equally a surrender, though the second lease be limited 
 to commence at a future day five's case, 5 Rep. 11, b. S. C. 
 Cro. Eliz. 522. Mellow v. May, Moore, 636) ; or upon 
 condition to be void upon a contingency, which afterwards 
 happens so as to render the new lease void ab initio; 
 Fulmerston v. Steward, Plow. 107, b. And a surrender in 
 law is sometimes of greater force than a surrender in deed ; 
 as where a lease for years is made to begin at Michaelmas 
 ■ next, this future interest cannot be expressly surrendered, 
 because it is not an estate, and there is no reversion wherein 
 it may drown : but by a surrender in law it may be merged ; 
 as if the lessee before Michaelmas takes a new lease for years, 
 either to begin presently or at Michaelmas, this acceptance 
 of the second, is a surrender in law of the former lease. 
 Co. Litt. 338, a. But if a lessee for years accept a new lease 
 by indenture of part of the land previously leased, it is a 
 surrender only for that part, and not for the whole. 2 Roll. 
 Abr. 498, (M.) pi. 1 ; and see further, as to surrender in 
 law, the case of Doe v. Johnston, 1 M^Cl. 8f Yo. 141. [See 
 further on surrenders, ante, pp. 56, 57.] 
 
 \_Mr. Preston in discussing the doctrine of implied surren- 
 ders, observes, that the cases seem to have been determined 
 on the ground of inconsistency in the several contracts ; 
 because it is impossible that the former contract can continue 
 in force, and the second operate according to the intention of 
 the parties as expressed in that contract ; and that, from this 
 inconsistency, the law draws the conclusion, that the former 
 contract has been abandoned and annulled, the parties 
 having entered into a new agreement. 3 Comu 162. ed. 3. J
 
 •Mli 
 
 CHAP. IX, 
 
 OF AN ASSIGNMENT. 
 
 An assignment is, properly, the transfer oi' 2 bl Com,, 
 one's whole interest in ani/ estate ; but it is 
 now generally appropriated to the transfer of 
 chattels, either real or personal, or of equitable 
 interests* 
 
 * If the assignment be of all the assignor's estate and 
 interest, to hold from a day to come, there is an obvious 
 repugnancy between the premises and habendum ; the former 
 conveying all the assignor's interest in the term, and the 
 latter permitting the previous portion of it to remain in him. 
 Hence it has been supposed that an assignment i?i futuro is 
 void ; and such perhaps is its effect at law, if the premises 
 correspond with the habendum : but it is a rule, that if the 
 whole interest be conveyed by the premises, the habendum 
 cannot limit a less estate. Thus if lands are conveyed to 
 J. S. and his heirs, habendum to him for life ; J. S. has an 
 estate in fee by the premises, and the habendum is void. 
 8 Co. 56, b. 2 Co. 24, a. Plotvd. 152, 153. 2 Bac. Abr. 
 194. So if there be an express estate limited to A. in fee 
 by the premises, habendum after the death of the grantor to 
 A. in tail ; in this case the habendum is void, and A. shall 
 take a present estate by the premises. Carter v. 3Iadgwick, 
 3 Lev. 339 • et vide Lilley v. Whitney, Dyer, 272, a, pi. 30. 
 2 Roll. Ab. 60, pi. 4. Hob. 171. Moor. 881, pi. 1236. 
 Therefore, as every assignment must necessarily embrace
 
 344 OF AN ASSIGNMENT. 
 
 Ante,h.2,c.4. An assignment of a term differs from an under- 
 lease, in that the former is the parting with the 
 whole, and the latter with a portion only, of one's 
 interest or estate* 
 
 The operative words are, " assigned, trans- 
 ferred, and set over ;" though usually the word 
 *■'' granted" is inserted, and in the assignment 
 of chattels, the words " bargained and sold" 
 also. 
 
 the whole estate and interest of the assignor, it cannot in 
 fact convey an interest m futuro, although it purport so to 
 do on the face of it. 
 
 * And that the former, not the latter, portion of the term. 
 The Statute of Uses does not apply to chattel interests, so 
 that the case cannot be helped by resulting use ; and it is 
 apprehended, that if the former portion of the term be clearly 
 and unequivocally reserved to the assignor, the assignment is 
 void ; for as the term does not immediately pass out of the 
 grantor, the assignment operates nothing.
 
 345 
 
 CHAP. X. 
 
 OF A DEFEASANCE. 
 A DEFEASANCE is a Collateral deed, made at 2 bi. Cumm. 
 
 , . • 1 p (T" 1 527. Touchst. 
 
 the same time with a leoiiment or other convey- ch. 22, p. 396. 
 aiice, containing certain conditions, upon the 
 performance of which the estate then created 
 may be defeated or totally undone. 
 
 A defeasance is now, however, seldom resorted 
 to, as it is much preferable to make the con- 
 ditions apparent in the deed, so that the deed 
 shall be complete in itself. For, as the convey- 
 ance is absolute, should the defeasance, which is 
 contained in a separate instrument, be lost, the 
 proof of the condition might be difficult, and 
 often impossible.* 
 
 [* Defeasances are of two kinds — those which relate to 
 estates of freehold and inheritance, and those which affect 
 chattels and executory interests, such as rents, annuities, 
 conditions, warranties, covenants, and the like. Touchst. 396. 
 Defeasances of the former class must be made at the time of 
 the creation of the estates to be thereby defeated. But the 
 latter kind may be made at any time after, so they be eodem 
 modo, and with the consent of all those who were parties to 
 the creation of the chattels or other interests to be defeated
 
 346 OF A DEFEASANCE. 
 
 or annulled. For the other requisites of a defeasance, see 
 Touchst. 397. The learning of a defeasance is now not 
 unfrequently resorted to in order to obviate the consequences 
 of giving a license to assign, to a lessee whose lease contains 
 a clause against assigning without the lessor's consent ; for, 
 according to Dunipor's case, 4 Co. 119, a license, once given, 
 entirely discharges the condition. The mode of effectuating 
 this is mentioned in a former note, p. 40 — 41. See also 
 2 Pres. Conv. 167, 199, and Form VII. Appendix, ed. 3.]
 
 347 
 
 CHAP. XI. 
 
 OF A COVENANT TO STAND SEISED.* 
 A COVENANT to Stand seised to the use of" 2 bi. Conm. 
 
 , ^ i 1 1 f 338. Touchst. 
 
 anotJier must be by deed; tor a covenant cannot 511,512. 
 
 • 1 7T< ill 'If Sand. U>,es,'Z\. 
 
 be by parol, it must be by a person seised 01 78. See also 
 lands or tenements; and, consequently, cannot coT'fo.J 
 
 embrace an equity, or right, or contingency, Ike. 
 
 2 Lev. 9. 
 
 [* A covenant to stand seised is one of those conveyances yide i,tf,.fi^ 
 which do not operate by transmutation of possession ; that is, p*": Lease and 
 it does not transfer the seisin to another to raise the use in (a). 
 the covenantee, but that seisin remains in the covenantor, he 
 standing seised to the use of the covenantee ; so that if in 
 consideration of blood, //. covenants to stand seised to B. 
 and his heirs to the use of C. and his heirs, B. will take the 
 use, and C^. only a trust estate. A bargain and sale is another 
 conveyance not operating by transmutation of possession or 
 seisin, and so is an appointment under a power to appoint 
 the use. Vide supra, p. 245, n,, pp. 249, 265 — 267. But 
 bargains and sales under the Statute of Uses must be dis- 
 tinguished from bargains and sales by executors having 
 authorities to sell under wills, and by persons having authority 
 under acts of Parliament, as commissioners under the Bank- 
 rupt Act, &c. ; for these must be considered as common law 
 assurances, and pass a seisin at common law, upon which 
 uses may be declared. Prest. ;3 Abst. 112, 124, supra, 
 p. 274, n.]
 
 348 OF A COVENANT TO STAND SEISED. 
 
 though it may be of a reversion or vested re- 
 mainder ; for the reversioner or remainderman 
 is in the seisin. It [could not, previously to the 
 late statutes 3^4 W. 4, c. 74, as to England, 
 and 4^5 Ih. c. 92, as to Ireland] he by a tenant 
 in tail, except as to his own life.* It must be 
 in consideration of marriage or blood ; for a cove- 
 nant to stand seised to the use of a stranger 
 would be void. It must not be in consideration 
 of money : for that would be a bargain and sale. 
 But it is not necessary that the consideration of 
 blood be expressed : for if a person covenant to 
 stand seised to the use of his wife, (a) son, or the 
 
 * A covenant to stand seised is an innocent assurance ; , 
 and [before the above statutes were passed, it was] a rule, 
 that an estate granted by a tenant in tail to commence after 
 his death by an innocent assurance was void ; and it followed, 
 that if a tenant in tail covenanted to stand seised to the use 
 of himself for life, with remainder over, or to uses to com- 
 mence after his decease, such covenant, estate, and remainder 
 were void, because the title of one issue would commence 
 before any seisin could arise under the uses or the remainders, 
 Doe v. Whittingham, 4 Taunt. 20. [But now, if the covenant 
 to stand seised be inrolled and in other respects in conformity 
 with the above statutes, it is conceived that it will be as 
 effective for the purpose of barring the entail and remainders 
 as any other mode of assurance; ss. 40, 41, E. 38, 39, I.] 
 But if a tenant in fee covenants to stand seised to the use of 
 himself for life, with remainder to J. S., to whom he is re- 
 lated, the covenant will be good for the sake of the remainder. 
 Per Holt, C. J., in 3Iachell v. Clarke, 2 Ld. Raym. Ti'^, et 
 vide 1 Pres. Abst. 390, 406. 
 
 («) [In a covenant to stand seised, in consideration of an 
 intended marriage, to the use of the wife for life, and in
 
 OF A COVENANT TO STAND SEISED. 349 
 
 like, it will be sufficient ; as tlie consideration 
 would be apparent.* A person may covenant 
 
 default of issue of the marriage, to the right heirs of the wife, 
 the latter limitation takes effect according to the rule in 
 Shelley's case, by vesting the remainder in fee in the wife. 
 Hood V. Pimm, Tyr. ^ G. 1118.] 
 
 * It has long been vexata questio, whether this consideration 
 may be averred in the teeth of a deed which professes to have 
 been made in consideration of money only. If the motive 
 inducing the deed be a sum of money, and " divers other 
 good causes and considerations," then the money consideration 
 failing, the divers other considerations may fairly enough be 
 entered into ; but if the deed be made in consideration of 
 money alone, it imports that no other consideration superin- 
 duced the conveyance. The language of Lord Hardivicke on 
 this point is, " where any consideration is mentioned, as of 
 love and affection only, if it is not said also, and for other 
 considerations, you cannot enter into proof of any other ; the 
 reason is, because it would be contrary to the deed ; for when 
 the deed says, it is in consideration of such a particular thing, 
 that imports the whole consideration, and is a negative to any 
 other." Peacock v. Mo7ik, 1 Ves. 127. The rule, however, 
 is thus laid down in CromweVs case, 2 Co. 76, a, "when a fine, 
 feoffment, or other conveyance imports an express consider- 
 ation, a man may aver by word another consideration, which 
 stands with the consideration expressed ; but the parties cannot 
 by parol make any averment against the consideration ex- 
 pressed ;" and this expression of the rule seems to be prefer- 
 able to that proposed by Lord Hardwicke, Doe v. Sherlock, 
 1 Fox Sf Smith, 79. But it is not sufficient to prove a 
 kindred merely, it must also be proved that the deed was 
 wholly or in part founded on the consideration of that 
 kindred ; the mere existence of the fact of kindred does not 
 necessarily imply that the deed was founded upon it, especially
 
 350 OF A COVENANT TO STAND SEISED. 
 
 to stand seised to an use m fntnro^ as from 
 Christmas next ; or, if l»e be seised in fee- 
 
 where a valuable consideration is expressed, and no other 
 consideration is referred to by the deed. 
 
 It is not exactly settled what degree of relationship is 
 necessary to support a covenant to stand seised. The 
 kindred between second cousins would perhaps be sufficient, 
 if the fact were noticed in the instrument ; but if the relation- 
 ship be not mentioned in the covenant, then it is questionable, 
 whether the tie could be considered so strong between second 
 cousins, as to induce a valuable gift from the oue to the other 
 of them, without the accompaniment of friendship, acquaint- 
 ance, or some such cause ; and it is to be recollected, that 
 friendship, acquaintance, &c. form neither good nor valuable 
 considerations in the eye of the law ; besides it would be 
 extremely difficult to presume, that a kindred comparatively 
 so remote as that between second cousins was the consideration 
 of the deed without some evidence of a wish on the part of the 
 covenantor to keep the property in his family, or that he had 
 no nearer relation, or the like. In Goodtitle v. Petto, the 
 lessor of the plaintiff was the nephew of the covenantor, and 
 the Court was of opinion that he had title to recover, because 
 he was named in the deed ; and though it was not stated that 
 he was nephew to the covenantor, yet being expressly named, 
 he might aver himself within the consideration. 2 Stra. 934. 
 Mr. Sanders says (2 U. 81), that if a man covenant to stand 
 seised to the use of his wife, son, or cousifi, without saying in 
 consideration of the natural love he bears towards them, the 
 covenant will raise the use ; citing BedelVs case, 7 Co. 40, 
 which is an indifferent authority to this purpose, the relation- 
 ship in that case being between a father and son, and the word 
 cousin being evidently thrown in by the reporter ; at all events 
 it is but a dictum, and the books do not afford an instance of 
 a covenant being brought before the Courts, supported merely
 
 OF A COVENANT TO STAND SEISED. 351 
 
 simple, that his heirs shall stand seised after his 
 decease. 
 
 by an averred relationship between two cousins of any 
 degree. 
 
 If a man covenant to stand seised to the use of himself 
 for life, with remainder to trustees for supporting contingent 
 remainders, with remainder to his first and other sons in tail, 
 if the trustees are not the covenantor's relations, no use will 
 vest in them, but the remainders over will be good. This is 
 said to be one reason why covenants to stand seised have 
 fallen into disuse. 2 Sand. U. 83. 
 
 From this chapter it will appear, that covenants to stand 
 seised are always voluntary. And it is an invariable rule of 
 the Court of Chancery, " never to decree specific performance 
 of a voluntary covenant, which is in equity as no covenant at 
 all, and only a nominal one in law." 2 Eden, 294. It has 
 been expressly decided, that limitations in a marriage settle- 
 ment to the brothers of the settlor are not good against a 
 subsequent purchaser for valuable consideration. Johnson v. [IV. Cru. Dig. 
 Legard, 3 Madd. 283. See also Sutton v. Chetwind, 3 Mer. ~~ > ^ • -I 
 248. Hence [if a person having covenanted to stand seised 
 of freehold lands, were to covenant to surrender copyhold to 
 similar uses, the latter covenant would be void against a pur- 
 chaser for value ;] and a covenant to assign leaseholds in a 
 similar manner would, it is conceived, be equally futile against 
 a subsequent assignment for valuable consideration ; and whe- 
 ther the purchaser has notice of the previous covenant or not, 
 will not make any difference, as appears in the chapter on 
 Gifts, ante, p. 306. As to the freeholds, the covenant is 
 executed by the Statute of Uses ; but as to the leasehold and 
 copyhold, it is executory, and a surrender or assignment can 
 only be enforced in a Court of equity where the consideration 
 is such as that Court acts on. 
 
 A power to appoint to any person generally cannot be 
 reserved in a covenant to stand seised, for between the 
 appointee and the covenantor there may be no relationship
 
 352 OF A COVENANT TO STAND SEISED. 
 
 The proper word is " covenant" ; but other 
 words ma}- be tantamount ;* as, if" a person 
 
 whatever. If, however, the power be restricted to an appoint- 
 ment between the relations of the covenantor, it is generally 
 considered "that it will be good. Goodtitle v. Petto, Fitzg. 
 2 Barn. 10. 2 Stra. 934. 
 
 * " Dedi et concessi are general words, and may amount 
 to a grant, feoffment, gift, release, confirmation, surrender, &c. ; 
 but a release, confirmation, or surrender, &c. cannot amount 
 to a grant, &c., nor a surrender to a confirmation or release, 
 for these are peculiar conveyances destined to a special end." 
 Co. Litt. 400. It is an established rule, that a deed shall 
 never be laid aside as void, if by any construction it can be 
 made good. Hob. 277. Earl of Clanricardes case. Shep. 
 Touch. 82, 83. Therefore, where a man seised in fee of a 
 rent, granted it by deed to one who was his kinsman, and 
 there was an attornment to the grant, but it was made by a 
 person who was not the real tenant of the land, and as such 
 void ; though the intent appeared that the deed should operate 
 as a grant at common law with an attornment, yet since it 
 could not pass tliat way, it was adjudged that the deed being 
 made to a relation should operate as a covenant to stand seised. 
 Sanders v. Saville, 3 Lev. 372. So where a man by deed 
 gave and granted land to another, with a letter of attorney to 
 make livery, but which was never made ; yet as the grant was 
 to a relation, it was held to operate as a covenant to stand seised. 
 Osman v. Sheafe, 3 Lev. 372. So a deed made by a man to 
 his daughter, by way of bargain a?id sale, but which could not 
 take effect as such for want of a money consideration, has 
 been held to operate as a covenant to stand seised. Crossing v. 
 Scudamore, 1 Vent. 137 ; and see Baker v. Lade, 3 Lev. 
 291. S. C. 4 Mod. 150. Wats v. Dix, Sty. 204. BedelFs 
 case, 7 Rep. 40, b. 2 Roll. Abr. 786, (O), pi. 1. So a deed 
 intended to be a feoffment, but which was void as such for 
 want of livery, being made to a relation of the grantor, has
 
 OF A COVENANT TO STAND SEISED, 
 
 '* bargain and sell" in consideration of blood or 
 
 marriage, it will be good as a cooenant to stand 
 seised. 
 
 been held to operate as a covenant to stand seised. -* Tomlinson 
 V. Dighton, 1 P. Wms. 163. Arg. 2 Wms. Saund. 96, a. 
 n. (1). And it has been decided, that a deed with words of 
 release may be either pleaded as a grant, or as a covenant to 
 stand seised to uses. See Roe v. Tranmarr, Willes, 682, and 
 2 Wils. 75. [In the recent case of Doungsworth v. Blair, 
 I Keen, 795, the question was raised but not settled, whether 
 an instrument, defective as a release or other assurance, can 
 operate in equity as a covenant to stand seised where the 
 covenantee is a stranger in respect of blood or marriage to the 
 covenantor, but connected by marriage with the sister of the 
 covenantor for whose use the covenant to stand seised is made.] 
 It is a question whether the words limit and appoint in a deed 
 may in the absence of the word 'grant,' operate as words of 
 grant, so as to pass a reversion. [In the case of Shove and 
 others v. Piiik, 5 T. R. 124, Lord Kenyan, C. J. said, that "if 
 it were necessary to decide the point, he did not see why the 
 instrument in question, which contained the words ' limit and 
 appoint' but not ' grant,' should not operate as a grant of the 
 reversion. It had never been held necessary, that the word 
 * grant' should be used in a grant, it being sufficient if the 
 intention to grant were manifest by a deed." In the cases 
 cited below the word ' grant' occurs, but to say, that because 
 it is the technical operative word, no other word will be equally 
 efficacious, would seem to assign a magic to words, which the 
 good sense of the Courts has repudiated, the intention of the 
 parties, if it can be legally carried into effect, being the rule of 
 the Courts in the construction of written instruments : et vide 
 per Lord Mansfield in Goodtitlew. Bailey, Cowp. 600.] So 
 an instrument in the form of a grant may operate as a sur- 
 render ; and it was ruled by T^ord Kenyan at the Stafford 
 
 A A 
 
 353
 
 3.04 OF A COVENANT TO STAND SEISED, 
 
 As soon as the use is raised, it is executed by 
 the statute without any enrolment, though the 
 use be in fee. 
 
 assizes, that an instrument in the form of a surrender might 
 operate as a covenant to stand seised to uses. 3 Prest. Abst. 
 22. Where A. being possessed of a term of 999 years by lease 
 and release granted, bargained, sold, and demised it to 
 trustees, on certain trusts, with remainder to the heirs of his 
 wife, and covenanted that he was seised in fee ; it was held, 
 that though the settlement could not operate as a lease and 
 release, yet A. being in possession, and the word " grant" 
 being in the deed, it should take eft'ectas a grant or assignment 
 of all his interest at law. Marshall v. Frank, Prec. in Ch. 
 {Doe V. Cole, 480. And a [freehold lease for lives containing the words, 
 o^-^T' ■ '"*■ demise, grant, and to farm, let,] has been held to operate as a 
 grant in a case where there was a recital of an existing estate 
 so as to create a reversion ; and it is observable, that a grantor 
 cannot gainsay an averment in his own deed ; by that he is 
 estopped. [See Right v. Bucknell, 2 Bar. Sf Adol. 278.] 
 Doe V. Sherlock, 1 Fox ^ Smith, 79. Doe v. Saunders, ib. 18, 
 infra, p. 360. Bees v. Lloyd, Wightwich, R. 123. See also 
 the late case of Haggerston v. Hanbury, infra, p. 356 — 357 ; 
 where a bargain and sale, though enrolled, was held to operate 
 as a grant, there being an outstanding term for years. 
 
 [In Spyve v. Tophani, 3 East, 115, a deed intended as a 
 release could not so operate, because the lease for a year was 
 made to Bass the trustee, and the release by mistake to 
 Tophatn the purchaser (instead of to Bass) and his heirs, to 
 the usual uses to bar dower, the Court of K. B. held the deed 
 good as a grant ; the word ' grant' was used in the operative 
 part of the release. By the 6th section of the 7 SfS Vict. c. 76, 
 it is enacted, that the word ' grant' shall not have the effect of 
 implying a warranty, or right of re-entry, or of creating a 
 covenant by implication, except in cases where by act of 
 Parliament, such effect shall be given to the word ' grant.']
 
 355 
 
 CHAP. XII. 
 
 OF A BARGAIN AND SALE.* 
 
 A BARGAIN and sale differs from the cove- 2 bi Comm. 
 
 333 
 nant to stand seised, as it must be in considera- Touckst. c. 10, 
 
 Hon of money, though that consideration be only 2 snnd. Uses, 
 
 nominal. If the use to be raised by it be for a 
 
 freehold interest, it must be inrolled.'\ In this, 
 
 as in the last species of conveyance, there must 
 
 be a person to stand seised ; and, therefore, in the See2 Leon. 
 
 case of a corporation, some other mode should 
 
 be adopted. There must be an estate in him of 
 
 which he has the seisin, as an estate of freehold 
 
 in possession, reversion, or remainder ; not a mere 
 
 right, contingency, or possibility ; and there must 
 
 be a person capable of making the use. 
 
 And it has been already observed, that an use Ante, p. 249. 
 cannot be limited on a bargain and sale to any 
 but the bargainee. J 
 
 * Vide supra, p. 347, note. 
 
 j" [It is conceived that if a deed is intended to operate 
 strictly as a bargain and sale and not under the 7 4" 8 Vict, 
 c. 76, it must be enrolled, notwithstanding the second section 
 of the act, vide supra, 250, 296.] 
 
 J Before the Statute of Uses, a contract for the sale of 
 A A 2
 
 356 OF A BARGAIN AND SALE. 
 
 The operative words are " bargain and sell." 
 
 land raised a use, as in this day it raises a trust ; to convert 
 that use into a legal estate, an actual conveyance was requi- 
 site ; but now the Statute of Uses supplies that conveyance, 
 and transfers the seisin of the vendor to the use of the 
 vendee, who having thus the seisin and the use, becomes 
 seised of the legal estate, without any further conveyance. 
 Immediately after the Statute of Uses came the Statute of 
 Enrolments, 27 H. 8, c. 16, which requires every bargain 
 and sale of a freehold interest to be enrolled in Chancery 
 within six months after its date ; consequently, if the common 
 agreement for purchase were enrolled on a sufficient stamp, 
 it would operate as a valid conveyance by way of bargain and 
 sale without any further legal instrument. [This last pro- 
 position, it is submitted, is at least questionable : the statute 
 27 H. 8, c. 16, requires that an instrument to operate as a 
 bargain and sale must be indented and sealed.] From these 
 observations, it is plain, that a use cannot be surmounted on 
 the use thus executed by the statute in the bargainee, for 
 that would be a use upon a use, and therefore a mere trust. 
 
 In a late case, a tenant in tail, in order to make a tenant 
 to the prcBcipe for suffering a recovery, by indenture duly 
 enrolled, granted bargained and sold the lands of which he 
 was seised in tail to two persons to the use of one of them, 
 and that one was made the tenant to the prcecipe, upon which 
 a recovery was suffered. An objection was afterwards taken 
 to the recovery, on the ground that the tenant [was not solely 
 seised of the entirety, the bargain and sale conveying the use 
 or legal estate to the two bargainees, as joint-tenants in fee, 
 and that the second use to the tenant to the prcecipe was 
 inoperative, so that he had the legal estate of one moiety only 
 when the recovery was suffered.] This objection was con- 
 sidered fatal, but there being an outstanding term, the Court 
 of King's Bench certified, that the bargain and sale operated 
 as a good grant of the reversion, and passed the freehold of
 
 OF A BARGAIN AND SALE. 357 
 
 the entirety to the tenant to the prcecipe ; and that, conse- 
 quently, the recovery was valid and effectual. Haggerston 
 V. Hanhnry, 5 Barn. ^~ Cress. 101. 
 
 The enrolment of a bargain and sale must be made within 
 six lunar months from the day of the date, if the deed have 
 a date, and if not, within six lunar months from the time of 
 its delivery. Hob. 1 40. 2 Inst. 673. Shep. Touch. 223. It 
 may be made either upon the day of the date (2 Inst. 674), 
 or upon the last day of the six months, reckoning the day of 
 the date exclusively. Thomas v. Popham, Dy. 218, b. The 
 legal estate is vested in the bargainee by the Statute of Uses 
 upon the execution of the deed ; but the Statute of Enrolment 
 obstructs the operation of the conveyance until it is enrolled. 
 The enrolment, however, has, for most purposes, a relation 
 to the delivery of the deed (2 Inst. 875), and thereby avoids 
 all mesne incumbrances and conveyances made by the bar- 
 gainor between the delivery and enrolment. Mullery v. 
 Jennings, 2 List. 674. Thomas v. Pophatn, Dyer, 218. 
 Owen, 70. 
 
 A bargain and sale being what was termed an innocent 
 assurance, passed merely what the grantor might lawfully 
 convey. It could not, therefore, work a discontinuance 
 (Gilb. Uses, 297. Co. Litt. 332, b), or create a forfeiture. 
 Gilb. Uses, 102. Hard. 416. [But by the statute 7 Sr 8 Vict, 
 c. 76, s. 7, no conveyance can have a tortious operation by 
 creating an estate by wrong.] If a tenant in tail conveys 
 in fee by bargain and sale, the bargainee has a base fee, 
 determinable on the death of the tenant in tail by the e?itry 
 of his issue. Seyt7ior's case, 10 Co. 95. Machil v. Clark, 
 2 Salk. 619. 1 Atk. 2. Whether a tenant in tail afterwards 
 could have levied a fine to bar the issue is a point which is 
 noticed in the chapter on Fines. 
 
 From the general characteristics of a bargain and sale, as 
 explained in this chapter, it is manifest, that such an instru- 
 ment cannot contain a power of appointment generally. To 
 support a bargain and sale, a money consideration must pass 
 between the bargainor and bargainee ; and to the perfection
 
 358 OF A BARGAIN AND SALE. 
 
 of this instrument, the consideration must be paid at the 
 time the deed is executed, otherwise no use will arise, and 
 then nothing passes from the bargainor, and so the deed is 
 completely nugatory at the time it is executed. Now between 
 the bargainee and an appointee under a power there cannot 
 pass a present consideration, and consequently no use can 
 arise ; and as the seisin and the use are not separated, the 
 statute cannot operate, consequently nothing is drawn out of 
 the bargainor, neither the use by the deed, nor the seisin by 
 the statute. The deed and the statute therefore operate 
 nothing, and the whole is futile and void. Et vide Gilb. 
 Uses, 46.
 
 359 
 
 CHAP. XIII 
 
 OF A LEASE AND RELEASE.* 
 
 We have already remarked, that [irrespectively 2 bi. Comm. 
 of the 44-5 Vkt. c. 21, and 7 A- 8 Ih. c. 76,1 a ihes,m. 
 
 Co. Litt:21 1 , b. 
 
 [* This is another of those conveyances which are said to 
 operate by transmutation of possession or seisin. The bargain 
 and sale for a year gives a use, to which the statute annexes 
 the possession, for a year ; and then, if the release be made 
 to the bargainee or lessee for a year, to uses, he thereby 
 takes a momentary interest, called the seisin, to serve the 
 uses limited ; and which are at one and the same instant 
 executed in the cestui que use. If there are no uses, the 
 release being made to the bargainee or lessee for a year in 
 fee, the statute is not brought into operation upon the 
 release ; but the releasee takes by the common law, by way 
 of enlargement of estate. The student will mark the dis- 
 tinction between the legal possession of the freehold which 
 gives the freeholder the right to take the rents and profits 
 which is called his seisin, and that seisin, above alluded to, 
 which derives its peculiar character from the Statute of Uses : 
 the latter confers a momentary interest in the feoffees, re- 
 leatees, or grantees, merely to conduct the use in its transit 
 through them to the cestui que use, in whom the use is 
 executed instanter by the operation of the statute : the uses 
 thus executed confer the legal estate, eitlier in possession, 
 ren)aiiuler, or contingency, according to the limitations. 
 Notliiiig remains in the feoffees, he. ; though, where the uses
 
 360 OF A LEASE AND RELEASE. 
 
 release can only be made to a person in the pos- 
 session or seisin of the lands ; and, therefore, if a 
 conveyance of the freehold is intended to be made 
 to a stranger, without the formalities of livery, 
 an estate for a year, or other definite time, may 
 be made to him in order to give him such pos- 
 session or seisin, and so make him capable of 
 receiving a release.* This may be done by a 
 conveyance at common law, or under the Statute 
 of Uses. 
 
 If an estate for a year be granted at common 
 
 are in contingency, some are of opinion that a possibility of 
 seisin remains in the feoffees, &c. to serve or supply the 
 contingent uses as they arise. Supra, 252.] 
 
 * In Ireland, the actual existence of a lease for a year has 
 not for many years been required ; it was sufficient if the 
 release contained the usual reference to it. By the 9 G. 2, 
 c. 5, s. 6, [1 G. 3, c. 3,] (Irish stat.) it is enacted, that in all 
 cases the recital of a lease for a year in the deed of release 
 shall be deemed and taken to be full and sufficient evidence 
 of such lease. In a late case, the words " in his (the re- 
 leasee's) actual possession, now being by virtue of a lease 
 made pursuant to the statute," were held an insufficient 
 recital of the lease within this statute. The lands, however, 
 being in lease, the release was held to operate as a grant of 
 the reversion, from the ivords " demise, grant, set, and to 
 jarm let^ notwithstanding there was a covenant in the 
 instrument to make ^future grant. Doe v. Saunders, 1 Pox 
 Sf Smith, 18. [Now by the 7 4" 8 Viet. c. 76, which has 
 superseded the 4 4" 5 Vict. c. 21, the lease for a year is 
 rendered unnecessary, and it applies to corporations as well 
 as to individuals, ss. 1 & 2. See chapter Corporations, and 
 supra, 250.]
 
 OF A LEASE AND RELEASE. 361 
 
 law, the lessee should make an actual entry into 
 the lands before the lelease be made to him ; 
 and this [before the statute 4^5 Vict. c. 21, and 
 7^8 lb. c. 76, was] done when a corporation 
 was the grantor, as a corporation could not be 
 seised to an use. If, however, the grantor ca7i 
 stand seised to an use, he may, to avoid the 
 trouble of an actual entry by the grantee, make 
 a bargain and sale, in consideration of money 
 (though for a nominal sum only, as for 55., which 
 is never intended to be paid,) to the purchaser 
 for a year : an use will then arise which the 
 statute will immediately execute without inrol- 
 ment ;* and when the purchaser is thus in pos- 
 session or seisin (for a barpain and sale may be Buti. n. (3) to 
 
 ^ , * / Co. Litt. 270, a. 
 
 made as well of a reversion or vested remainder 
 as of an estate of freehold in possession,!) a re- 
 lease may be made to him. 
 
 * The statute is confined to bargains and sales of " estates 
 of inheritance or freehold." 27 Hen. 8, c. 16, s. 1. 
 
 f If an estate be limited to A. for five hundred years, 
 with remainder to B. in fee, and B. makes a lease by bargain 
 and sale to C. for one year to commence immediately ; on a 
 first impression the lease appears to be trivial and vain, but 
 it is to be recollected that during that year the reversionary 
 lessee, having an estate executed by the statute, and not 
 merely an interesse termini, is entitled to the rent reserved 
 on the term of five hundred years ; and as to that term the 
 lessee for one year is the immediate reversioner, and the 
 proper person to take advantage of a forfeiture or merger of 
 the prior term. Mr. Wooddeson, in speaking on this subject, 
 seems to treat the lease for a year as a mere nullity. He 
 asks, '' IIow can a remainderman or reversioner bargain and
 
 362 OF A LEASE AND lillLEASE. 
 
 The proper words in the instrument on which 
 tlie release is to be grounded are, if the instru- 
 
 sell the present possession, which he is not himself entitled 
 to invade ? Or how can the law supply the actual entry of 
 the lessee, when such entry would be wrongful and illegal ? 
 If indeed there is a subsisting freehold interest, the reversion 
 or remainder expectant thereon may very consistently be 
 passed away by release, by force of the word ' grant,' which 
 is apt and usual on these occasions." 2 Wood, l^ect. 303. 
 In this passage the learned Vinerian professor is understood 
 to object to the inapplicability of the Statute of Uses to a 
 bargain and sale of a remainder, for that the statute deals 
 with the possession, whereas the very characteristic of a 
 remainder is, that it wants the possession, ergo the statute 
 does not apply, and the bargain and sale for a year being 
 simply void, the release operates as a grant of the reversion. 
 This reasoning may not be inappropriately applied to a lease 
 at common law, of an estate in remainder ; such a lease 
 passes only an interesse termini, which requires entry to 
 perfect it, and entry cannot be made in respect of a re- 
 mainder. The Statute of Uses, however, deals with the 
 seisin — not with the possession ; and, therefore, it is not 
 technically correct to say, in the language of every release, 
 that " by force of the statute made for transferring uses into 
 possession ;" for the statute was made for transferring the 
 seisin to the use, a thing very different : and it is, moreover, 
 observable, that the statute expressly mentions reversions and 
 remainders as part of the subjects on which it is intended to 
 operate, and hence it is inferred that the learned professor's 
 observations on this point are not so well founded as his 
 remarks usually are, 
 
 [It is not indispensable to the operation of a release to enure 
 by way of enlargement of estate that it should have an actual 
 possession to work upon, — an e&late vested in interest, though 
 not in possession, i.s sufticienl ; and for this reason, a reversion
 
 OF A LEASE AND RELEASE. 
 
 ment is intended to operate as a lease with entry, 
 '^demised, leased, and to farm letten :'' if other- 
 wise, " bargained and sold." 
 
 or vested remainder may be as effectually conveyed by lease 
 and release as an estate in possession. Thus suppose a 
 tenant for life, with remainder or reversion to B. in fee, and 
 B. conveys by lease and release to C. in fee, the bargain 
 and sale for a year to C. does not create a term for one year 
 in actual possession, but a term for a year actually vested in 
 C. ; and this estate is sufficient for the release to operate 
 upon (Bufl. n. (3), 270, a., Co. Lift.) : the conveyance is in 
 form a lease and release, but in effect a grant.] 
 
 If a mortgagee for a term purchase the equity of redemption 
 [in fee,] it is usual for him to assign the term to a trustee to 
 attend the inheritance. This should be done by an instrument 
 bearing date two days previously to the conveyance of the 
 equity of redemption, supposing that conveyance to be by 
 lease and release. If the assignment bear date the day next 
 before the day of the date of the release it becomes a question 
 whether the term is not merged in the lease for a year which 
 the mortgagor makes on that day to the mortgagee, who must 
 then be supposed to have the prior term. The assignment of 
 the term would without doubt be presumed to have been made 
 before the lease for a year, although at law there is no fraction 
 of a day, but every thing done in the day is considered as 
 being done on the first moment of the day; and if it be 
 proved that the assignment was executed before the release, 
 all doubt on the subject must vanish, as there will not then 
 have been two estates in the same person at one and the same 
 time. But it is best to avoid the point, by dating the assign- 
 ment two days prior to the date of the release. [This caution 
 may be proper when the conveyance is made under the 7 4' 8 
 Vict. c. 76, as that conveyance, it is enacted, shall take effect, 
 as if it had been made by lease and I'clease.] 
 
 363
 
 364 
 
 CHAP. XIV. 
 
 2 Bt. Comtn. 
 373. Powell 
 on Devises. 
 Touchst. c. 23. 
 
 OF A DEVISE. 
 
 Such are the principal instruments of convey- 
 ance which are amicable and not forensic, and 
 to take effect in the maker's lifetime ; what we 
 are now to speak of is a voluntary conveyance, 
 but not to take effect till the maker's death. Till 
 that time it may be altered or revoked, either 
 expressly or by implication. It is, as the law 
 terms it, ambulatory till the testator's decease. 
 But though it does not receive its consummation 
 till the death of the testator, yet it shall relate, 
 as to some purposes, to the time of its being 
 made. 
 
 [Before the recent alterations in the law of 
 devise by the statute 1 Vict. c. 26, a will could 
 not] embrace any freehold property which was 
 not in the testator at the time of its publication. 
 If the testator, therefore, afterwards purchased 
 lands, or did any act which might be construed 
 into a revocation of such will, [republication was 
 necessary.* But now a will made upon or after 
 
 * In Piffott V. Waller, 7 Ves. 98, it was held that a codicil 
 referring to a will, passed after purchased lands, though the
 
 OF A DEVISE. 
 
 the 1st o^ January, 1838, executed in conformity 
 with the above statute, (unless a contrary in ten- 
 codicil itself related to personalty only, there being a general 
 devise of lands in the will ; and in Barnes v. Crowe, 1 Ves.jun. 
 486, it was established, that every codicil, unless it be con- 
 fined in expression, is a republication of a previous will, if 
 such codicil be executed and attested according to the Statute 
 of Frauds ; and Lord Commissioner Eyre said, " If we disen- 
 tangle ourselves from the rule, that there shall be no re- 
 publication without re -execution, the principle that a codicil 
 attested by three witnesses shall be a republication, seems 
 intelligible and clear : the testator's acknowledgment of his 
 former will, considered as his will at the execution of the 
 codicil, if not directly expressed in that instrument, must be 
 implied from the nature of the instrument itself, because by 
 the nature of it, it supposes a former will, refers to it, and 
 becomes part of it ; and being attested by three witnesses, 
 his implied declaration and acknowledgment seem also to be 
 attested by three witnesses." 1 Ves.jun. 497. In Guest v. 
 Willasey, 2 Bing. 429, this doctrine was acknowledged and 
 acted on. [See also Doe v. Evans, 1 Cro. S^ Mee. 42.] 
 
 [The rule appears to be that a replication by a codicil 
 duly attested merely confirms the will with its provisions, as 
 they were effective at the date of the codicil. 2 Buss. Sf Myl. 
 270. 6 8im. 528. Freem. Ch. Ca. 223. 1 Ball Sf B. 298. 
 4 Ves. 610. And a codicil duly attested is not necessarily a 
 re-publication. Bowes v. Bowes, 2 Bos. Sf P. 500. Money - 
 penny v. Bristow, 2 Rus. ^ M. 117. Hughes v. Turner, 
 3 Myl. ^ K. 666]. 
 
 Before the statute 1 Vict. c. 26, if a person contracted in 
 writing to purchase lands, and then made his will, devising 
 the lands thus purchased to A. B., and afterwards received a 
 simple conveyance to himself in fee, this conveyance was no 
 revocation of the prior will in equity, where the devisor's heir 
 was held to be a trustee of the legal estate (which descended 
 
 365
 
 366 OF A DEVISE. 
 
 tion be apparent) passes after acquired real es- 
 *'• '2'i- tate : the will taking effect as if executed imme- 
 
 to him) for the devisee A. B. ; but if the conveyance was 
 taken to the common uses to bar dower, it was a revocation 
 of the appointor's prior will in consequence of the modification 
 and alteration of estate which ensued upon the introduction 
 of a power of appointment and the interposition of a trustee. 
 Rawlins v. Burgis, 2 Ves. Sj- Bea. 382. Ward v. Moore, 
 4 Madd. 368. [Bullin v. Fletcher, 1 K€e7i, 369. But the 
 law is now altered in reference to wills made upon or after 
 the 1st January, 1838, by that statute, sections 23 and 24.] 
 It is a rule in a Court of equity to treat that as done 
 which has been agreed to be done. Hence when one person 
 agrees to sell an estate to another, the vendor is considered as 
 having transferred the estate to the purchaser, and the pur- 
 chaser as having paid the money to the vendor. The conse- 
 quence is, that the vendor becomes seised of the legal estate 
 in trust for the purchaser ; and if he dies before he has con- 
 veyed the legal estate pursuant to the contract, it will descend 
 on his heir or devisee, in trust nevertheless for the purchaser ; 
 but the purchase-money will belong to the vendor's executor 
 or administrator, as part of his personal estate. The contract 
 for sale is a revocation of the devise in equity, but not at law, 
 and therefore the concurrence of the vendor's heir or devisee 
 will be necessary to complete the title. If the purchaser dies 
 before he has paid the money and taken a conveyance, the 
 price must be answered out of his personal assets, and the 
 estate conveyed to his heir or devisee. The purchaser may 
 devise the estate after contract ; and a subsequent conveyance 
 will not, as above noted, revoke that devise, unless it make a 
 new modification of the ownership, [and the will is made 
 before the 1st Jamtar>/, 1838 ; in which case] the will cannot 
 operate on the legal estate, unless republished after the con- 
 veyance, and the legal estate will descend to the purchaser's 
 heir, who will become a trustee for his devisee. Broome v.
 
 OF A DRVISK. 367 
 
 diately before tlie testator's death ; and a resi- 
 duary devise carries all real estate not effectually 
 disposed of, by reason of lapse, by the death of ■s''-^ 2^- 
 the devisee, or the invalidity of the disposition.] 
 
 The same strictness of expression is not of 
 necessity in wills as in deeds, with respect to 
 limitations, &c. ; but, in the making of wills, too 
 much care cannot be taken in pursuing those 
 descriptions which the law has given, and in 
 using technical terms in a technical sense. 
 
 A devise of freehold lands* need not be under statute of 
 
 Frauds, 29 
 Car. 2, c. 3. 
 
 Monk, 10 Ves. 597. 2 P. Wms. 332, 623. Seton v. Slade, 
 7Ves.274. Gaskarfh v. Lowther, 12 Ves. 107. [But by a 
 will made upon or after the above day in conformity with the 
 late statute the legal estate would pass, if the conveyance be 
 executed in the testator's lifetime ; ss. 23, 24. 
 
 Before that statute it had] been long settled that a surrender 
 of a lease for lives, and the taking a new lease, operated as a 
 revocation of a prior devise of it. For the testator, by the 
 surrender, divested himself of his whole estate in the old lease, 
 and by the renewal acquired a new interest. Marwood v. 
 Turner, 3 P. Wms. 163. Slatter v. Noton, 16 Ves. 197. 
 James v. Dean, \ 1 Ih. 383. [But by the late act a will 
 within its operation passes the subsequently acquired lease, 
 the will speaking as if executed immediately before the 
 testator's death ; s. 24.] 
 
 * The trust of a term for years attendant on the inheritance 
 is considered as part of the inheritance, not as a chattel real, 
 and under the old law could be disposed of only by a will 
 attested by three witnesses. [Thus A., possessed of a term 
 of 500 years in Black Acre, afterwards purchased the fee
 
 368 OF A DEVISE. 
 
 seal as a deed, but must be in wFiting, and 
 signed by the party devising, or some other per- 
 son in his presence, and by his express direc- 
 tions, [and if made before the 1st of January, 
 1838,] attested and subscribed, in the presence 
 of a devisor, by three or four credible wit- 
 nesses.* 
 
 simple in the name of a trustee, and devised the land by a will 
 not duly attested according to the statute ; it was decided, 
 that although the will was sufficient to pass a terra in gross, 
 yet it should not pass the trust of the term attendant on the 
 inheritance, nor consequently the term itself. Whitechurch v. 
 Whitechurch, 2 P. Wms. 236.] 
 
 * A devise [in a will made before the 1st day o^ January, 
 1838], must also be puhlished; that is, the devisor must do 
 some act from which it can be concluded that he intended the 
 instrument to operate as a will or devise. Lord Hardivicke. 
 has mentioned a case (3 Atk. 161,) where upon a trial at 
 bar in the Court of King's Bench the question was, whether 
 the testator had published his will, notwithstanding it was 
 apparent on the face of the will that it was executed in the 
 presence of three witnesses and attested by them in the 
 presence of the testator. This shows that publication was in 
 the eye of the law, an essential part of the execution of a 
 will, and not a mere matter of form. The words '•' signed 
 and published by the said A. B. as and for his last will and 
 testament," were a sufficient publication ; and the delivery 
 of a will, as a deed, has also been held to be a publication of 
 it. Peate v. Ongley, 1 Com. R. 197. Trimmer v. Jackson, 
 A Burn's Eccl. Law, 119. [fVard v. Svnfi, 1 Crom. ^- Mee. 
 171.] 
 
 A will of freehold lands need not be proved in the Eccle- 
 siastical Court. The probate cannot be given in evidence in 
 any other Court ; the original will must be produced, which
 
 OF A DEVISE. 
 
 369 
 
 [But now by the above statute, every species 
 of testamentary disposition of any kind of pro- 
 perty made upon or after the above day must be Mode of 
 
 * . . . 1 1 r r execution. 
 
 in writing signed at the foot or end thereof by 
 
 may be obtained by application to the Court of Chancery for wills. 
 an order to the Ecclesiastical Court to have the will delivered, 
 1 Atk. 627, 4 Bro. C. C. 476. Cro. Car. 395-397. 4 Burn's 
 EccL Law, 195. But wills of chattels real and terms for 
 years, which vest in the executors, require proof in the 
 Ecclesiastical Court having jurisdiction where the lands lie. 
 Whether a trust term for years is bona notabilia in the trustee, 
 is a point not yet definitively settled. [See some opinions on 
 this subject in Points on Conveyancing, 132, ed. 1829.] 
 
 A will may also be proved per testes in the Court of Chan- 
 cery, if there be any doubt of the sanity of the testator, by 
 which means the validity of the will is at once decided on 
 without an issue at law. Formerly, where a vendor claimed 
 under a modern will, by which the heir at law was disin- 
 herited, it was usual to require the will to be proved in this 
 way against the heir ; but now this practice is almost wholly 
 abandoned, and it seems clear that a Court of equity will not 
 compel a vendor, at the suit of a purchaser, to prove a recent 
 vt\\\per testes. Fearne, Post. Wks. 234. Colton v. Wilson, 
 3 P. Wms. 190. Sug. V. ^ P. 369, 9th ed. 
 
 [No person under the age of twenty-one years can make a 
 will under the late statute 1 Vict. c. 26, s. 7, neither is the 
 will of any married woman valid except such as she might . 
 have made before the passing of the act, s. 8. 
 
 The above statute leaves the law respecting wills by soldiers 
 in actual service and mariners at sea, as before ; and does not 
 affect the provisions of the 11 G. 4, <^ 1 fV. 4,c. 20, respecting 
 wills of petty officers, and seamen, and marines. 
 
 In the case of a will of a blind person there must be a clear 
 knowledge of the contents of the instrument ; but it is not 
 
 B B
 
 370 OF A DEVISE. 
 
 the testator, having attained the age of twenty- 
 one years (s. 7), or by some other person in his 
 presence, and by his direction ; and such signa- 
 ture shall be made or acknowledged by the tes- 
 
 wiLLs. necessary to produce evidence of the identical paper, which 
 
 the testator signed, having been read. Edwards v. Fincham, 
 7 Jurist, 25. 3 Curt. 63.] 
 Construction The following words in wills have been adjudged to give an 
 
 of Devises. estate in fee simple to the devisee : — / 
 Fee siraple. To ''A. for ever." Cro. Car. 129. 1 Bro. Ch. Ca. 147. 
 
 To "^. and his assigns/or ever." But to ^' A. and his 
 
 ^ h'ns'^ /Y{l^'iflCC "2-^ assigns" gives only a life estate. Co. Litt. 9, b. But 
 ^ (o Ji^linn^Co^i'^^'^^!^^ see Perkins, s. 557. 
 
 ri0dL ^'d^^A^ 4^To"A. and his blood." 1 Boll. Abr. 834. But to " A. 
 ' '^ '-'f7. - f r X ^<'^n^ ^^^ ^^^ seed" gives an estate tail only. Co. Litt. 9, b. 
 f*^ "* '"^ To "A. and his house." Dij. 333, b. 17 Ves. 261. 
 
 '^'^':-. . / To " A. and his stock." Hob. 33. 
 
 ^^^ / ^ '^o'' A. zx\^\\\^ posterity." I IT. Black. 461. Freem. 
 
 - • ^V ^ ^^- ^^' 268. [2 Equity Cases, Abr. 290, pi. 7.] 
 
 .^^4^^fW^H^ 17 r... 261. 
 
 Srjt^u/ ki-m^^^^^rj.^ «^ f^j. jjfg^ ^^^ ^f^g^ ^^j ^y family,"— the testator's 
 
 heir will take the fee under the word family. 1 Turn. 
 8f Buss. 143. 
 To " A's family^" or to " A. for life, and afterwards to 
 his family," will perhaps give A. the fee. Hob. 33. 
 5 Ves. 167. 3 East, 172. [5 iffoMZ. 4- Sel. 126.] 
 17 Fes. 261. 1 Turn. 143. 
 To " a woman and her Aee>5, so that it shall remain 
 in the family " — doubtful whether in fee or in tail. 
 Semb. 
 To " W., to be kept in the name and family of W. as 
 long as can be," — held to pass an estate of inherit- 
 ance ; but whether in fee or in tail was not decided. 
 1 Barn. ^ Aid. 518.
 
 OF A DEVISE. 371 
 
 tator in the presence of two or more witnesses 
 present at the same time, and such witnesses 
 shall attest and shall subscribe* the will in the 
 presence of the testator, but no other form of 
 
 [To the younger branches of the family of B. and their wilf.s. 
 heirs as tenants in common, and for default of such 
 issue ; to the elder branches of the family of B. (in 
 the same words) was held void for uncertainty. Doe 
 V. Fleming, 2 Cr., M. Sf R. 638. See also Robinson v. 
 Waddelow, 8 Sim. 134. Doe v. Joinville, 3 East, 172.] 
 
 To " y4. of the land of my house." — Semh. ; though latid 
 alone will not pass the fee, 1 Ves.jun. 78 ; much less 
 " goods, lands, and chattels," Pr. Ch. 471. But where 
 a testator "constituted R. G. sole executor of his 
 land for ever," the fee was held to pass, 5 Barn. 8f 
 Aid. 785. 
 
 To " A. and his heir." 1 Roll. Ahr. 832. Skin. 563. 
 ] Vent. 215. But a devise to "A. and his next heir 
 male," or to him "and the heir of his body for 
 ever," will give an estate tail. Amb. 454. Sty. 249. 
 Com. 289. 
 
 To " A. and heirs," without adding his. Co. Litt. 8, b. 
 4 T. R. 39. 
 
 To " A. or his heirs." 2 Atk. 645. Plowd. 286, 289. 
 
 To "y^. and his heirs, during their lives" — the words 
 in italics being considered as repugnant and void. 
 12 East, 515. 
 
 To " A. and his heirs ; but if he die without heirs, to B. 
 in fee." A. takes an estate in fee, if B. be a stranger 
 
 [* It has been decided that the attestation of a witness 
 who cannot write, but whose hand is guided by the 
 other witness, is a subscribing, under the statute 
 1 Vict. c. 26. Harrison v. Elvin, 3 Ad. ^ Ell. N. S. 
 117]. 
 
 B B "i
 
 372 
 
 OF A DEVISE. 
 
 attestation shall be necessary, {s. 9) : the same 
 form of execution is required to render valid any 
 alteration in the will (5. 21). 
 
 WILLS. to him : but if B. be of his blood, or if J. be a denizen 
 
 or a bastard, he will take an estate tail. (^Semb.) 
 \_Pickering v. Towers, 1 Eden, 142.] 
 
 To " A. in fee simple." Perk. s. 557. Gilb. Dev. 18. 
 
 Of "the fee simple to A., and after his death to B." 
 A. has the reversion in fee. Dy. Z51. 1 And. 51. 
 
 To " A. to hold to him and his." Benl. 11, pi. 9. 
 
 " To be hers at my decease." But qu. if more than an 
 estate for life will pass by this devise, the words point- 
 ing to time and not to interest. 
 
 To "J. and his executors." 3 Burr. 1881—1885. 
 5 Ves. 403. Fearne, Post. Whs. 144. But qu. if these 
 words pass a fee, "and I appoint A. my executor of 
 all my real and personal estate not hereinbefore dis- 
 posed of" See and consider 5 Barn. Sf Aid. 785. 
 
 [After an absolute bequest of personal estate to his wife, 
 her heirs, and assigns, the testator added, " and I do 
 likewise make my wife my full and sole executrix of 
 my freehold house in A." Doe v. Haslewood, 1 Nev. 
 Sf P. 352, see also Doe v. Pratt, ib. 366. 
 
 To "^. for life, and after to his next of kin," i. e. his 
 heir. Semb. et vid. 5 Ves. 403. \^Sed qu. 15 Ves. 
 532.] 
 
 To " A. and his legal representatives." Semb., et vid. 
 3 Bro. C. C. 224. 1 Cox, 250. 
 
 To "A. and his successors." 3 Bulst. 194. Moore, 853. 
 
 [1 Roll. Rep. 398.] 
 
 " I make A. my sole aire and executory" T. Jones, 25. 
 
 To " A. to dispose and employ the same on her and her 
 
 son at her will and pleasure." Moore, 57. Benl. 11, 
 
 pi. 9. 
 
 To "A. for her own use, to give away at her death to
 
 OF A DEVISE. 
 
 [It lias been decided that the witnesses must 
 either see the testator sign, or he must actually 
 acknowledge his signature to them.*] 
 
 whom she pleases," 2 Atk. 103 ; " or to dispose of the wills. 
 same as she will." 1 Leon. 283. 
 
 [To '^A. (the testator's heir at law) for life, to be enjoyed 
 by her without molestation, and after her death without 
 issue, that she shall dispose thereof at her will and 
 pleasure :" — she having no issue, was held to take the 
 fee. 2 Wils. 6. 
 
 But to "^. for life, and after her death to leave the same 
 to whom she pleases," gives only a life-interest with a 
 power of [testamentary] appointment. 10 East, 438. 
 10 Ves. 370. See also 1 Sugd. Pow. 119, &c. ed. 6.] 
 
 To "^. for life, and if he should not live to spend it, 
 to B. in fee." A. takes in fee with an executory de- 
 vise over. Setnh. 
 
 To '■^ A. and to his, to do what he will with it." Latch. 
 9,36. 
 
 To " J. to do therewith [or to dispose thereof] at his 
 will and pleasure." 6 Mod. 111. 1 Leon. 283. 
 
 To "^. to give, sell, or do therewith at his pleasure." 
 1 Leon. 156. 2 Wils. 6. 
 
 373 
 
 [* This was decided in the important case of Hudson v. 
 Parker, 8 Jurist, 786, by Dr. Lushington, (sitting for 
 Sir Herbert Jenner Fust,) in which case the two wit- 
 nesses subscribed a paper, at the request and in the 
 presence of a party who told them it was his will, but 
 they did not see him sign it, nor did he acknowledge 
 any signature, the writing on the paper being con- 
 cealed from them. The learned judge, in his able 
 decision against the will, expressed his opinion that 
 the authorities under the Statute of Frauds, bearing 
 upon the case before him, were not to be followed in 
 the construction of the statute 1 Vict. c. 26],
 
 374 OF A DEVISE. 
 
 Publication. But publication is now no longer necessary. 
 
 Witnesses. The incompetency of a witness to the will at 
 
 or after the execution does not invalidate his 
 
 To "A. to dispose of for payment of all my just debts." 
 
 I Ck. Ca. 196. 
 
 To " A. to be at his discretion." 1 Leo?i. 156. 
 
 To "A. to give to his children," or "to make provision 
 
 for his children." 6 Mod. 110, 111. 
 To " my wife, to be divided and disposed of to my 
 
 children ;" — the wife takes a fee from the word 
 
 dispose. W. Kely. 6. [4 Beav. 174, 177.] 
 " To be equally divided,'' does not mean to be equally 
 
 divided in fee. Cro. Eliz. 330. 1 Roll. Abr. 834. 
 
 pi. 13, [and see 1 Vern. 65. J 
 " To " A. freely to be enjoyed." Cowp. 352. — Contra, 
 
 I I East, 220, where the words " freely to be pos- 
 sessed and enjoyed" were held to mean free from 
 incumbrances. 
 
 Of "all the residue of my real estate." Pr. Ch. 264. 
 
 3 P. Wms. 295. 2 T. R. 659. 1 Ves. 10. 1 Wils. 
 
 333. 2 Ld. Raym. 1324. 
 Of " all the rest and residue of my estate." 4 Mod. 90. 
 
 3 lb. 228. 2 Vern. 564. 
 Of " whatsoever else I have not disposed of." 1 Salk, 
 
 239. Com. R. 164. 
 Of "all my lands not before devised." 2 Vern. 461. 
 
 But a devise of " my manor of S. and all my lands in 
 
 iV.," will not carry a fee. 1 Price, 353. 
 Of " all my concerns." Ca. temp. Talb. 286. 
 Of " all I am worth." 1 Bro. C. C. 437. 
 Of " all my wordly substance." Cowp. 306. 
 Of "all my real property." 18 Ves. 193. 14 East, 
 
 370. Ibid. 221. [6 Bar. Sf Cress. 512.]
 
 OF A DEVISE. 375 
 
 attestation, (s. 14) ; and the gift of any estate or 
 interest in real or personal estate, (except a charge 
 for payment of debts) to an attesting witness, his 
 or her wife or husband is void, (s. 15). But a 
 
 That " all my children shall share equally in all my wills. 
 
 property." 1 Jac. ^^ W. 189. 
 Of " all my estate real and personal." 18 Ves. 193. 
 
 11 East, 518. 
 Of " all my personal estate," the intention being clear. 
 
 1 1 East, 246. 
 Of " all that I am possessed of in the parish of A. 
 
 consisting, &c." Semb. [8 Ves. 604.] 
 [A residuary disposition of goods, &c. "and everything 
 
 else I die possessed of," coupled with introductory 
 
 words expressing an intention to pass all worldly 
 
 property. Wilce v. Wilce, 7 Bing. 664, Davenport 
 
 V. Coltman,9 Mee. ^ Wei 481.] 
 Of " all my property both personal and real for ever." 
 
 UEast,5\^. 14 /J. 370. 16 75.221. 
 Of " all my property whatever and wheresoever." 2 
 
 New Rep. 214. 
 [But the word property, used merely in reference to 
 
 local situation, does not pass the fee. Doe v. Clarke, 
 
 1 Cro. ^ Mee. 39.] 
 
 Of " all my right in ^." 1 Ld. Raym. 187. 
 
 Of "all my interest in the estates of ^." 5 T. R. 295, 
 
 2 Doug. 763. 
 
 Of "' all my right, title, and interest." 3 Bro. P. C. 7, 
 Tom. ed. 
 
 Of " all my lands, tenements, and hereditaments." Per 
 Holt, C. J. 11 Mod. 90, 102. 2 Salk. 685. Holt, 
 235. 3 Wils. 418. But now held otherwise. 3 
 T. R. 356. 5 Ih. 558, 6 lb. 175, 1 Salk. 239, 
 Mas. 242. Nor will " hereditaments" alone give the 
 fee. 1 Bos. Sf Pull. 558. 2 lb. 247. 3 Anst. 781.
 
 376 
 
 OF A DEVISE. 
 
 creditor may be admitted as a witness, (s. 16); 
 as also an executor, (s. 17.) 
 
 Revocation. A will undcr the above act is revoked by mar- 
 
 To " A. for life, and after her decease I devise all my 
 lands, tenements, and hereditaments, not disposed of, 
 to B. ;" he takes the fee. 2 Vent. 285. Carth. 50. 
 But " all my lands, freehold, copyhold, and leasehold, 
 in the county of Essex," give an estate for life only. 
 8 T. R. 67. 1 Price, 353. 
 
 Of " my inheritance in W.," or " my inheritance there- 
 in ;" or to three persons " as trustees of inheritance 
 for the execution of my will." Moore, 873. Hob. 2. 
 
 Of " all my goods, chattels, and personal estate, together 
 with my real estate." 3 Atk. 486. 1 Ves. 10. 
 
 Of " all my estate and effects :" but this depends on the 
 context and intention. 9 Ves. 143. 1 Per. Sf Dav. 
 472. 
 
 Of " the residue of my estate and effects to trustees, and 
 out of such residue to manage my farm." 5 Barn. ^ 
 Aid. 18. 
 
 Of " all the residue and remainder of my effects, both 
 real and personal ;" Cowp. 299. 3 Bro. P. C. 388, 
 Tom. ed. But " all my effects" will not include real 
 estate, except the intention be very manifest ; nor 
 will " all the rest, residue, and remainder of my effects 
 wheresoever and whatsoever, and of what nature, kind, 
 or quality soever ;" nor will " all the rest and residue 
 of my goods and chattels, personal and testamentary/ 
 effects whatsoever." 3 East, 516. 1 East, 33. 
 11 East, 290. 15 East, 394. 2 Maule ^ Selw. 448. 
 3 Brod. Sf Bing. 85. 
 
 Of " all that my remainder." Lutio. fol. 764. I Ld. 
 Kaym. 187.
 
 OF A DEVISE. 377 
 
 riage, unless the will be an appointment of real 
 or personal estate, which, if not so appointed, 
 would not devolve upon the donee's real or per- 
 sonal representative, or be distributable under 
 
 Of " all that ray reversion." 2 Ves. 48. — Contra, wills. 
 
 1 Vern. 65. 
 "//. B. to enjoy all that remains to me after payment 
 
 of the above sums." Semb. 
 Of " all other my part, share, and interest, of and in the 
 
 estates late of the said J. B" 5 T. R. 292. 
 Of " all that my share of the Bastile and other estates 
 
 situate at A" 5 Maule ^ Selw. 408. 
 Of " all that my half part" by one tenant in common in 
 
 fee to his companion. Semb. 11 East, 160. But the 
 
 word share alone in a substitution clause will not pass 
 
 a fee. Skin. 339. 2 Vern. 388. 8 Vin. 344. 
 To "trustees in fee in trust for A.'' without more, A. 
 
 takes an equitable estate in fee. 8 T. R. 597. 
 To " daughters equally, if one die before the other, then 
 
 one to be heir to the other." 1 Roll. Abr. 833. 
 To "^. in fee, to B. to hold in the same manner." 
 
 Co. Litt. 9, b. See also 20, b. [9 East, 400.] 2 Bac. 
 
 Abr. 534. But under a devise to " sons in tail, 
 
 remainder to daughters as tenants in common," the 
 
 daughters will take for life only. 1 Bro. C. C. 240. 
 
 [3 T. R. 83. S. C. See also 5 Barn. 8^ Aid. 465, 473.] 
 Of " all my estate to such uses as A. shall appoint." 
 
 a Ves. 470. 
 Of " all my temporal estate." 3 P. Wms. 294. Ca. 
 
 temp. Talb. 284, 
 Of " all my testamentary estate." 2 H. Black. 444. 
 
 3 Brod. 8c Bing. 85. [2 Sim. 264.] 
 Of '* «W to my grandchildren." Semb. But see 1 Swan. 
 
 201. 
 Of "all that my estate:' 2 Lev. 91. 6 Mod. 106.
 
 378 OF A DEVISE. 
 
 the Statute of Distribution among his next of 
 kin, (s. 18). 
 
 It mav also be revoked by another will, by 
 
 9 Ves. 137. 7 East, 259. 1 T. R. 411. 2 Ves. 48. 
 2 T. R. 659. 2 Show. 328. 1 Ves. 228. 
 
 Of " all that estate I bought of Mead." 2 Ves. 48. 
 
 Of "all my estate at S." or "in T." or " of A." or 
 "all my J. estate." Ca. temp. Talb. 157. 4 Taunt. 
 176. 6 75. 317, 410. 8 East, 141. 2 T. R. 656. 
 1 5o*. ^ Pul. 243. Zo/Jf, 224. 7 Taunt. 35. 4 
 MiMfe ^ Selw. 366. 5 75. 408. 2 Ecfew, 115. 1 
 iVew Rep. 335. 3 Barn. ^ Cress. 870, But devises 
 " of an estate in the occupation of A." or " lying in 
 B." or •' situate at S.," or " called or known by the 
 name of C," have been held to pass estates for life 
 only. 3 Ves. ^ B. 160. Doe v. Lawes, 7 Ad. ^ El. 
 195. Doe V. Lean, 1 75. N. S, 229. The inclination 
 of the Courts, however, seems to be to allow the word 
 estate its full force, if it be not accompanied with the 
 very words which have been held to confine its mean- 
 ing to locality. Thus, a devise of " all my freehold 
 estate, consisting of thirty acres, situate at S., now in 
 the occupation of G.,"" has been held to carry the fee. 
 1 Brod. (§' Bing. 72. 3 J. B. Moore, 565, against 
 7 Ves. 546. 7 East, 259. And see 2 Marsh. 117. 
 6 Taunt. 410. So a devise "of all my estate real 
 and personal, that is to say, my land situate at S. on 
 my estate," has been held to carry the fee. 7 Taunt. 
 35. Et vide 2 Bing. 456, as to the words " now in 
 my occupation." \_Esdaile v. Gall, 1 Russ, ^ M. 540. 
 Contra, S. C. 8 Bing. 323.] 
 
 To " A., but if he dies under twenty-one. to B. in fee." 
 or " to his own heir." A. attaining twenty-one, takes
 
 OF A DEVISE. 
 
 379 
 
 codicil or other testamentary writing executed as 
 above mentioned ; or by cancelling or other de- 
 struction by the testator, or by some person in 
 his presence, and by his direction, with the in- 
 
 the fee. 2 Saund. S8S. 3 Burr. 1618. 9 East, 400. wills. 
 [6 Price, 179, 184. See also 1 Barn. ^ Cress. 336.] 
 
 " la case my daughter shall die under twenty-one, 
 unmarried and without issue." If the daughter had 
 attained twenty-one she would have taken the fee ; 
 but she dying under twenty-one, a married woman 
 without issue, it was held that the testator's heir 
 was entitled. 2 Barn. ^ Aid. 441. 
 
 " Of all my real and personal estate to executors in 
 trust for A. till twenty-one, then the trust to cease." 
 A. takes in fee. 1 Edeti, 479. Amb. 387. 2 P. 
 Wms. 194. [See also Doe v. Eivart, 7 Adol. ^ Ell. 
 636, 663, and Stephens v. Frost, 2 Vo. ^ Col. 302. 
 
 So also a devise of real estate to trustees in trust to 
 convey and assure the same estate to A., when and 
 as soon as he shall attain the age of twenty-one 
 years ; but if he should die under that age, without 
 leaving lawful issue, then over ; A. takes a vested 
 fee, subject to be divested on the event contemplated. 
 Phipps V. Akers, 5 Sim. 44. 3 CI. <$- Fin. 665, 702, 
 confirmed D. P. Jurist, 1842, 745. See also 
 Edwards v. Hammond, 3 Lev. 132. Bromjield v. 
 Crowder, 1 Netu Rep. 373. Doe v. Moore, 13 
 East, 601.] 
 
 To " A., on condition that he pay 20/. to B." Co. Litt. 
 9, b. 8 T. R. 2. 
 
 [To " A., for paying his son B. 501., when of the age of 
 twenty-one." 3 Russ. 350.] 
 
 To " A., on condition that he release B.'s debt." 1 
 And 35. 2 lb. 13.
 
 380 
 
 OF A DEVISE. 
 
 tention of revoking, (5. 20). But no will is re- 
 voked by any presumption of an intention, on 
 the around of an alteration in circumstances, 
 (5. 19), nor by any conveyance or act subsequent 
 
 [Power of sale 
 in executor or 
 heir.] 
 
 To " A., on condition that he allow B. a maintenance." 
 T. Jones, 107. Pollexf. 545. 
 
 To " A., he paying my just debts and legacies," or 
 "charged" or " subject" to such payment, or to 
 " A., my legacies being first paid." 2 Vern. 687. 
 2 Show. 36. 3 T. R. 356. 8 76. 1. 4 East, 496. 
 5 lb. 87. 
 
 To " A., but he to allow my son to have a living in the 
 house." Semb. [2 Show. 49.] 
 
 To " A., on condition that he pay a legacy of 120/. to 
 B. six months after my decease," where the estate is 
 of the annual value of 10/. 2 Lev. 249. T. Jo. 
 113. But A. would take for life only, if the legacy 
 do not exceed the first year's rent ; for as legacies are 
 not payable till twelve months after the testator's 
 death, the devisee could not possibly sustain a loss 
 by taking a life estate and making the payment. 
 If, however, the legacy be directed to be paid imme- 
 diately, he will take the fee. 8 East, 141. 2 JVew 
 Rep. 343. 3 Maule ^' Selw. 516, 518. 
 
 To "'A., upon condition of his paying 30*. annually," 
 whatever the rent. 2 Show. 49. 2 W. Black. 1041. 
 5 T. R. 13. 292. 3 Burr. 1533. 
 
 To " trustees of my freehold, copyhold, and all my 
 personal estate, after payment of certain legacies and 
 annuities." 2 Barn. ^- Cress. 357. 
 
 [When a testator does not devise his real estate to his 
 executors, but merely " desires that it shall be con- 
 verted into money," directing the produce to be applied 
 by his executors, a power of sale is implied in the
 
 OF A DKVISE. 
 
 381 
 
 to the execution of the will relating to any real 
 or personal estate therein comprised : but the will 
 shall operate upon such part of the estate as 
 the testator has power to dispose of by his will, 
 
 executors, and they may convey the fee without the wills. 
 concurrence of the testator's heir at law. 2 Sim. 8^ 
 Stu. 238. 4 Mad. 142. But where the power is 
 neither expressly, nor by implication, given to the 
 executors, the heir at law is a necessary party, where 
 the estate descends upon him, and he is a trustee for 
 that purpose. 1 Lev. 304. 4 Mad. 44. 1 Jac. ^ 
 Walk. 189, 193. Harg. note, Co. Litt. 1 13, a. 1 Sugd. 
 Poxv. 128 — 152, ed. 6, infra, ch. Powers. 
 
 Where no power is expressly or by implication given to 
 the executors, and the estate does not devolve upon 
 the heir, but passes by the will to devisees who are 
 minors, no sale can be made until they are of age. 
 1 Jac. 8f Walk. 189.] 
 
 To " A. B. and C. D. in trust to pay the rents to tes- [Devise to 
 tator's nieces." The legal estate in fee will pass to trustees.] 
 the trustees. 2 Brod. <§• Bing. 623. [See also 2 B. 
 <§■ Adol. 554. 7 Adol. 8^ FJl. 636. 4 Mee. ^ Wei. 
 421.] 
 
 [By the 30th sect, of the stat. 1 Vict. c. 26, (applicable 
 to wills made on or after the 1st day oi January, 1838) 
 it is enacted, that where any real estate (not being a 
 presentation to a church) shall be devised to any 
 trustee or executor, such devise shall be construed to 
 pass the fee simple or other the whole estate which the 
 testator has power to dispose of, unless a definite term 
 of years absolute or determinable, or an estate of 
 freehold, shall be thereby expressly given. By the 
 following section (31) it is provided, that where any 
 real estate shall be devised to a trustee without ex-
 
 382 
 
 OF A DEVISE. 
 
 at the time of his death, (s. 23). No will re- 
 voked shall be revived, unless by a re-execution, 
 or by a codicil, or other testamentary writing, 
 executed as above-mentioned, expressing an in- 
 
 [ Express 
 estate tail.] 
 
 press limitation of the estate to be taken by the trustee, 
 and the beneficial interest shall not be given to any 
 person for life, or, if given for life, the purposes of the 
 trust may continue beyond the life of such person, the 
 trustee shall take the fee or other whole estate of the 
 testator, and not an estate determinable when the 
 purposes of the trust shall be satisfied. 
 The following expressions in a will of real estate have 
 been held to give express estates tail : — 
 
 To " ^. and her heirs lawfully begotten." Co. Litt. 20, b. 
 7 Taunt. 85. 
 
 To "A. and his heirs male." Co. Litt 20, b. 
 
 To ''A. and his issue." 1 Mad. 467, 475 ; issue male, 
 19 Ves. 545. S. C. 1 Mer. 20. 
 
 To '* A. and his issue living at his death." 1 Eden, 473. 
 
 To " A. and his seed." Co. Litt. 9, b. 
 
 To "^. for life, and after his decease to the heirs or 
 heirs male of his body." 1 Ves. sen. 133. 19 Ves. 73. 
 2 Sim. Sr Stu. 409; 3 Mer. 176. 182; or "to his 
 issue," 4 r. i?. 82. 1 East, 229. 
 
 To "^. for life, &c., to trustees, &c., to preserve and 
 after the death oi A. to the heirs (general or special) 
 of his body." 19 Ves. 574. S. C. 1 Mer. 271. 
 11 East, 548. 
 
 To "A. for life and no longer, and to such son as he 
 shall have, and in default of such issue, remainder 
 over." 2 Ves. 225. 1 Burr. 38. 
 
 To " the children of A. and their issue, share and share 
 alike." 4 Russ. 70. 
 
 To " A. and his children," (he having none at the time
 
 OF A DEVISE. 383 
 
 tention to revive the same : and when a will or 
 codicil partly revoked, and afterwards wholly 
 revoked shall be revived, the revival, in the ab- 
 sence of a contrary intention, shall only extend 
 
 of the devise)." 6 Rep. 17. 1 Bulstr. 219. Benl 30. wills. 
 Doug. 321. 2 Bos. 8f Pul. 485. And in an obscure 
 will, where there were chidren at the time of the 
 devise, the word " children" was construed a word of 
 limitation, the devise being " to A.^s. children, to be 
 equally divided between them, share and share alike, 
 and to the survivor of them and their children." 
 16 East, 399. [See also Broadhurst v. Morris, 2 B. 
 8f Adol. 1.] 
 
 The following expressions have been held to give estates [Estate tail by 
 
 ^ ., , . ,. ,. implication.! 
 
 tan by implication : — ^ -■ 
 
 To '^ A. generally, or to A. for life, and if he die without 
 
 heirs or issue (general or special)." 1 Roll. Ah. 837. 
 
 1 Burr. 38. 3 Ves. 99. 15 Ves. 564. 1 Buss. 262. 
 4 Ih. 283. 2 Sim. 233. 
 
 To ".^., and if he die and leave no child lawfully 
 begotten." 5 Bing. 243. [4 Bar. 8^ Adol. 43.] 
 
 [To " A. for life, and after his decease, to his children, 
 and so on for ever ; and for want of children, over." 
 Trash v. Wood, 4 Myl. 8^ Cr. 324. See also Wood 
 v. Baron, 1 East, 259.] 
 
 To ^' A. for her maintenance, and after her death 
 without issue." Freem. Ch. R. 40. 
 
 " I make A. my sole heir, and if she die without issue." 
 
 2 Atk. 307. 
 
 To "y4. and if he has no heirs, then over to his sister," 
 or other collateral heir, the word heirs must be con- 
 strued heirs of the body. Cro. Jac. 427. Amb. 398, 
 478. 
 
 " To the three daughters oi A., to be equally divided.
 
 384 OF A DEVISE. 
 
 to the part unrevoked and subsisting previously 
 to the total revocation, {s. 22). 
 
 The will speaks as if executed at the death of 
 the testator (s. 24) ; and a residuary disposition 
 
 and if any of them died before the other, then the 
 
 others to be her heirs, equally to be divided ; and if 
 
 her three children die without issue." Cro. Jac. 448. 
 
 To " A. and his heirs ; and if he dies without issue 
 
 (general or special)." Cro. Jac. 290, 695. 7 T. R. 
 
 276. 17 Ves. 479. 7 Adol. ^ Ell. 636. 
 
 [But in wills made on or after the 1st of January, 1838, 
 
 the rule of construction is now materially altered by the 
 
 statute 1 Vict. c. 26, s. 29, in respect of devises and bequests 
 
 of real and personal estate similar to those above cited, as 
 
 giving estates tail by implication ; for the act prescribes that 
 
 where the expressions, " die without issue," or " die without 
 
 leaving issue," or " have no issue," or any other words occur 
 
 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, they shall be construed to mean 
 
 a want or failure of issue in the lifetime, or at the time of the 
 
 death of such person, and not an indefinite failure of his 
 
 issue, unless a contrary intention shall appear by the will : 
 
 so that, as observed on a former page, the first devisee does 
 
 not take an estate tail, but an executory devise defeasible on 
 
 the devisee dying without issue living at his death. The 
 
 words of section 29 are given in a former page, 211, 212. 
 
 We may here observe, that in wills made before the 1st of 
 January/ 1838, where chattels, real or personal, are be- 
 queathed by words which in devises of real estates would 
 expressly or by implication give the devisee an estate tail, 
 then the legatee shall take an absolute interest in such 
 personal estate, and the bequests over will be void. See this
 
 OF A DEVISE. 385 
 
 comprehends all property real and personal, 
 eventually undisposed of, by reason of lapse, or 
 the invalidity of the devise or bequest ; thus as- 
 similating the law as it respects real and personal 
 estate, (s. 25). 
 
 A general devise of land includes copyhold 
 and leasehold, as well as freehold (5. 26), and 
 all estates, both real and personal, over which 
 the testator has a general power of appointment, 
 unless a contrary intention appear. 
 
 The act then prescribes some important rules 
 
 subject discussed in Roper's Legacies, vol. ii. eh. 22, p. 445, 
 ed. 1838. 
 
 We conclude the present note with observing, that where [Estates for 
 there are no expressions in the will, made before the above '^ 
 day giving in direct terms, or by implication an estate of 
 inheritance, the devisee will take only for life ; as to " A." 
 generally, or to "^, and his assigns." Co. Litt. 9, b ; or to 
 "A. and his children," (he having children living ait the time 
 of the devise.) 6 Rep. 17. Vin. Abr. tit. Dev. (R. a.) 
 Cowp. 657. Doug. 759. 19 Ves. 299. 5 Barn. ^ Aid. 464. 
 3 Bra. ^ Bing. 27. 4 Russ. 283. [3 B. ^ Adol. 469. 
 Graves v. Hicks, 5 Adol. ^ Ellis, 38. Doe v. Eve, lb. 317. 
 Silvery v. Howard, 5 H. 253, or to "^4. and after her decease\ 
 to her children," Knocker v. Bunbury, 6 Bing N. S. 306. But 
 by the 28th section of the above act in wilJs made on or after 
 the above day, the devise of real estate without words of 
 limitation, shall be construed to pass the fee simple, or other 
 whole estate or interest of which the testator has power to 
 dispose, unless a contrary intention appear by the will.] 
 
 c c
 
 386 OF A OEVTSE. 
 
 of construction which are referred to in the notes 
 on this chapter. 
 
 The 32nd section enacts, That the devise to a 
 person for an estate tail shall not lapse by the 
 death of the donee in tail in the testator's life- 
 time, if he leave issue inheritable under the 
 entail. 
 
 By the 33rd section, a similar provision is 
 made in favour of gifts to children or other 
 issue of the testator who leave issue living at the 
 testator's death. 
 
 The following are the words of the clause : 
 ' Where any person, being a child or other issue 
 of the testator, to whom any real or personal es- 
 tate 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 
 testator's death, unless a contrary intention 
 appear. 
 
 [* If a legacy should be given to A., the child of the testator, 
 and A. dies in the testator's lifetime leaving issue B., who 
 also dies in the testator's lifetime leaving issue C, horn after 
 A.'s death, but who survives the testator, C. will not be 
 entitled, not being issue of ^. living at A.'s death.]
 
 OF A DEVISE. 387 
 
 Upon the last section it has been decided that Johmon v. j., 
 
 ^ 3 Hare, 157. 
 
 the legacy vests in the deceased legatee, and 8 j«r. n. 
 becomes subject to all the incidents of property 
 belonging to him, in the same manner as if he 
 had survived the testator ; and, consequently, 
 that it is subject to payment of his debts, to the 
 dispositions of his will, or, if he dies intestate, to 
 distribution of his effects under the statute ; and 
 that, although the existence of issue might be 
 the motive for this provision by the Legislature, 
 the issue were not the object of it. 
 
 It has also been determined that this section Griffiths v. 
 does not apply to a child, to whom a share oi a 354. 
 fund is given by the testamentary appointment 
 of a parent under a power of selection, and which 
 child dies in the lifetime of the donee of the 
 power. The language of the judgment would 
 seem to apply to all testamentary appointments 
 whatever ; but it may be submitted, whether the 
 thirty-third section, coupled with the first, does 
 not apply to testamentary appointments under 
 general powers, which give the donee an absolute 
 control over the property ; and, especially, where, 
 in default of appointment, the property is given 
 over absolutely to the donee.] 
 
 c 2
 
 388 
 
 _ CHAP. XV. 
 
 OF A FINE * 
 
 2 Bi. Comm. A FINE [now abolished as to lands in England 
 
 348.^ Co. i.7. ^^ ^^^ ^^^^^ 3 Sr 4 W. 4, c. 74, from the 31st 
 
 * [There were three sorts of fines in general use ; first, the 
 fine sur conusance de droit come ceo, &c. ; secondly, the fine 
 sur conusance de droit tantum ; and thirdly, the fine sur 
 concessit : the fine sur don grant et render was considered 
 obsolete. The fine sur con. de droit come ceo, &c, was most 
 usually adopted, and, indeed, from its peculiar force and 
 efficacy, was preferable in all cases where a forfeiture was not 
 apprehended, or would not be incurred by levying it. Forfei- 
 ture ensued where a mere tenant for life levied or accepted 
 this fine. Co. Litt. 251, b ; and where a person had merely 
 a right of action or of entry, or a contingent remainder, or 
 other executory interest, which did not give a vested estate, 
 and levied this fine, extinguishment took place. This first 
 species of fine is more especially the subject of discussion 
 throughout the present chapter. 
 
 The fine sur conusance de droit tantum was sometimes 
 adopted where the person levying it wished only to transfer 
 the estate or right which he actually had ; and was used to 
 transfer a remainder or reversion, or to surrender a life estate 
 where it was important to avoid the consequences of a 
 forfeiture. The fine sur con. de droit tantum was not, however, 
 often resorted to, as the same objects might be attained by the 
 third species of fine, the fine sur concessit, which was
 
 OF A FINE. 389 
 
 December^ 1833, and as to lands in Ireland by 
 the 4 ^ 5 TF. 4, c. 92, from the 3 1st October, 
 1834, was] the compromise of a fictitious suit, 
 and operated either by passing an interest, or by 
 way of estoppel.* 
 
 In order to pass an interest, the cosrnizor or Touchst. 13, 
 cognizee must, [at the time of levying the fine 99.] 
 have had] an estate oi freehold in the premises, 
 either in possession, remainder, or reversion, or 
 he must have been cestui que trust, of such an 
 estate ; for, otherwise, a person not bound by 
 estoppel might have vacated tlie fine by pleading 
 partes Jink nihil habuerunt.'f But whether the 
 
 frequently used, and was also adapted for the purpose of 
 conveying or binding a partial estate or interest, and without 
 incurring the risk of forfeiture. It was in use for the purpose 
 of conveying the life estate of a married woman, or for creating 
 terms for years which were to be binding by way of estoppel 
 on contingent or executory interests. 1 Prest. Con. 200. 
 5 Gru. Dig. Tit. 35, ch. 3, s. 10—25 ed. 4.] 
 
 * Thus, although a fiue levied by persons, who had no 
 estate of freehold in the lands, was void as to strangers, yet it 
 would operate as an estoppel against the persons who were 
 parties to it. Thus if two were seised in fee, and a stranger 
 levied a fine to them and to the heirs of one of them, the 
 other would be thereby estopped from claiming any thing 
 more than an estate for life in the lands. Shep. Touch. 14. 
 As to a fine operating by estoppel when levied by an expectant 
 heir, see Helps v. Hereford, ante, p, 229. 
 
 f If a tenant for years, wishing to acquire the fee, levied a 
 fine, it would have been a forfeiture of his term to him in 
 reversion, who might immediately have commenced an eject-
 
 390 OF A FINE. 
 
 freehold were in the cognizor or cognizee either 
 by right or by wrong, was of no consequence ; 
 and hence, when a fine was to be levied in order 
 to strengthen a title, a feoffment was often neces- 
 sary, as the cognizor or cognizee would then, at 
 least, have the freehold in him by disseisin.^ 
 
 ment for recovery of the possession, and if the fine were set 
 up against him, the plea o^ partes JimsiSfo\x\d effectually have 
 removed it ; and although he might not have commenced his 
 ejectment till five years after the fine, yet the non-claim would 
 not have hindered him, as the same plea would have been 
 available. If the reversioner allowed twenty years to elapse 
 after the levying of the fine, he must have changed his action, 
 but the plea would still have availed him. If, however, he 
 slept on his title for thirty years, his remedy would have been 
 entirely lost ; but if he died before thirty years, then his heir 
 would have had thirty years longer to bring his real action in. 
 See the former Statutes of Limitation, infra. [These Statutes 
 of Limitation have been repealed by the statute 3 <^ 4 W. 4^, 
 c. 27, by which material alterations are made in the mode 
 and limit of the remedies for the recovery of real estate; an 
 epitome of which will be found on a future page.] 
 
 * But if the feoffment vfere fraudulent, the fine might have 
 been reversed. See 3 Co. 78, in Fermor's case, Cowp. 694 — 5, 
 . &c. 1 Burr. 117, — Note by Mr. Watkins. 
 
 In Fermor's case, 3 Co. 78, a lessee for years had fee- 
 simple lands of his own in the same township where his lease- 
 hold lands were situate. He made a feoffment of the whole, 
 and thereupon levied a fine to the use of himself in fee ; he 
 still however continued to pay rent for the leasehold lands 
 until five years elapsed, when he set up the fine and non- 
 claim as a bar to his lessor. All the Judges (except two) 
 held, that the original lessor was not barred by this fine, 
 because of the becret and fraudulent manner in which it was
 
 OF A FINE. 391 
 
 If there were no interest in the person levying 
 the fine, none of consequence passed. The fine 
 in that case, if it operated at all, could only 
 operate by conclusion or estoppel. 
 
 levied ; and it was asked, how the lessor could make his 
 entry or bring his action when he knew not of the feofFment 
 which did the wrong? And as the lessee had lands in fee- 
 simple in the same town, every one would presume that the 
 fine was levied of that whereof it might lawfully be levied. 
 And although the fine contained in reality more acres than 
 the lessee's own lands, yet that was usual in almost all fines ; 
 and peradventure the lessor knew not the just quantity of the 
 lessee's own land, a knowledge which did not pertain to him ; 
 and the fraud it was said was the more odious in this case 
 because it occurred between the lessor and lessee, between 
 whom there was a trust and confidence. But when a disseisor 
 (although he gains a possession by wrong) levies a fine with 
 proclamations, it shall bind the disseisee if he permit five 
 years to run upon it, for a disseisor veiiit tanqtiam in arena, 
 and it is not possible but that the disseisee to whom the 
 wrong is done and who hath lost his possession, should be 
 conusant of it ; and therefore it will be his own folly if he 
 make not his claim in due time. Fermoi-'s case, 79, b. The 
 doctrine mentioned, ante, p. 298, was not meant to apply to 
 a case similar to the above, where there is only a short term 
 of years yielding a valuable ground or other rent, but only to 
 cases where a person is possessed of a long term, for instance, 
 of five hundred or one thousand years at the rent of a pepper- 
 corn, the reversion being remote and valueless. If such a 
 lessee assigned his term to A. B., and then entered and 
 delivered seisin on a feoffment, and levied a fine to the feoffee 
 to the use of himself in fee, and five years elapsed without his 
 noticing or acknowledging the original lessor, and without 
 auy mention having been made in the assignment of the
 
 392 OF A FINE. 
 
 Estoppel. All parties to a fine, whether any interest 
 
 passed or not, were concluded, as every one 
 should be concluded by his own deliberate act. 
 
 Hob. 333. Privies (who were also estopped,) were either 
 
 privies in estate, as the donor and donee ; in 
 Mood, as the heir and ancestor ; or in law, as 
 the lord and tenant, &c.* 
 
 intended feoflPment, this seemed a clear case of bar at law, 
 
 because there was no fraud as between the owner of the term 
 
 and the parties to the feoffment ; and it is apprehended that 
 
 a Court of equity would not presume that the trustee was 
 
 privy to the feoffment, merely because he held the term in 
 
 [ Sugd. V. |r P. trust for the feoffor. But whether the Court of Chancery 
 261, ed. 6.] .„ , , T . , J n. 
 
 will compel a purchaser to take a title, dependmg on a pomt 
 
 of this kind, is a question which has not yet been decided. 
 If there be no fraud at law, as it is assumed there is not in a 
 case thus simply circumstanced, the bare declaration of trust 
 in the assignment will not, it is conceived, constitute the case 
 a fraudulent one in equity ; see the case oi Reynolds v. Jones, 
 2 Sim. 8f Stu. 206, et ante, p. 287, 288. 
 
 * If a donee in tail levied a fine in fee, with proclamations, 
 and died without issue, and the donor or his grantee omitted 
 to enter or claim within five years after the death of the donee, 
 the donor was barred by force of the statute, as being privy 
 in estate. If an ancestor levied a fine, and a person claiming 
 the estate as heir could deduce his title only through that 
 ancestor, he would be estopped by the fine as being a privy in 
 blood ; but if he could make his title without claiming through 
 the person levying the fine, he would not be estopped. As 
 if an heir in tail levied a fine in the lifetime of his ancestor, 
 and died, leaving a son, and then the ancestor died, the grand- 
 son would be estopped by the fine as a privy in blood, for he 
 could make out his pedigree only through the person levying
 
 OF A FINE. 393 
 
 Strangers to a fine were all persons who were 
 neither parties nor privies. 
 
 In order to bar an estate tail by fine, the 
 privies must have been privies in estate : that the 
 issue were privies in blood only was not enough. 
 The issue, to be barred by a fine, must claim the 
 estate from the person levying it, or derive his 
 title through him. If lands, therefore, were given 
 to A. and the heirs female of his body, and he 
 had a son and a daughter, and the son levied a [Touch. Fine, 
 
 p. 27.] 
 
 fine and died, the daughter would not be bound ; 
 
 for though she was heir to the son, and so privy 
 
 in blood to him, yet she was not privy to him 
 
 in estate^ as she did not claim it from or through 
 
 him. But if lands were given to A. in tail 
 
 general, and his eldest son, in the lifetime of ^. 
 
 levied a fine, the entail would be barred on the 
 
 death of A. if the son survived him ; for the issue See Cro. Car, 
 
 of A. would be privies both in blood and estate stocky, scoveii, 
 
 . , , , ^ Sf al. Doe V. 
 
 to ^. S eldest son.* Jones, l Crom. 
 
 Sf Jer. 528. 
 
 the fine. But where an eldest son levied a fine of an estate 
 which was then vested in his mother in tail, and died in her 
 lifetime without issue, and the estate descended to his brother 
 as next heir in tail, it was adjudged, that this fine did not 
 bar the brother ; for as the estate tail never descended to 
 the elder brother, the younger brother was not privy to him. 
 Bradstock v. Scovell, Cro. Car. 434, et infra in the text. 
 The estoppel by privity in law, mentioned in the text, seems 
 to be inapplicable to any case likely to occur at the present 
 day. 
 
 * But the eldest son's issue would be barred by the fine.
 
 394 OF A FINE. 
 
 1 F«ar?»e, 535. If a Contingent remainder were limited to A. in 
 tail, and before the contingency happened, he 
 levied a fine, his issue would be barred ; for 
 though A. was never seised of an estate of free- 
 hold in the lands so entailed, yet, as whoever 
 claimed such lands by virtue of the entail must 
 have claimed/ro7w him as the first taker, they must 
 have been privies both in blood and estate to him, 
 and so be bound by the statute.* 
 
 although he himself should not survive his father, for his issue 
 could only claim through the person who levied the fine, 
 [there being privity in blood in respect of the estate tail.] 
 
 * If the owner of an estate in fee subject to an executory 
 devise levied a fine, and five years elapsed after the event 
 happened upon which the estate was to go over to the exe- 
 cutory devisee, it is not settled whether such fine and non- 
 claim would bar the executory devise. In deciding this 
 question, it will be first necessary to consider, whether the 
 possession of the tenant in fee after the executory event has 
 happened is adverse to the title of the executory devisee who 
 makes no entry or claim. If the possession be withheld after 
 entry or claim, then such detention of the possession is a 
 species of deforcement ; but until entry or claim, the tenant 
 in possession, having entered by lawful title, is to be viewed 
 as a tenant at sufferance ; and we have seen (ante, p. 24,) that 
 the possession of such a tenant is not adverse to the person 
 entitled to enter ; if so, the non-claim on the fine cannot 
 commence until the executory devisee has entered or claimed. 
 [2 Prpst. Abs. If a tenant in tail [previously to the statute 3 c^- 4 fT. 4, 
 .508, &C.J ^ 27^ s. 39, discontinued, which must have been] by a tortious 
 
 conveyance and took back a base fee, and then levied a fine 
 and retained possession for five years after the base fee had 
 determined, the remainderman or the reversioner would have 
 been barred, because the discontinuance, being by tortious
 
 OF A FINE. 395 
 
 So, if lands were given to A. and B., and the i Fearne,ozi, 
 hens of the body of the survivor, and they n. (i)toCo. 
 joined in levying a hne, the entail would be 
 barred ; as the issue, who would claim the entail, 
 must be privy both in blood and estate to one or 
 the other of them ; and they were both bound by 
 the fine. 
 
 So, if lands were aiven to husband'*and wife [Cruise, Dig. 
 
 . . 5, c. 9, s. 12. 
 
 and the heirs of their two bodies, and the bus- 8 Co. 72. 
 
 . ^ . Beaumont's 
 
 band alone levied a tine, the issue would, at case, 9 Co. 
 
 least before the statute 32 Hen. 8, c. 28, s, 6, cro. car. 476.] 
 have been barred, as they must have been privy 
 both in blood and estate to the husband as well 
 as to the wife.* 
 
 conveyance, turned their estates into mere rights, and con- 
 stituted in itself a possession adverse to those in remainder : 
 but it would have been otherwise if the conveyance by the 
 tenant in tail had been by an innocent assurance, as then the 
 estates of those in remainder would not have been divested, 
 and the fine being then only of the base fee, would not have 
 affected remaindermen. This case, therefore, seems different [Seymor's case, 
 from that where a fine was levied by a tenant in fee subject to "^ ^^^P- ^^l 
 an executory devise : such a fine might be properly levied, 
 and the effect was merely to pass the estate, not to destroy 
 or divest the executory devise, which was but a bare right till 
 the executory event happened; then it became an estate; 
 and if the former tenant, retaining possession afterwards, 
 levied a fine, and the executory devisee allowed five years to 
 elapse without entry or claim, he might well enough have 
 been barred. 
 
 * The same consequence would, it ih apprehended, ensue 
 since that statute. The statute enacts {s. 6j, that no fine by
 
 396 OF A FINE. 
 
 [5 Cru. Dig. A widow IS prohibited by statute from levvine 
 
 ch. 13, s. 25. . ^ => 
 
 II Hen. 7, a fine of lands moving from her husband. 
 
 c. 20. 32 Hen. ^ 
 
 8, c. 36, s. 2. 
 
 w. 4, c. 74, So, if a gift be made by the crown as a reward 
 
 ss. 16, 17.1 f, , ••11 • -1 
 
 34&35 Hen. lor services, to a person in tail, the tenant in tail 
 
 Q ^ on 
 
 [3&4 k 4, is restricted from barring such entail by statute. 
 
 c. 74, s. 18.] 
 Cov. Rec. 221. 
 
 A fine is no bar to a remainder or reversion 
 
 the husband alone of any lands, being the inheritance or 
 freehold of his wife, during the coverture between them, shall 
 in any wise be a discontinuance thereof, or be prejudicial or 
 hurtful to the said wife or to her heirs : but that the same 
 wife and her heirs may lawfully enter into all such lands any 
 such fine, feoffment, or other act to the contrary notwith- 
 standing. — The husband and wife are tenants by entireties in 
 tail ; if the husband died, the entire estate tail survived to 
 the wife, who might have levied a fine or suffered a recovery 
 thereof to the use of herself or a stranger in fee ; but if she 
 died without having destroyed the entail, it descended to the 
 issue, who, though they inherited from their mother, as the 
 person last seised, were obliged to make their pedigree 
 through their father also ; and he having levied a fine, the 
 descent through him was estopped, and the issue, being thus 
 heir to one only of the donees could not inherit. Greneley's 
 case, 8 Co. 71, b. The statute of If. is obviously confined to 
 inheritances of the wife alone, and does not embrace inherit- 
 ances of which she is seised jointly/ with her husband. As 
 against the wife surviving, the husband's fine would not be 
 available, unless the land originally belonged to the husband. 
 Then, indeed, she would be a tenant in tail of the gift or 
 provision of her husband, and could not alien in fee after her 
 husband's decease without the consent of the heir in tail, or 
 the person next entitled in remainder, vide Stat, of Jointure, 
 infra, ch. Stats.
 
 OF A FINE. 397 
 
 which is in another person, so he claim within 
 the time prescribed by the statutes ; for the re- 
 mainderman, or the reversioner, claims para- 
 mount the cognizor : but, if the tenant in tail 
 have the reversion in himself, he may pass a 
 clear fee. The operation of a fine [previously 
 to the statutes 3 Sf 4W.4, c. 74, s. 39, and 4 ^ 5 
 lb. c. 92, s. 37,] in the latter case, would be this: 
 — The tenant in tail would, by such fine, pass a 
 base fee to the cognizee, derived from the estate i saik. 338. 
 
 o 1 • 1 Symonds V. 
 
 tail, and also a clear and absolute- fee of which Cudmore, 
 
 , . . J ^ r ^ ^ Bumf. Sf 
 
 he was seised in reversion ; and as two tees cannot East, io9, 
 subsist together in the same person, the base fee 
 would merge in the absolute one, which conse- 
 quently, would come immediately into possession : 
 [but by the above acts, the base fee, upon the 
 union with tiie reversion, is enlarged into an 
 absolute fee so as to exclude the reversion.] 
 
 But as a tenant in tail miffht charge his re- [5 Cm. Dig. 
 
 . . . tit. 35, c. 9, 
 
 version, [care was requisite in bringing the re- s, 53. c. 12, 
 
 s. 10. 76. tit. 
 
 version into possession, lest the charges should] 36, c. 7,s. 30.] 
 immediately attach. It was, therefore, often 
 prudent to suffer a recovery ; which gave a new 
 fee not subject to those charges.* But, even in 
 
 * But unless some encumbrance appeared, or the title to 
 the reversion was not clearly deduced, the Court would not 
 compel a vendor to suffer a recovery on a mere conjecture that 
 the reversion had been encumbered. Thus, in a late case, 
 (Sperling v. Trevor, 7 Ves. 497,) upon an exception to the 
 master's report in favour of the title, the objection was, that
 
 398 OF A FINE. 
 
 the case of a recovery, the estate would be 
 chargeable as to the acts of the recor^eree himself, 
 upon the principle that no man shall be permitted 
 to defeat his own charges by an act of his own. 
 A recovery, therefore, only let in the charge of 
 the person suffering it, while a fine let in the 
 
 one Elizabeth Baker ought to join in a recovery ; the title 
 being derived from John Paine, who in 1693 limited the estate 
 to the use of himself for life, with remainder (subject to a 
 term) to uses which never arose ; with remainder to his 
 daughters in tail ; with remainder to himself in fee. Under 
 these limitations, Elizabeth, an only daughter, became seised 
 in tail, with the immediate reversion to her father, who made 
 a will, not executed so as to pass real estate, whereby he 
 devised all his estate to his second wife. Upon his death, 
 Elizabeth his daughter entered, and levied a fine to the plain- 
 tiff in fee. The defendant, the purchaser, suggested, that the 
 ultimate remainder in fee might have been disposed of by 
 John Paine, and if so, it could not have been barred by the 
 fine which had been levied, therefore he insisted on a recovery 
 to clear up all doubt. The Lord Chancellor, however, held 
 that a recovery was not necessary, and decreed the purchaser 
 specifically to perform his contract. 7 Ves. 497. 
 
 It will occur to the learned reader, says Sir Edward Sug- 
 den, that, notwithstanding the defendant's suggestion, it was 
 highly improbable that the reversion was disposed of by John 
 Paine in his lifetime, such an interest not being marketable ; 
 and as he devised all his estate by his will, there was no 
 ground to presume that he made another will. Upon his 
 death, therefore, the reversion descended to his daughter, who 
 by her fine reduced it into possession, and, consequently, no 
 encumbrance could afterwards be created upon it, as a rever- 
 sion distinct from the particular estate. Sugd. V. ^- P. 314, 
 ed. 6.
 
 OF A FINE. 399 
 
 charges of the ancestors seised of the reversion, as 
 well as those of the cognizor. 
 
 As a recovery immediately barred remainders 
 over in another, which a fine would not do, as 
 well as prevented the charges of the ancestor of 
 the recoveree from attaching, it was generally the 
 most effectual assurance.* A fine, however, was 
 sometimes preferable, and often the only assurance 
 to be adopted. t 
 
 * Especially as the extra cost of a recovery over a fine was 
 in general found to be less than the expense of investigating 
 and proving the title to the reversion. 
 
 [f As where the person seised of the first estate of freehold 
 would not, or from absence abroad or mental incapacity could 
 not, concur in making a tenant to the prcecipe. Sometimes, 
 too, it happened that delay in barring the estate tail would lead 
 to very serious inconvenience to the parties interested, and 
 a fine was resorted to from necessity, as a recovery could be 
 suffered in Term time only ; but a fine might be levied during 
 the Vacation.] If, again, the tenant in tail was dangerously 
 ill in the Vacation, and he wished to acquire the fee for the 
 purpose of devising it in a different channel frorii that pre- 
 scribed by the entail, as a recovery could not be suffered till 
 the ensuing Term, the next best step was to acknowledge a 
 fine to the intended tenant to the prcecipe, preparatory to a 
 recovery being suffered, with uses for the benefit of the 
 tenant in tail until the recovery should be completed ; as 
 then the entail would be barred at all events, and the tenant 
 in tail might, in a subsequent Term, should he survive, suffer 
 a recovery, and the fine and recovery would both together 
 form but one assurance. [If he did not survive, the] base fee 
 acquired by the fine might then be devised, either for 
 payment of debts, or among children and relatives, instead of
 
 400 OF A FINE. 
 
 1 Co. 84, a. A fine would, in certain cases, bar hy estoppel 
 
 where a recovery would not do so.* A fine 
 might be levied of an entail in remainder without 
 the concurrence of the person having the free- 
 hold ; but a recovery could not be suffered but 
 by the act of the person having the freehold in 
 possession. '\ 
 
 [5 Cru. Dig. But, in ordcr to bar an estate tail, whether in 
 
 tit. 35, ch. 9, . ' ^ .^ n .l i i 
 
 s. 9. 48.] possession or remainder, the nne must nave been 
 
 ' *' ^* with proclamations, according to the statute ; for 
 otherwise it would only work a discontinuance. "j^ 
 
 being permitted to descend to the next heir in tail, who 
 might possibly be of distant kindred. 
 
 [* In the recent case of Doe v. Oliver, 1 Barn. <^ Cress, 
 181, an estate was devised to A. for life, with remainder to 
 such of the children of B. as should be living at the death of 
 A., in fee. B. had one daughter, who, with her husband in 
 A.'s lifetime, levied a fine come ceo, &c. to C. It was decided 
 that the fine of a contingent remainderman had a double 
 operation ; and that though it operated by estoppel during the 
 contingency, it did not operate by estoppel only, but had 
 an ulterior operation when the contingency happened ; that 
 the estate, which then became vested, fed the estoppel ; and 
 that the fine operated upon that estate, as though it had been 
 vested in the conusors at the time the fine was levied.] 
 
 f So a fine was the preferable assurance for obtaining a 
 speedy bar by non-claim. On a recovery the bar was 
 measured by the Statute of Limitations. On a fine it accrued 
 in five years from the last of the four proclamations, that is, 
 in fact, in six years from the time it was levied. 
 Discontinuance t -^ discontinuance caused a suspension of the title under 
 the estate tail, and gave a new and wrongful title to an
 
 OF A FINE. 401 
 
 If a married woman were a ijarty to a fine, it i/argr. n. (i) 
 
 1111 ... n 1 , to Co. Litt. 
 
 would bar her, it being a matter ot record, as the i2i,a. 
 
 estate in fee -simple by force of the alienation. It was an 
 
 abandonment of the estate tail, and the assumption and 
 
 conveyance of a new and wrongful estate in fee. If a tenant 
 
 in tail discontinued and took back an estate tail, the new 
 
 entail would devolve in the channel marked out by the 
 
 discontinuance, and not in that prescribed for the entail 
 
 discontinued. But to enable a tenant in tail to create a [Doe v. Jones, 
 
 discontinuance, he must have been seised of the immediate 238''242 &c" 
 
 estate of freehold in fact or in law by virtue of the entail ; if ^ ^''- §" '^''^■ 
 
 528 1 
 he had a mere right, or an estate tail in reversion, his 
 
 conveyance would not thus operate. In Boe v. Elliott, 1 
 Barn. ^ Aid. 85, a tenant in common in remainder levied a 
 fine of the entire estate and afterwards obtained possession 
 of the whole premises. His companion brought an ejectment 
 against him, when it was objected that the fine operated by 
 discontinuance, and that an entry was therefore necessary to 
 avoid the fine in order to support the ejectment. The Court 
 held otherwise and gave judgment for the plaintiff. 
 
 The consequence of a discontinuance [previously to the 
 statute 3 ^ 4 ?F. 4, c. 27, s. 39, was] that it took away 
 from the issue and remaindermen their right of entri/, and 
 from the remaindermen and reversioner their power of alien- 
 ation to a stranger. It converted the interest of these persons 
 into rights of action, which could not be devised or assigned, 
 but such rights might be released to the person in possession 
 or bound by estoppel ; and the action to be used for the 
 restoration of these rights was not an ejectment, but a species 
 of real action called aformedon, which, as to the issue, could 
 not be commenced until after the death of the tenant in tail, 
 and as to those in remainder could not be maintained until 
 after a failure of the issue and a determination of all prior 
 remainders ; moreover such a writ must have been brought 
 
 D D
 
 402 ' O'' '^ FINK. 
 
 compromise of a suit ; and in levying it, the 
 
 wife was examined apart from the husband, 
 
 that any compulsion on his part, might, as much 
 
 pzoM'j. 514. fjs possible, be avoided. A fine, therefore, was 
 
 Eare v. Snoiv. ' .1.1. 1 n 
 
 essential to give validity to her conveyance ot 
 freehold lands (except where a recovery was re- 
 
 within twenty years after the right had fallen by the former 
 Statute of Limitations, 21 Jac. 1, c. 16. 
 
 [But now by the stat. 3 4-4 W. A, c. 27, s. 39, it is enacted, 
 
 that no descent cast, discontinuance, or warranty, shall, 
 
 after the 31st day of December, 1833, toll or defeat any 
 
 right of entry or action : and, by the 36th section, real and 
 
 mixed actions, and, among others, writs of formedon are 
 
 abolished.] 
 
 \^Feariie, Post. But the tenant in tail discontinuing, and also the issue in 
 
 and'^consider tail for the time being after his death, provided the entail 
 
 Beaumont's g^g^. g^yg jj vested interest, might bar the entail by fine, 
 
 case, 9 Co. 1 40, " , i i i ., 
 
 a. b.] and the remainders by recovery, although the entail and 
 
 remainders had.no continuance as a seisin, and by that means 
 convert the base fee created by the discontinuance into a 
 fee-simple, and the tenant of the base fee might, by fine with 
 proclamations and five years' non-claim, bar the issue and 
 remaindermen after their rights had accrued. A distinction, 
 however, should be noticed as to the power of the tenant of 
 the base fee to obtain the effect of non-claim. If his estate 
 were created by an innocent assurance, then his fine [levied 
 during the lifetime of the tenant in tail who created the base 
 fee would] be nugatory on the issue and remaindermen ; but 
 if his estate were created by tortious alienation, then the 
 entail and remainder having been once discontinued, and the 
 interests under them turned into mere rights, the non-claim 
 on the base-tenant's fine would bar those divested rights. 
 This subject is amply discussed in 1 Pres. Abs. 367, 375. 
 2 lb. 306, 318, 413, e< infra, ch. Rec. last note there.
 
 OF A FINE. 403 
 
 quired,) and was most commonly levied for the 
 purpose of barring her claim to dower.* 
 
 * Equitable estates and interests in married women re- 
 quired the aid of a fine or recovery to pass or encumber them, 
 in the same manner as if the estate or interest were legal, 
 except in the instance of a conveyance to trustees in trust for 
 the separate use of a married woman, with power for her to 
 assign and dispose of the same notwithstanding her coverture. 
 The maxim is equitas sequitur legem ; and in all cases where 
 a fine or recovery would be necessary if the estate were legal, 
 there a fine or recovery was requisite to pass an equitable 
 estate or interest. In Wright v. Cadogan, 2 Eden, 258, Lord 
 Northington observed, " that there was no rule so certain, 
 so general, and so strongly adhered to by the ablest judges 
 who had presided in equity, as to observe in omnibus the 
 rules of law with respect to the regulation of property, and 
 that such rules had been always strictly observed as principle 
 in a Court of equity ;" and per Lord Hardwicke there are 
 but two ways by which a married woman can prevent the 
 inheritance of an estate settled to her separate use from 
 descending upon her heir at law, namely, by reserving such 
 power to herself by a conveyance to uses and trusts before 
 the marriage, or else by fine, in which she and her husband 
 shall join after the marriage, with a deed to lead the uses of 
 it, reserving such power to herself And his Lordship denied 
 that a woman having a real estate before marriage could, in 
 consideration of that marriage, enter into an agreement with 
 her husband, that she may, by writing under her hand exe- 
 cuted in the presence of witnesses, or by will, dispose of her 
 real estate. He said that this rested in agreement, and that 
 though it might bind her husband from being tenant by the 
 courtesy, yet that it could not bind the wife's heir. Hence 
 it is inferred that Lord Hardwicke was of opinion that the 
 mere limitation of a real estate to the separate use of a married 
 woman and her heirs does not confer upon her the power of 
 D D 2
 
 404 OF A FINF.. 
 
 [Now by the stal. 3^4 W. 4, c. 74, a married 
 
 woman may, by a deed in conformity with its 
 
 provisions, not only bar her dower, but, with the 
 
 concurrence of her husband, dispose of her real 
 
 Sees. 41, Sfc. estate in the same manner as if she were a feine 
 
 77. 79, 8fc. ^ 
 
 so/e.] 
 
 disposing of the reversion as she pleases. Mr. Roper, in 
 treating of this subject, thus lays down the doctrine : — With 
 respect to rents and profits of real estates, a gift of them to 
 the wife for her separate use enables her to dispose of them 
 as Q.feme sole in the same manner as she may do of personal 
 estate so limited to her : but in the following respect there 
 is a difference between the two estates ; a limitation of real 
 estate to the wife in fee to her sole and separate use, without 
 expressing more, will not enable her to dispose of it during 
 the marriage otherwise than hy fine or recovery ; because no 
 power having been given to her by the instrument to make 
 any disposition of the property, she can only do so by the 
 mode prescribed by the general law, and if she omit to do 
 so her heir will take the estate ; but it has been settled that 
 when personal property is given or agreed to be given, to 
 the separate use of a married woman, she may dispose of it 
 as a feme sole to the full extent of her interest, although no 
 particular form to do so is prescribed in the instrument for 
 the purpose. 2 Rop. Bar. 8f Fern. 185, citing 1 Bro. 
 C. C. 16. 
 
 [The late case of Doe v. Scott, 4 Bing. 505, confirms the 
 preceding distinction so far as respects real estate : there an 
 estate was devised to a trustee in fee in trust for the separate 
 use of -S'. -S'., and to convey the same to her, her heirs and 
 assigns, free from the debts and control of her present or any 
 future husband, and to permit her to take the rents and 
 profits. S. S. being married, devised the property in ques- 
 tion, and died in the lifetime of her husband : the Court of 
 C. B. decided, that S. S. had no power to devise.]
 
 OF A FINE. 405 
 
 As an use immediately arose on a fine, such SeeWatk.on 
 use was immediatelv executed by the statute, (2). p. 28, 
 
 1 • . , 1 1 , 1 1 I • 2d edit. 
 
 and migiit bo led or declared as the parties 
 pleased.* 
 
 The proper way of limiting real estate to a married woman 
 for her separate use is to convey it to trustees and their 
 heirs to such uses as the wife shall, whether single or covert, 
 direct or appoint, and in default of appointment and subject 
 thereto [to the use of the trustees during the wife's life, upon 
 trust to pay the rents to her separate use, either with or 
 without the clause restraining anticipation, and after her 
 decease, to the use of the wife her heirs and assigns,] with a 
 clause making the receipts of the wife or the person to whom 
 she should appoint or assign the same valid discharges, with 
 a power in the wife to change the trustees as often as shall 
 be necessary. 
 
 [* Mr. Butler in his valuable note to Co. Lift. 271, b, 
 observes, " With respect to a feoffment, fine, and common 
 recovery, the transfer or transmutation of the possession from 
 the feoffor, conusor, and recoveree to the feoffee, conusee, 
 and recoveror, is effected solely by the operation of these 
 conveyances or assurances at common law ; and if the use is 
 declared to the feoffee, conusee, or recoveror in fee simple, 
 the conveyance is completed at the common law, in the same 
 manner as if the Statute of Uses had never passed. It is 
 only when the use is declared to a third person that the 
 statute has any operation ; and then by the operation of the 
 statute, the possession previously transferred or transmuted 
 to the feoffee, conusee, or recoveror, by the operation of the 
 feoffment, fine, and common recovery at the common law, is 
 divested from the feoffee, conusee, or recoveror, and vested 
 in the cestui que use by the statute. Vid. sup. pp. 266, 267. 
 
 We may in this place remind the student that, with the
 
 406 OF A FINE. 
 
 exception of the bars by estoppel and non-claim, all the 
 advantages which formerly resulted from a fine, may now be 
 obtained by a deed of disposition in conformity with the 
 statutes by which fines were abolished : and the power of 
 alienation possessed by the tenant in tail through the medium 
 of a fine, is now considerably extended by the beneficial 
 provisions of those statutes which substitute a more simple 
 and less expensive mode of assurance.]
 
 407 
 
 CHAP. XVL 
 
 OF A RECOVERY.* 
 As a fine was the compromise ot" a fictitious -i bi. Comm. 
 
 357. Touchst. 
 
 suit, so a recovery was a fictitious suit carried on c. 3, p. 37. 
 
 Pig. on Itecov. 
 to judqment. 5 Cruise, Dig. 
 
 tit. 36, ed. 4. 
 
 By the common law, the person who had the. 
 immediate freehold, or freehold in possession, 
 was to answer the claims of strangers. Against 
 him the writ, or prcBcipe, was brought. Hence, 
 no recovery could be suffered unless the i^ecoveree 
 had the freehold in possession in him ; as the re- 
 covery, or suit, was founded on the pi'cecipe, which 
 could only be sued out against the tenant of the 
 freehold. 
 
 A person therefore, who had an estate tail in 
 remainder, could not suffer a recovery alone ; the 
 tenant of the particular estate of freehold in pos- 
 session must have concurred, against whom, or 
 
 [* Now abolished as to lands in England by stat. 3^-4 
 W. 4, c. 74, from 31st December, 1833 ; and as to lands in 
 Ireland by stat. A ^- o W. 4, c. 92, from 31st October, 1834.]
 
 408 
 
 OF A RECOVERY. 
 
 against wliose alienee, the prcBcipe must have 
 
 been brought ; and the remainderman must 
 
 have come in by voucher. A recovery might 
 
 5Cr>i. Dig. indeed, have been suffered of a trust estate with- 
 
 384, ed. 4. ' . , , 
 
 So a recovery out the coucurrcnce 01 the person m whom the 
 
 might be of i i i • i -r» 
 
 Tithes, &.c.\>y legal estate was vested ; but this was only irom 
 
 the itat. 32 . i • i 
 
 Hen.Zyc.i, necessity, and to preserve an analogy m the as- 
 
 s. 7. 
 
 surance, or mode of destroying an estate tail.* 
 
 Equitable 
 recovery. 
 
 * A recovery of the equitable estate must in all respects 
 have corresponded with a recovery of the legal estate, so as to 
 keep up a strict analogy between them. 
 
 1st. There must have been a recovery deed, or rather a 
 conveyance of the equitable freehold to the tenant to the 
 praecipe, if it was intended to suffer the recovery with double 
 voucher. 
 
 2nd. There must have been an original writ, with judgment 
 and execution thereon, the same as in a legal recovery ; for 
 there was not any distinction as to form and ceremony between 
 an equitable and a legal recovery. 
 
 3rd. There must have been a good tenant to the praecipe. 
 He must have had an estate of equitable freehold ; that is, a 
 right to the immediate beneficial interest in possession. Thus, 
 if the legal estate in fee was limited to trustees in trust for B. 
 for life, with remainder in trust for C. in tail, with remainders 
 over, C. could not suffer an equitable recovery without the 
 concurrence of B. But it was not requisite that the tenant 
 to the praecipe should have the equitable distinct from the 
 legal freehold ; the legal estate in him was not any objection 
 to an equitable recovery. 3 Ves. 126, 276, Thus if A. was 
 the owner of both the legal and equitable estate for life, his 
 concurrence was nevertheless necessary ; and a recovery 
 suffered on a writ brought against a tenant, to whom the legal 
 estate had been conveyed in conjunction with the beneficial 
 interest, was deemed an equitable recovery. 1 Bro. C. C. 72. 
 3 P. Wms. 171. 3 Ves. 128. In a case where the legal estate
 
 OF A RECOVERY. 409 
 
 The person against whom the writ was brought 
 was called the tenant^ as he was always the imme- 
 
 was limited into and to the useof ^. for life, with remainders 
 over, and afterwards the next remainderman covenanted to 
 settle the estate on him in tail, so that he had an equitable 
 estate tail and a legal estate for life, and A. suffered a recovery, 
 it was objected that he, being a tenant for life at law, ought 
 first to have obtained a conveyance according to the articles, 
 in order that he might have been seised of the legal estate in 
 tail likewise ; in effect, that a recovery suffered on a tenancy 
 to the prcecipe so constituted could not bar the equitable 
 estate-tail and remainders over. But the Court held other- 
 wise. 2 Freem. 180. 1 Ch. Ca. 49, 213. 
 
 A recovery by a tenant in tail of an equity of redemption, 
 expectant on a mortgage in fee enlarged the equitable estate- 
 tail into an equitable fee-simple. If the mortgagee joined, 
 the recovery was partly legal and partly equitable, although 
 it was not open to objection on that account. 
 
 [Until the recent case of Nouaille v. Greenwood, I Turn. 
 4" Rv^s. 26, it does not seem to have been settled, whether 
 the concurrence of the mortgagee was essential to the validity 
 of the equitable recovery ; and in order to obviate the doubt 
 upon the title, it was considered imprudent to dispense with 
 his concurrence. In that case the mortgagee did not concur, 
 and the recovery was considered valid. The student will 
 find the arguments for and against the validity of the recovery 
 stated with perspicuity and accuracy in a note by Mr. Butler, 
 Fearne's C. R. p. 61, ed. 8.] 
 
 4th. There must have been a voucher of the equitable 
 tenant in tail and a recovery over in value against the common 
 vouchee, in order to bar the equitable entail. 2 Ch. Ca. 63, 
 78. 
 
 5th. The remainders must have been equitable as well as 
 the particular estate. Thus, under the old uses to bar dower, 
 a conveyance was made to ^. and B. and the heirs of the said
 
 410 OF A RECOVERY. 
 
 diate tenant of the freehold. The person suing 
 the writ was called the demandant^ as he claimed 
 or demanded the premises as his right and inhe- 
 ritance, alleging that the tenant had disseised 
 hina, or at least had come in under the disseisor, 
 or in the post. The tenant then called on the re- 
 mainderman, or the person under whom he claimed, 
 to warrant his title, which was denominated 
 vouching the person, who was thence called the 
 vouchee. The vouchee either vouched over, or 
 
 A., nevertheless as to the estate of the said B. in trust for 
 the said A.^s, his heirs and assigns. A. died in the lifetime of 
 B., and conceiving himself to be entire owner, devised the 
 estate to C. in tail, who suffered a recovery, without the con- 
 currence of B., which was held bad. 3 Barn. ^ Cress. 799. 
 By the above limitation A. and B. took as joint-tenants for 
 life, with a several inheritance to A. in fee ; on A.'s death 
 the whole estate survived to B., who nevertheless held it in 
 trust for C. : so that C. had the equitable freehold for the 
 life of B., and a legal remainder in tail. His recovery could 
 only operate on his equitable interest ; and consequently the 
 legal entail and remainders were not barred. But though an 
 equitable recovery would not affect the legal estate nor any 
 interest therein, a legal recovery would, if the person suffering 
 it had also the beneficial ownership, bar both the legal and 
 equitable entail, remainders, and reversions ; yet it should be 
 kept in review, that an equitable remainder, though in the 
 person who had the whole legal fee, might be barred by an 
 equitable recovery, [as where an estate was conveyed into and 
 to the use of A. and his heirs in trust for B. in tail, remainder 
 to A. in tail, a recovery by B. without the concurrence of -^. 
 would bar A.'s remainder.] 3 Ves. 120. 18 lb. 395, 419. 
 11 East, 458. S. C. contra. 3 Taunt. 316. See further on 
 this subject, Grenville v. Blyth, 16 Ves. 224. Gov. Rec. 321.
 
 OF A RECOVERY. 411 
 
 made default.* On default made, judgment 
 was given that the demandant should recover 
 against the tenant, and that the tenant should 
 recover against the vouchee or warranter and so 
 on, which was called the recovery in value, or re- 
 compence, and was always supposed to go as the 
 lands would have gone if they had not been re- 
 covered. 
 
 When the precipe was brought immediately 
 against the tenant in tail, it only barred him of 
 the estates of which he was then actually seised. 
 It was therefore usual for him to convey an estate 
 of freehold to another person, that the prcecipe 
 
 * He never made default, but always vouched over the 
 common vouchee. It was the common vouchee who made 
 default, and on that default judgment was given that the first 
 voucher be recompensed by the common vouchee for the 
 lands lost by his inefficient warranty. This recompense 
 (consisting of lands of equal value) was supposed to pass from 
 the common vouchee to the first vouchee, to be holden by 
 him in tail with remainders over, in the same manner as he 
 held the lands recovered from him ; and this fictitious recom- 
 pense was the sole cause of bar. Whence it is evident, that 
 if the first vouchee made default, there was no one from whom 
 he could recover a recompense to descend in the channel 
 marked out by the original gift ; and consequently, that the 
 issue and remainderman would not be barred. The import- 
 ance of a voucher of a common vouchee is hence apparent. 
 In practice, it was common to require evidence of this voucher; 
 but, as it was mentioned in the exemplification that the 
 common vouchee was vouched over, it was not necessary to 
 go further. Indeed, a recovery could not be recorded without 
 a voucher of the common vouchee.
 
 412 OF A RECOVERY. 
 
 might be brought against such person (who was 
 called the tenant to the prcecipe), and that such 
 person might vouch the tenant in tail ; for if the 
 tenant in tail came in as vouchee, it barred every 
 latent right and interest which he might have in 
 the lands. 
 
 If the prcBcipe was brought immediately against 
 the tenant in tail, and he vouched over the com- 
 mon vouchee, it was called a recovery with siyigle 
 voucher ; if against the tenant of the freehold, 
 and he vouched over the tenant in tail and the 
 tenant in tail vouched over the common vouchee, 
 it was called a recovery with doiible voucher ; 
 and so on, according to the number of persons 
 vouched. And it was always proper to suffer a 
 recovery with at least a double voucher, if an 
 entail was to be barred, for the reasons before 
 alleged. 
 
 Ante,\i.2.c. A rccovcry barred not only an estate tail, but 
 
 \5, ^ vide jiokt, ,, . 1 . . ./. 
 
 b. 3, c. 4 all remainders or reversions expectant upon it it 
 
 [ Blosse V. Cla7i- . • i /-^ jt 
 
 morris, ante, thev wcrc not lu the Crown.* 
 
 p. 222.] 
 
 * It expanded the entail into a fee commensurate with the 
 
 estate of the person who created the entail, at the same time 
 
 barring and destroying all remainders and reversions over, 
 
 which after an estate tail are considered as mere ciphers. 
 
 5 T. R. 107. A fine, on the contrary, extinguished the 
 
 IDoe V. Lord estate tail and accelerated the reversion. Cross and contin- 
 
 ^carfcorottirA, gg^^ remainders were also barred by a recovery, and all 
 
 2.] conditions, springing, shifting, secondary and future uses, 
 
 collateral and conditional limitations, executory devises,
 
 OF A RECOVERY. 413 
 
 The recoveror, generally speaking, on his 
 recovery, gained a clear and absolute fee of 
 the premises, freed from all charges but those 
 of the recoveree. Hence it was preferable, in 
 
 powers, authorities, and other estates and interests annexed 
 to the estate tail, and also all rents, liens, charges, and 
 incumbrances subsequent to the same, provided the recovery 
 was suffered before the condition or event happened on which 
 the proviso or conditional limitation was to take effect. Bull. 
 Fearne, 73, 428, 7th ed. 1 Mod. 108. 2 Lev. 29. 2 Salk. ' 
 570. Pig. lie. Cowp. S79. 4 Burr. 1930. 5 Madd. 37 1. 
 8 Taunt. 861, where a power of sale was held destroyed by 
 a recovery. But this was the effect of a recovery when 
 suffered by a tenant in tail, whose proper and peculiar mode 
 of assurance [previously to the recent statutes 3^4 fV. 4, 
 c. 74, and 4 c^' 5 lb. c. 92, was] a recovery. When a recovery 
 was suffered by a tenant in fee simple, it operated merely as 
 a conveyance not as a bar. Hence an executory devise on 
 an estate in fee could not be barred by a recovery ; but if it 
 was annexed to an estate tail) it might, ante, p. 212. 
 
 Another peculiar effect of a recovery by a tenant in tail 
 was to render valid all former acts of ownership exercised 
 by him, and to confirm and let in all his preceding incum- 
 brances. Thus if he made a lease contrary to the statute, 
 mortgaged his estate tail, acknowledged a judgment, entered 
 into a recognizance, or executed a bond, and then suffered a 
 recovery, the several incumbrances thereby became available 
 charges on the inheritance, and took precedence of any estate 
 created by the recovery. If a tenant in tail made a settle- 
 ment by lease and release, and then suffered a recovery, it is 
 apprehended that this recovery would not deprive the cestuis 
 que use under the settlement of the legal estate. Before the 
 recovery those persons had a base fee, which the recovery 
 enlarged into a fee-simple. As to the effect of a recovery on 
 a prior will, see I Pow. Mortg. 112, a. 113.
 
 414 
 
 OF A RECOVERY. 
 
 some cases, to a fine, though a fine might 
 bar the estates, as a fine might let in the in- 
 cumbrances of the ancestors as well as those of 
 the cognizors. In some instances, however, a 
 Pig. Recov.32 fiuc was preferable to a recovery, as the former 
 5 cru. Dig. was ttu estoppel by the statute, where a recovery 
 
 tit. 36, c. 9, , , 
 
 ed. 4. piowd. would not estop. 
 
 515. 
 
 A recovery might be suffered by a tenant in 
 
 fee-simple in order to strengthen the title. So, 
 
 as it was a suit in the progress of which a feme 
 
 piowd. 514. covert was secretly examined, it would bar her of 
 
 Bare v. Snow. . ^ . ■, jt 
 
 her claim to dower.* 
 
 * In an anonymous case in 11 Mod. 121, it is said to have 
 been holden, that if a tenant in tail levies a fine, he is for 
 ever hindered from suffering a recovery to destroy the re- 
 mainder in fee, " because the fine has turned the estate tail 
 into a base fee, and determined all privity of estate existing 
 between him and the remainderman, who could not now be 
 vouched over, unless he voluntarily consented to it." The 
 law on this point is taken to be otherwise (ante, p. 402,) 
 clearly, if the use on the fine were declared to a stranger; but 
 if it were declared in favour of the tenant in tail, then the 
 want of privity between him and the remainderman, as above 
 noticed, seems to present an impediment to his suffering a 
 recovery while he was seised in respect of the base fee. If he 
 died leaving the base fee to descend to his general heir, and 
 the heir under the entail was a different person, then that 
 heir might suffer a recovery ; but the above case, with some 
 shew of principle, throws a doubt at least on the question, 
 , whether a tenant in tail, having levied a fine and taken back 
 abase fee, could himself suffer a recovery afterwards. If the 
 tenant in tail and remainderman in fee joined in a fine, then
 
 OF A RECOVERY. 415 
 
 the base fee became merged in the reversion, and a recovery 
 could not it is apprehended, have been afterwards suffered ; 
 for although the use resulted to the parties to the fine 
 according to their former ownership, yet the tenant in tail took 
 back a base or determinable fee by original limitation, arising 
 out of the amalgamated seisin of the estate tail and remainder ; 
 and it is settled, that the tenant of a determinable fee could 
 not suffer a recovery. Pig. 129. 1 Mod. 111. 
 
 [By the 19th sect, of the 3 <^ 4 i^T. 4, c. 74, it is enacted, 4 §• 5 W. A, 
 that after the 31st day of December, 1833, in every case in '' ' '*' '^ '' 
 which an estate tail in any lands shall have been barred and 
 converted into a base fee, either before, on or after that day, 
 the person, who if such estate tail had not been barred, would 
 have been actual tenant in tail of the same lands, shall have 
 full power to dispose of such lands, as against all persons, 
 including the king's most excellent Majesty, his heirs and 
 successors, whose estates are to take effect after the determi- 
 nation, or in defeasance of the base fee into which the estate 
 tail shall have been converted, so as to enlarge the base fee 
 into a fee-simple absolute : saving always the rights of persons 
 in respect of estates prior to the estate tail which shall have 
 been converted into a base fee, and the rights of all other 
 persons, except those against whom such disposition is by the 
 act authorized to be made. 
 
 In this place it may be observed that the right of alienation 
 which a tenant in tail formerly enjoyed, through the medium 
 of a common recovery, he may now exercise, by a deed of 
 disposition in conformity with the above statutes ; which also 
 confer upon him some additional powers.]
 
 417 
 
 PRINCIPLES 
 
 OF 
 
 CONVEYANCING, 
 
 Sfc. Sfc. 
 
 BOOK III. 
 
 OF CONVEYANCES, WITH RESPECT TO PARTIES. 
 
 CHAP. I. 
 
 OF AN INFANT. 
 
 An infant may take by purchase, as he may do co. Litt.2,h. 
 anything which is manifestly for his advantage ; 
 and, if a feoffment be made, livery may be given 
 to him in person, or even to another whom he 
 shall appoint as his attorney ; though the ap- 
 pointment of an attorney by an infant is not valid i noii. Abr. 
 
 . . IP 1 ^ 730. Enfant, 
 
 m itseli at law.* (D.)p/. 6. See 
 
 3 Burr. 1794, 
 &c. 
 
 * The acts of infants are distinguished into those which 
 are absolutely void, and those which are voidable merely. 
 
 E E
 
 418 OF AN INFANT. 
 
 Co. LM.2,h. But he may waive such conveyance when 
 lie comes of age ; or if he do not then actually 
 agree to it, his heirs may waive it after him.* 
 
 This distinction is very important, 1st, because a voidable 
 contract may be afterwards established by a confirmation 
 either express or implied, but a void contract cannot {ante, 
 chapter Conjirmation); and, 2ndly, because where the contract 
 is actually/ void, neither party is bound by it ; but where it is 
 only voidable, the power of rescinding the contract is vested 
 in the infant alone, — the other party being absolutely bound, 
 if the infant, when of full age, chooses to hold him to his 
 agreement. Clayt07i v. Ashdown, 9 Vin. Abr. 393. Holts. 
 Ward, Clarencieux, 2 Str. 937. The precise criterion, how- 
 ever, of this distinction is not clearly settled. On the one 
 hand, it is said to depend entirely on the circumstance, 
 whether the act is for the advantage or disadvantage of the 
 infant ; and that if it is an act which cannot be to the advan- 
 tage of the infant it is actually void, but if it may be for his 
 benefit it is only voidable. Zouch v. Parsons, 3 Burr. 1794. 
 Holt V. Ward, Clarencieux, 2 Str. 937. Allen v. Allen, 
 2 Dru. ^ W. 307. 1 Con. ^ L. A21, (I.) On the other hand 
 the distinction has been made to depend solely on the mode 
 in which the transaction takes place ; it being said that all 
 such gifts, grants, or deeds of an infant, as do not take effect 
 by the delivery of his hand are void, but that those which do 
 so take effect are only voidable. Perk. s. 12. The case 
 referred to in the text, in 1 Roll. Abr. 730, was decided on 
 the former of these grounds ; the words being, " If a man 
 makes a feoffment to an infant, and the infant makes a letter 
 of attorney to another to receive livery for him, it is good, 
 because it is for his benefit." The latter of these grounds was 
 adopted by the Court in the case of Zouch v. Parsons, 3 Burr. 
 1794. 
 
 * It is not necessary that the infant should expressly agree 
 to the bargain to be bound by it ; an implied agreement is in
 
 OF AN INFANT. 419 
 
 All convevance, however, Ini an infant are Touchstj.u5. 
 
 . "^ 232. 5 Cru. 
 
 voidable bv him or his heirs, except a fine or Dig.m,cA.A. 
 
 recovery, which are only voidable during nis zouchwPar- 
 
 jj. • ,, , sons. 
 
 minority.* All these conveyances are, never- 
 
 all cases sufficient ; and an agreement may be implied from 
 any act amounting to an assent to the transaction. Thus the 
 continuance in possession after he comes of age, of lands 
 demised to him during infancy, is an acceptance of the lease. 
 
 1 Roll. Abr. 731, K. So the receipt of rent after he attains 
 twenty-one, in respect of lands demised by him during infancy, 
 amounts to a confirmation of the grant. Cecil v. Salisbury, 
 
 2 Vem. 224. Smith v. Low, 1 Atk. 489. 
 
 * The distinction is between matters in pais, as deeds, 
 and matters of record, as recognizances, fines, recoveries. 
 Matters m pais he may avoid either within age, or when he is 
 of full age ; but matters of record can only be avoided during 
 minority. If, however, his age be tried during his minority, 
 by the inspection of the judges, and it be recorded that he 
 is within age, in that case even a matter of record may be 
 avoided after the infant attains twenty-one. Co. Litt. 380, b. 
 But though a recovery suffered by an infant in person could 
 be avoided only during his minority, yet if he suffered a 
 recovery by an attorney, it might be avoided at any time. 
 Stokes V. Oliver, 5 Mod. 209. Zouch v. Michil, Godb. 161. 
 This difference arises from the distinction already noticed, 
 between matters in pais and matters of record. Where the 
 recovery was suffered by the infant in person, it was wholly 
 a matter of record, and therefore avoidable only during 
 minority ; but where it was suffered by attorney, the appoint- 
 ment of the attorney being a matter in pais might be avoided 
 at any time ; and that being avoided, the recovery founded 
 upon it must necessarily fall to the ground with it. But ou 
 the other hand, where the matter of record is itself the basis 
 of the transaction, or the principal, and the matter in pais is 
 E E 2
 
 420 OF AN INFANT. 
 
 theless, if they tend to his benefit, good till actu- 
 ally avoided ; but as to fines, the affidavit of 
 acknowledgment by dedimus potestatern, stated, 
 by rule of Court, that " the parties were of full 
 age ;" and, before that rule was ordained, the 
 commissioners were subject to an attachment 
 if they took the acknowledgment of an infant. 
 Zovchy.Par- An act of an infant which cannot be to his 
 
 sons, ubi sup. 
 
 advantage is void ipso facto. 
 
 bCru.Dig. It was formerly the practice to petition the 
 
 King for a privy-seal to enable an infant to suffer 
 a recovery ; but this was disused, and subse- 
 quently recourse was had to an Act of Parlia- 
 ment.* 
 
 the accessory, that is, founded upon the matter of record, 
 there the matter in pais cannot be avoided, without first 
 avoiding the matter of record. Thus, if an infant suffered a 
 recovery or levied a fine, and limited the uses thereupon, he 
 could not avoid the deed declaring the use, without avoiding 
 the fine or recovery also. 2 Rep. 58, 10 Rep. 42. Lastly 
 it may be remarked, that a bargain and sale, though enrolled 
 in a Court of record, is not such a matter of record as can be 
 avoided only during minority, but the party may avoid it when 
 he will. 2 Inst. 673. 
 
 * The course of proceeding under a privy seal was for 
 the crown, upon petition of the infant or his guardian, to 
 grant letters under the privy seal to the judges of the Court 
 of Common Pleas, directing them to permit the infant to levy 
 a fine or suffer a recovery ; and it was then in the discretion 
 of the Court to permit the thing to be done or not, according 
 to the circumstances. Sir T. Plumer, however thought it a 
 singular mode of application to the King for a recommend-
 
 OF AN INFANT. 
 
 421 
 
 An infant trustee or mortgagee might be 
 ordered to convey even by fine, if not by 
 recovery (see 3 Atk. 164), by a Court of equity, i Watk.Copyh. 
 under the statute of the 7th Anne, cap. 19, 
 and that act extends to the conveyance of copy- 
 holds* 
 
 So ail infant may, in some cases, exercise a Poweiion 
 
 ^ ^ Powers, 43— 
 
 power; as where he is a 7ncre instrument ;f but, 54, & i Fes. 
 it should seem, not otherwise. 
 
 ation to the judges to permit the infant to suffer a recovery, 
 when it was in the discretion of the judges to permit the 
 recovery to be suffered or not, as they thought proper ; and 
 he added, that it was questionable whether such a recovery 
 was not reversible for error. 1 Turn. Sf Russ. 175. But in 
 Doe V. Rawding, Bayley, J. said, that the modern practice of 
 applying for an act of Parliament did not supersede the mode 
 of suffering a recovery or levying a fine by privy seal, which 
 was still part of the law of the land. 2 Barn, ^ Aid. 450. 
 [The question, however, is now set at rest by the abolition of 
 fines and recoveries.] 
 
 * The Stat. 7 Ann. c. 19, has been repealed, .and similar 
 provisions made by the consolidated act. 1 fV. 4, c. 60, ante, 
 p. 260, infra Statutes. 
 
 f As in the case of a simple power of attorney at common 
 laio, Co. Litt. 52, a, or of a collateral power over real estates 
 under the Statute of Uses. 1 Sugd. Poto. 213, Ed. 6. As to 
 powers over real estates not simply collateral, if the express 
 dispensation with the disability of infancy be not an ingredient 
 in the power, it is settled that an infant cannot exercise it ; 
 but if there be an express dispensation, then it seems doubtful 
 (there being no decision on the subject) whether the infant 
 can exercise such a power or not. Et vide 1 Sugd. Paw. 215, 
 220. 1 Chance. Potv. 241, &c. Prest. on Abst. 1, 326. Harg.
 
 422 OF AN INFANT. 
 
 1 Dro. c. c. And an infant mtiy be bound by a fair and 
 
 152. miliams . *^ , 4t 
 
 V. jfiffifl/Ms, & reasonable marriage settlement.* 
 
 3 Ves.jun.5'i5. 
 
 WUliarns v. 
 
 Chitty. (§• Butl Co. Liu. 52, a. n. (2). 171, b. n. (5). 271, b. n. (1), 
 
 VII. 2. 
 
 * A male infant cannot make a binding settlement of liis 
 real estate. This seems to have been always treated as a 
 clear point. 4 Bro. C. C. 506, 510, 511. Whether a female 
 infant can make a valid settlement of her real estate, was at 
 one time very doubtful : but it seems now to be settled, that 
 a female cannot be bound as to her real estate by any articles 
 entered into during minority, but may refuse to be bound 
 and abide by the interest which the law casts upon her when 
 she comes of age or is discovert ; and her heir at law, if she 
 dies during coverture, is entitled to the same election. The 
 only way to bind a wife to articles made during minority, is 
 to procure her concurrence [in a deed of disposition in con- 
 formity with the statutes 3 <^ 4 W. A, c. 74, and A ^ 5 lb. 
 c. 92,] after she shall have attained her age of majority ; she 
 cannot testify her election in any other way. [Before those 
 statutes she might have expressed her concurrence by fine or 
 recovery.] If she dies without having joined her husband in 
 a fine or recovery, [or by such deed of disposition] a right of 
 election -vill accrue to the wife's heir, who may either affirm 
 or repudiate the articles at his pleasure. But if he affirm the 
 articles, it is conceived that such affirmation is not to be 
 treated as a voluntary settlement on his part, so as to render 
 the same voidable by his creditors. See on this subject the 
 cases of Clough v. dough, 5 Ves. 717. \_Milner v. Lord 
 Harewood, 18 Ves. 259.] Simpson v. Gutteridge, 1 Madd, 
 Rep. 613. 
 
 As to the personal estate of a female infant, it seems that 
 her interest in that species of property may be bound by 
 agreement on her marriage ; for, as Lord Hardwicke observed, 
 if a parent or guardian cannot contract for the infant so as to 
 bind her personal property, the husband, as it is a personal 
 thing, would l)c entitled to it absolutely inmiediately on the
 
 OF AN INFANT. 423 
 
 A iiuardian may make leases duriim tlie 2 Roii. Ab,-. 
 
 ^ , "^ 41. Ga;rfe(Q). 
 
 minority of his ward.* pi- 4. Bacon 
 
 Leases, B. Sf I. 
 (s. 9), p. 138. 
 
 marriage. Harrey v. Ashley, 3 Atk. 613. [The preceding 
 observation must be confined to such personal estate of the 
 infant as will vest in the husband by the marriage, and not to 
 such as is reversionary ; for a settlement of the latter species 
 of property will not bind the wife's title by survivorship. 
 Stamper v. Barker, 5 Mad. 165. Ai?islie v. Medlycott, 
 9 Ves. 19. It is apprehended that settlements of the personal 
 estate of infants are binding upon them, only to the extent of 
 the husband's power over such personal estate ; and that they 
 are to be considered not as settlements by the infants, (who are 
 incapable of contracting) but strictly as settlements by the 
 //?<55«w(/ operating upon all the interest which he may acquire 
 by the marriage. If such personal estate is vested in the 
 infant in possessio7i, by the marriage it will become the 
 absolute property of the husband, and he will be concluded 
 by the settlement ; if it is reversionary, his interest is qualified, 
 and depends upon the personalty falling into possession during 
 the coverture, or upon his surviving; in either of which 
 events it will vest in him, and be bound by his settlement ; 
 but should he die previously, the settlement will not avail 
 against his wife's title by survivorship; upon which the hus- 
 band's contract is inoperative. See also Simpso?i v. Jones, 
 2 Buss. 4' Myl. 365, 374. But the wife may be bound by 
 subsequent acquiescence. Ashton v. M^Dougall, 5 Beav. 56. 
 *By Stat. 1 W. 4, c. 65, s 16, infants or their guardians 
 in the name of the infants by the direction of the Court of 
 Chancery, are enabled to grant renewals of leases ; and by 
 the 17th sect, infants entitled in fee or in tail or to any 
 absolute interest in leasehold are enabled themselves, or by 
 their guardians, to grant leases or under-leases by the direc- 
 tion of the Court ; provided no lease be made of the capital 
 mansion-house and park for any period exceeding the minority 
 of such infant. 1
 
 424 OF AN INFANT. 
 
 Sand.Uses,sT. An infant may be seised to an use.* 
 
 And an estate may be limited by way of 
 
 remainder, or of use, or given by devise, to an 
 
 See of the infant en ventre sa mere; but an immediate 
 
 Stat. 10 §• 
 
 11 w. 3, P^rant to such infant would not be arood, as it 
 
 N. (3) to Co. ° . to ' 
 
 xitt. 298, a. & would be in futuro.'f In the case of a devise, 
 
 Walk, on Desc. 
 ch. 4 
 
 * By the custom of particular places, as of gavelkind in 
 Kent, an infant may sell his lands by feoffment at the age of 
 fifteen, [and the livery must be made propria manu, and not 
 by attorney.] Bob. Gavel. 193. 2 Black. Com. 84. But 
 such custom being construed strictly, it is apprehended he 
 cannot mortgage them. It is also observable, that an infant 
 of any age may present to a church. Arthington v. Coverly, 
 2 Eq. Ca. Abr. 518. Hearle v. Greenbank, 1 Ves. S. 304. 
 And an infant, [before the late statute 1 Vict. c. 26, might] 
 make a will of his personal estate ; but there is a great 
 difference of opinion about the earliest age at which such a 
 will might have been made. See Harg. Co. Litt. 89, b. n. (6). 
 At the age of eighteen, however, there seems to be not 
 much doubt that a male infant might make a will of per- 
 sonal property. In 1 Ves. 303. 3 Atk. 709, the Chancellor 
 mentions seventeen, but speaks very ambiguously of a will 
 being good if made at an earlier age. [But now by the 7th 
 section of the above statute it is enacted, that no will made by 
 any person under the age of twenty-one years shall be valid ; 
 the 34th section limits the operation of the act to wills, made 
 on or after the 1st day o^ January, 1838.] 
 
 t Posthumous children are now considered as actually 
 born to all purposes, except in the case of a descent at com- 
 mon law ; and in the case of a descent, the heir presumptive 
 gives place to the real heir when born. See on this subject 
 Thellusson v. Woodford, 4 Ves. 334, 335. Doe v. Clarke, 
 % H. Black. 399. An infant en ventre sa mere might be
 
 OF AN INFANT. 
 
 4-25 
 
 the fee will descend to the testator's heir at law 
 
 till the child be born ; in that of the remainder, 
 
 the freehold is in the particular tenant, and the 
 
 remainder vests in the child, though unborn, by 
 
 the statute 10 ^ 11 W. 3, c. 16, and in the case infra statutes. 
 
 of the use, the legal estate is in the trustee.* 
 
 vouched in a recovery ; may be an executor ; may take by 
 devise, or under a charge for portions ; may have an injunc- 
 tion and a guardian, 4 Ves. 322 ; [will be entitled to a 
 legacy bequeathed to children born, 1 Sim. S)- Stu. 181 ; and 
 as to real estate, see 1 Bos. ^- Pull. 243. 5 T. R. 49.] It 
 may be remarked, however, that where an infant is appointed 
 executor, he cannot act as such till the age of twenty-one, 
 till which time administration must be granted to another. 
 38 G. 3, c. 87. 
 
 [* The meaning of the author is not very apparent in the 
 concluding words of the above sentence : the use would im- 
 mediately vest in the child unborn, and with it the actual 
 legal estate ; as if a conveyance were to A. and B. and their 
 heirs to the use of C. for life, with remainder to the use 
 of the child with which she is enceinte, and to his or her 
 heirs ; so if the whole legal fee were vested in A. and B., in 
 trust for the child en ventre sa mere, the equitable estate or 
 interest would equally vest in the child, as if the conveyance 
 were to A. and B. and their heirs to the use of C. for life, 
 remainder to the use of A. and B. and their heirs in trust for 
 the infant en ventre sa mere, and his or her heirs.
 
 426 
 
 CHAP. II. 
 
 OF HUSBAND AND WIFE.* 
 Liu.s.29\,& As the husband and wife are but one person 
 
 Co. upon that . . i i • • i i i 
 
 sect. 5 D>irnf. HI law, it an estate be limited to them, tiiey 
 
 §• East, 652. , , , . . „ 
 
 Doe \. Far. sliall uot take as joint-tenants (tor a joint- 
 
 rutt, 2 Cru, . , . , . i i • p 
 
 z>?>. 374. tenancy necessarily implies a plurality or per- 
 sons), but the entirety is in each ; and neither 
 can alien without the other. f If it be limited 
 to the husband and wife and another person, 
 that other person shall take a moiety in joint- 
 
 [* As to the husbands of female trustees, see stat. 1 fV. 4, 
 c. 60, s. 19.] 
 
 f Those words in a conveyance which would make other 
 persons joint-tenants will, when used in a limitation to a 
 husband and wife, make them tenants by entireties, so that 
 neither can alone sever the jointure, but the whole must 
 accrue to the survivor. Green v. King, 2 Bl. Rep. 1211. An 
 estate, however, may be so limited as to make a man and his 
 wife take in severalty if need be ; and the husband and wife 
 might together, by fine or recovery, dispose of an estate held 
 by entireties during the coverture. Co. Litt. 187, b, 188, a, 
 et ante, 177, where this peculiar tenancy is treated of more 
 fully. [And now that fines and recoveries are abolished, 
 husband and wife may convey by a deed of disposition in 
 conformity with the statutes 3 i*j- 4 IV. 4, c. 74, *■. 77, &c., 
 and 4 (^- .5 lb. c. 92, s. 68, &c.J
 
 OF lll'SBAN[) AND WIFE. 427 
 
 tenancy with the husbund and wife ; and the 
 husband and wife shall have the other moiety 
 by entireties, as they are but one person in 
 law.* 
 
 [In regard to the choses in action'f and chattels 
 real and personal estate of the wife, the following 
 distinctions may be here noticed. The husband 
 is absolutely entitled to his wife's chattels personal 
 in possession, and he may dispose t)f them at 
 pleasure : and if he survives her, he is also en- 
 titled to her choses in action, as her administrator. Bettsv. Kimp. 
 
 ut it she survives they will be hers by survivor- Adoi. 273. 
 ship. With respect to her chattels real in posses- 
 sion, the husband has in them a qualified title 
 only ; he may, during her life, absolutely dispose 
 of them, but they will not pass by his will against 
 her surviving ; but if he survive, they become 
 his, and will pass by his will, though executed 
 
 * Another important consequence of this unity of person 
 is, that at common law a husband cannot make a grant to his 
 wife. Co, Litt. 112, a. He may, however, grant to her, 1st, 
 under the Statute of Uses, by granting the estate to another 
 person for her use, Co. Litt. 112, a ; 2ndly, by creating a trust 
 in her favour, lb. ; 3rdly, under the custom of particular 
 places, as the custom of York, Bro. Custom, 56 ; 4thly, he 
 may surrender copyholds to her use, 4 Rep. 29, b ; and, 
 lastly, he may give an estate to her by his will, Lit. s. 168, 
 and comme?it. 
 
 [f A chose in action may be defined as that species of 
 personal property (not being chattels real) to which the 
 beneficial ricfht is in one person, while the possession is in 
 another, and for the recovery of which tlic beneficial owner 
 may be driven to action or suit.]
 
 428 OF HUSBAND AND WIFE. 
 
 C0.Litt.3rA. before his wife's death. The chattels real of the 
 wife in possession, whether legal or equitable, 
 devolve upon the surviving husband by marital 
 right; and he is not obliged to take out adminis- 
 tration, in respect of them, as he must to possess 
 himself of her choses in action. But if the wife is 
 entitled only to a reversionary interest in chattels 
 real, as where a term is vested in trustees in trust 
 for A. for life, and after his decease, in trust for 
 £., a married woman, and she dies in the lifetime 
 of A., the better opinion seems to be that her 
 interest never having vested in possession, though 
 vested in interest, must be considered in the 
 nature of a chose in action, and that the husband, 
 to complete his title, must take out administration 
 to her.* 
 
 * 1 Roll. Ahr. 345, pi. 40. Co. Litt. 351, a., 46, b. 
 2 Eq. Cas. Ab. 138, pi. 4. Allyn. R. 15. 2 B. ^ Adol. 273. 
 1 Prest. Abst. 343. Toll. Ex. Ed. 1806, 216-7. Wan v. 
 Lake, Gilb. Eq. Rep. 234. For instances where it has been 
 doubtful whether the husband or wife survived, see 2 Phill. 
 261-279. 1 Curteis, 595-6-705. See also Wiltshire v. 
 Rabbits, 8 Jurist, 769, where an important distinction is laid 
 down between chattel interests and choses in action. 
 
 The student will find the law of real property, arising from 
 the relation between husband and wife, discussed at large 
 in the late Mr. Roper's valuable Treatise on that subject.]
 
 429 
 
 CHAP. III. 
 
 OF A FEME COVERT. 
 
 A feme covert may accept an estate ; and it 
 shall be good till avoidance.* But her convey- 2 bl c<mm. 
 
 . , , xT^ 292. Touchst. 
 
 ance [was, previously to the statute 3^4 kk. 4, 232. 
 c. 74,] absolutely void and not merely voidable, 
 except it were by matter of record. She could 
 only be bound by fine, recovery, or Act of Par- Ante,40i—3, 
 
 f . text. 
 
 liament. 
 
 [But now by the above statute, fines and re- 
 coveries are abolished, and more simple modes of 
 assurance substituted. The 77th section enables 
 any married woman (not being tenant in tail for 
 whom provision is before made by the act), with 
 the consent of her husband to dispose of lands 
 or money subject to be invested in the purchase 
 of lands of any tenure (but with an exception of 
 
 * Her husband, however, may disagree thereto, and divest 
 the whole estate ; but even if the husband agrees to the con- 
 veyance, the wife may waive it after his death ; and so may 
 her heirs, if she dies during coverture, or even if she dies 
 after her husband's decease, provided she has not, when free 
 from coverture, done any act expressive of her assent thereto. 
 Her consent during coverture is nugatory. Co. Lift. 3, a.
 
 430 
 
 OF A FEME COVERT. 
 
 copyhold in certain cases), and to release any es- 
 tate which she alone, or which she and her hus- 
 band in her right, may have therein ; and also to 
 release or extinguish any power reserved to her, 
 as fully as she could do if she were a feme sole : 
 but the powers of disposition conferred by the 
 act are not to prevent the exercise of any other 
 powers vested in her, independently of the acts, 
 except so far as any such powers may, by dispo- 
 sition under the acts, be suspended or extin- 
 guished (s. 78). 
 
 Every deed of disposition by a married woman 
 by virtue of the act, except she merely consent 
 as protector, must be acknowledged (5. 79), by 
 her as her act, before a Judge of one of the supe- 
 rior Courts at Westminster, or a Master in 
 Chancery, or before two of the perpetual com- 
 missioners, (ss. 81, 82), or two special commis- 
 sioners (5. 83), appointed according to the pro- 
 visions of the act : and she must be separately 
 examined (s. 80), and a memorandum of such 
 acknowledgment by the person taking it, must 
 be made upon the deed, either indorsed, or at 
 the foot, or in. the margin (s. 84). The sections 
 84 to 89, inclusive relate to the form, filing, 
 effect, indexing, and copies of, certificates of ac- 
 knowledgment,* and the power of the Court of 
 C. B. in reference thereto. 
 
 * [2 Bing. N. S. 268, 435, and see Statutes, infra.]
 
 OF A fi:me covert. 431 
 
 By section 90, provision is made for tlie sepa- 
 rate examination of a married woman in the 
 surrender of an equitable interest in copyhold, 
 in the same manner as if the surrender were of a 
 legal estate. B}^ the following section (91), the 
 Court of C. B. is authorized in certain cases to 
 dispense with the concurrence of the husband,* 
 but not to extend to those cases where the Lord 
 Chancellor, Lord Commissioners, &c., and the 
 Court of Cliancery are the protector in lieu of 
 the husband. 
 
 The 4^5 W. 4, c. 92, for abolishing fines 
 and recoveries in Ireland, with a few alterations, 
 is an echo of the above statute. The Irish act, 
 of course, omits those clauses in the Ensflish ■s'ec*. 4, 5, 6, & 
 
 ° 50. 54. 66. 76. 
 
 act which are not applicable to Ireland relating ^o- 
 to the tenure of ancient demesne and to copy- 
 holds. In section 68 of the Irish act correspond- 
 ing with section 77 of the English act, the word 
 ' disclaim' is introduced to obviate a question 
 whether, under the latter section, a married 
 woman trustee may disclaim. f 
 
 She may be seised to an use. Sand. Uses,{ 
 
 The husband and wife, however, may together 2 bi. comm. 
 make leases of the wife's lands for three lives Zeases, (<3). ' 
 
 * [^Ex parte, Mary Gill, 1 Bi?ig. N. S. 168. 7 Cru. Dig. 
 Appendix. Shirley, ex parte, 7 Dowl. 258.] 
 \ [7 Cru. Dig. Appendix, 12 — 13.]
 
 432 OF A FEME COVERT. 
 
 or a certain number of years, by the statute 
 32 Hen. 8, c. 28.* 
 
 Powell on A power may be sjciven to a married woman : 
 
 Powers, 31. 42. *■ JO 7 i . i 
 
 Harff.n.(6) autl if a power be given to a f^me sole which 
 
 to Co. Liu. ...,,,,,, , , , 
 
 112, a. it IS intended she should execute though she 
 
 afterwards marry, it should be expressly said 
 " whether sole or covert."t 
 
 So a married woman may be enabled to dis- 
 pose of her property, by limiting such property 
 1 Fes. 303. to licr Separate use ; in which case she shall be 
 
 518. 3 Bro. . , , . . ^^ , . 
 
 a c. 8. See Considered in equity as ci feme so/e.j 
 
 also Hulme v. 
 
 Tenant, 1 Bro. C. C. 16. Pybus v. S7nith, 3 Ibid. 340. Burnahy v. Griffin, 3 Ves. 266. 
 See also Mores v. Huish, 5 Ves.jun. 692, which though determined by the same Chancellor 
 as decided Burnahy v. Griffin, may not perhaps be very easily reconciled with the latter 
 case. See the Introduction. 
 
 * If the requisites of that statute are not complied with, 
 the lease is only voidable, not actually void ; and if she 
 receive rent after her husband's death, the lease will be 
 thereby confirmed. Doe v. Welter, 7 T. R. 478. 
 
 I It is clearly settled, that a married woman may exercise 
 a power simply collateral, though no special words are used 
 to dispense with the disability of coverture ; and that, if there 
 be an express dispensation with the coverture, she may 
 exercise powers coupled with an interest ; but with regard to 
 powers coupled with an interest, where the coverture is not 
 expressly dispensed with, there is no decision on the point ; 
 the prevailing opinion, however, is, that she can exercise 
 such powers also; et vide 1 Sugd. Pow. 185, 194, Ed. 6. 
 1 Prest. Ahstr. 340. Harg. Co. Litt. 112, a. n. 6. 
 
 \ The case of Mores v. Huish, cited by Mr. Watkins in 
 the margin, if not expressly overruled, has been so repeatedly 
 contradicted by subsequent cases, that it can no longer be 
 quoted as an authority. It is now established beyond all
 
 OF A FEME COVERT. 433 
 
 So the husband on marriage may give the wife 
 power to make a will, and it shall be good. 
 
 [The restraint upon the power of alienation 
 which is allowed in the instance of a life or other 
 less interest in real or personal property, settled 
 by deed or will upon trust for a married woman, 
 is an exception to the rule of law, that property 
 cannot be conferred without its incidents, among 
 which is the power of alienation. This exception, 
 however anomalous, is well established ; and upon 
 the ground that the power of alienation given to 
 a feme covert is a mere creature of equitv, to the Parkes^. 
 extent to which the instrument constitutes her a 221. sockettv. 
 feme sole, so, therefore, the Court may modify c. c. 483. 
 
 . p ■,, . Jackson V. 
 
 that power 01 alienation.* Hohhouse, 
 
 2 Mer. 483. 
 487. 
 
 doubt, that a married woman is to be considered as a feme 
 sole as to property given to her separate use, except in so 
 far as her power over that property is restrained by the 
 [instrument creating the power. Wagstaff v. Smith, 9 Ves. 
 520. Parkes v. White, 11 Ves. 209. Witts v. Dawkins, 
 12 Ves. 501. Essex v. Atkins, 14 Ves. 542. Et vide, ante, 
 p. 403.] 
 
 * Attempts have frequently been made, but without 
 success, to extend this restraint upon alienation to other 
 persons. Brandon v. Robinson, 18 Ves. 433. Ross v. Ross, 
 1 Jac. ^' Wal. 154. Graves w. Dolphin, 1 Sim. 66. Phipps 
 V. Lord Ennismore, 4 Ricss. 131. Green v. Spicer, 1 Russ. 
 Sf Myl, 395. Newton v. Reid, 4 Sim. 141. Snowdon v. 
 Dales, 6 Ih. 524. [Jones v. Wise, 2 Keen, 285.] And a 
 distinction has long been recognised between a condition 
 restraining alienation, and a limitation confining the extent 
 
 F F
 
 434 OF A FEME COVERT. 
 
 1 Beat,. 1. [Until the recent case of Tullett v. Armstrong, 
 
 decided by Lord Langdale, M. R., and subse- 
 
 of the interest itself, and upon alienation or attempt at 
 alienation, giving over the interest to another ; so that a 
 gift to A. until he alienate was good, but in a gift to A. for 
 life, with a condition restraining his power to alienate his 
 life interest, the condition was void. 18 Ves. 433. It is 
 immaterial whether the alienation be by act of law or by act 
 of the party. Cooper v. Wyatt, 5 Mad. 482. Cooper, 259. 
 
 2 mis. C. C. 47. 6 T. R. 684. 2 East, 481. 13 Ves. 405. 
 [More recent decisions suggest a modification of the above 
 rule, that in a gift to A. for life, with, a condition restraining 
 the alienation of his life interest, the condition is void ; for it 
 seems to be now settled by a train of authorities, that where 
 property is given to A. for life, with a proviso or condition to 
 determine his life interest in the event of his alienating or 
 becoming bankrupt, and there is a clear gift over during A.'s 
 life to other persons, in that case the proviso is valid against 
 the assignee or creditor of A. Lewes v. Lewes, 6 Sim. 304. 
 Brandon v. Ashton, 2 Vo. Sf Col. C. C. 24. 7 Jurist, 10. 
 But where the limitation over is substantially a provision for 
 A., whether through the instrumentality of a discretionary 
 power in trustees or otherwise, it will be invalid, and the 
 assignee or creditor of A. will be entitled during his life. 
 Piercy \. Roberts, 1 Myl. ^ K. 4. Snowdoyi v. Dales, 
 6 Sim. 524. The same rule holds as to A.''s share, where the 
 gift over is substantially for the benefit of him jointly with 
 other persons ; for there his share will belong to his assignee 
 or creditor. Rippon v. Norton, 2 Beav. 63. Page v. Way, 
 
 3 lb. 20. Kearsley v. Woodcock, 3 Hare, 185 : and it would 
 seem, in the latter case, immaterial whether the form of the 
 gift be to A. until alienation, &c. or to him for life with a 
 determining proviso. But in Godden v. Crowhurst, 10 Sim. 
 642, a case resembling Rippoji v. Norton, Sir L. Shadwell, 
 V. C, considered that the trust for the benefit of the bank-
 
 OF A FEME rOVERT. 435 
 
 quently confirmed, after much consideration, by 
 
 Z^ord Cotfenham, C, great difference of opinion 4 Myi. §• c. 
 
 prevailed, respecting the validity and effect of the 
 
 trust for separate use, and the clause in restraint 
 
 of alienation, by which that trust was frequently 
 
 accompanied. The general opinion was that, 
 
 although the trust for separate use was valid, in its [Sarton v. 
 
 . Briscoe, Jacob, 
 
 inception, even when the f^me cestui que trust was 603. Jones v. 
 
 ', . , Salter, 2 Runs. 
 
 not under coverture at the time the instrument §• Ary. 208 
 
 , . . , Newton v. 
 
 creating the trust came into operation, yet that Reid,ASim. 
 
 ^, 1 . . ,. . . , 141. Wcod- 
 
 tne clause restraining alienation was in that case mestonw 
 
 . -r , 1 ,.11.1 1 Walker, 2 Russ. 
 
 nugatory. It was, however, settled that the trust §• m^/. 204. 
 
 for separate use, as well before the coverture of Po^Xib.ivi. 
 
 the cestui que trust, as after it had ceased, was Mnkoims-.' 
 
 ineffective ; leaving her at liberty to alienate, cked"4"w' ' 
 
 §• Cr. 399.] 
 
 nipt, his wife, and children, was to be applied by the trustees 
 for the benefit of all parties collectively and not distributively, 
 so that the assignee was not entitled to the bankrupt's share, 
 and see per Wigram, V. C, in Kearsley v. Woodcock, and 
 Wefherell v. Wilson, 1 Keene, 80. The case of Rippon v. 
 Norton is clearly distinguishable from Twopenny v. Peyton, 
 10 Sim. 487 ; there, by codicil revoking the life interest to 
 y1. given by a prior will, and, reciting that A. had become 
 bankrupt, the testator directed the trustees to apply such 
 part of the income, as they should deem expedient, for the 
 maintenance and support of the bankrupt, and for no other 
 purpose ; and the same judge decided that the trust was good 
 against the assignees of A. In the cases of Shee v. Hale, 
 1 3 Ves. 404 ; Cooper v. Wyatt, 5 Mad. 482 ; Lear v. Legett, 
 2 Sim. 479, and Pym v. Lockyer, 12 Sim. 394, the question 
 was, whether in the events which happened there was a for- 
 feiture of the life estate ? 
 
 F F 2
 
 436 
 
 OF A FEME COVERT. 
 
 without reference to the trust, aud that, the 
 restraint upon alienation also ceased, when the 
 cestui qiie trust became discoverte. 
 
 2 M,/l. §• K. 
 174. 
 
 Johnson V. 
 Johnson, 1 
 Keene, 648. 
 
 Maber v. 
 Hobbs, 2 Yo. 
 §• Co;. 317. 
 
 In Massey v. Parker, Lord Cottenham^ then 
 Master of the Rolls, expressed an opinion, which 
 is now overruled, that the marriage of a feme 
 covert who was entitled to a fund for her separate 
 use, was by itself, a gift of that fund to the hus- 
 band. But if, at the time of the marriage, she 
 was an infant, her infancy precluded the inference 
 of intention to give the fund. Where the husband 
 on his marriage confirmed the trust for the sepa- 
 rate use of his wife, of course, it would have con- 
 tinuance, during the coverture. 
 
 The case of Tullett v. Armstrong, as confirmed 
 by Lord Cottenham, C, seems now to have settled 
 this much agitated subject ; and it established a 
 doctrine differing from that, which, as above 
 stated, seems, according to the more general 
 opinion, to have been received as law. That case 
 in conformity with the decision oi Lord Lany dale, 
 has placed the trust for separate use, and the clause 
 restraining alienation, upon the same footing; 
 and has given to each the same validity, the 
 principle upon which they are to be supported 
 being identical, both resting upon the power of 
 the Court of Chancery to model, and qualify the 
 interest in property, which it had itself created. 
 It may now, therefore, be considered established
 
 OF A FEME COVERT. 437 
 
 that the trust for separate use, and the clause See also Scar- 
 borough V. Bor- 
 restrainins: alienation, are equally valid in their man,AMyi.^ 
 
 ° . , Cr. 378. 
 
 inception, whether the feme cestui que trust be 
 sole OT covert when the instrument, by which they 
 are created, comes into operation ; that practically, 
 those protective provisions have operation only 
 during the coverture of the cestui que trust; that 
 neither clause has any efficacy, while the donee 
 is single, but that they will revive upon a subse- 
 quent marriage, if nothing is done, beyond the 
 mere act of marriage, to alter the original trust.* 
 
 Independently of the question finally settled 
 by Tullet v. Armstrong, respecting the clauses 
 for separate use and in restraint of anticipation, 
 recent decisions have created no little perplexity 
 in their construction, more particularly as regards 
 the form, position, and extent of the words em- 
 ployed to restrain anticipation. The cases of 8 sim. i. 
 Barrymore v. Ellis, Brown v. Bamford, and 8^«r^«^853. 
 Medley v. Horton, have, it is submitted, by a 
 verbal criticism of the separate parts of those 
 clauses when combined, defeated the obvious 
 intention of the settlors, and this, in opposition 
 to the general opinion and practice of the Pro- 
 fession.! 
 
 * See also Davies v. Thornycroft, 6 Sim. 420. Anderson 
 V. Anderson, 2 Myl. ^ K. 427. 
 
 [t It has been, for at least half a century, the general opinion 
 of conveyancers, their practice being in conformity with that 
 opinion, that it was immaterial, in what part of the various
 
 438 OF A FEME COVERT. 
 
 In Barrymore v. J^llis, the trust was to pay an 
 annuity, during the joint lives of the husband 
 and wife, to such persons, kc. as the wife by 
 writing under her own hand should appoint, but 
 not so as to anticipate ; and, in default of such 
 appointment, to pay the same to her for her 
 separate use. Sir L. Shadwell, V. C, held the 
 restraint attached only to the power, and that 
 the wife had an unfettered control over her life 
 interest ; that although she could not alienate by 
 an exercise of her power, she could by an assign- 
 ment of her life interest ; so that, virtually, the 
 restraint was nugatory. In Brown v. Bamford, 
 the dispositions were by will, substantially the 
 same as in the preceding case, and the same 
 Judge made a similar decision. In the still 
 later case of Medley v. Horton, the trust was, in 
 a will, to pay the produce of a fund, during the 
 life of a married woman, to such persons as she 
 should under her hand authorize to receive the 
 same; and in default of such appointment, into 
 her proper hands for her separate use, ihe receipt 
 
 forms of trusts for separate use, the words in restraint of 
 alienation were inserted ; it being understood that the insertion 
 of those words in any part of the trust, was sufficient to indi- 
 cate the intention of the settlor, against any alienation of the 
 life interest o{\h.efeme covert ; and that that obvious intention 
 governed the whole clause, as well the power, as the interest : 
 it was also understood to be the object of the power, merely 
 for convenience, to authorize the fetne covert to appoint an 
 attorney to receive the accruing income.]
 
 OF A FEME COVEKT. 439 
 
 of herself, or of such person as she might au- 
 thorize to receive the same, to be alone a good 
 discharge ; the trustees being always at liberty 
 to require from her, a separate authority or receipt 
 for each quarterly payment ; it being tlie inten- 
 tion that the annual interest should not be sold, 
 charged, or otherwise disposed of. Sir L. Shad- 
 well, V, C, decided that the restraint was alto- 
 gether nugatory : his Honor being of opinion that 
 the principal case was quite distinct from Barry- 
 more V. Ellis and Brown v. Bamford, but was 
 consistent with Acton v. White ; and that the i sim. ^ si. 
 disposition amounted to a general power of ap- 
 pointment first given, with a general restraint 
 upon alienation ; which was void according to 
 the known rule, that where there is a gift of the 
 fee, and a subsequent declaration, that the donee 
 shall not alienate, the declaration goes for no- 
 thing.* Between the decisions of Brown v. Bam- 
 ford and Medley v. Horton, the case of Moore v. ^Jurist, 139. 
 Moore (in substance resembling the former of 
 those cases) has been decided by Sir Knight 
 Bruce, V. C, in which his Honor held, in ac- 
 cordance with the general opinion of the Profes- 
 sion, that the restraint attached as well to an 
 exercise of the power, as to an assignment of the 
 interest : his Honor observed that there was some 
 difference between the words in that case, and 
 those of BajTymo7'e v. JSllis and Brown v. Bam- 
 ford. It is submitted that the difference is 
 
 * See Baygett v. Meux, 8 Jurist, 391. 1 Coll. 138.
 
 440 OF A FEME COVERT. 
 
 merely verbal, and that the cases in substance so 
 nearly resemble each other, that it is scarcely 
 possible to come to any other conclusion, than 
 that a conflict of judicial opinion exists upon the 
 point under discussion. The material difference 
 between the cases appears to be one of form, in 
 Medley v. Horton^ the restraining words fol- 
 lowed both the power and the trust for separate 
 use, while in Brown v. Bamford and Moore v. 
 Moore, they followed the power. The case of 
 Brown v. Bamford has been heard on appeal, 
 before the Lord Chancellor, hesi his Lordship has 
 12 5m, 616. Bot yct delivered his judgment. ^^e^t^^W/ /^ - 
 
 The law also imposes an anomalous restraint, 
 during coverture, upon the alienation of rever- 
 sionary interests of married women in personal 
 property. This, however, was not free from 
 1 Rum. 1. doubt until the case of Purdew v. Jackson, fol- 
 3 ih. 65. lowed by Honner v. Morton and many subse- 
 quent cases ; and it was carried to its full extent 
 \Myi.^Cr. in the recent case of Stiffe v. Everitt, where 
 Lord Cotteniiam, C. virtually decided that hus- 
 band and wife could not effectually dispose of 
 the wife's life interest in a fund not settled to 
 her separate use, beyond the duration of the 
 coverture.* 
 
 * [In that case a fund was bequeathed to trustees in trust 
 for the separate use of the testator's daughter for life, with a 
 clause against the anticipation of her life interest, but with a 
 power of appointing by deed or will the capital iifter her 
 
 37
 
 OF A FEME COVERT. 441 
 
 A doubt has been suggested whether the recent 
 statute 7^8 Vict. c. 76, ss. 2 and 5, aided by 
 the interpretation clause, sect. 1, removes the 
 restraint above-mentioned, by enabling married 
 women to assign their reversionary interest in 
 a personal fund, whether vested or contingent. 
 The better opinion seems to be, that the Legisla- 
 ture only intended, by sections 2 and 5, to facili- 
 tate the transfer of certain estates and interests, 
 which, before the act, were not alienable at law, 
 but not to remove any disabilities affecting the 
 owners of those estates and interests. It is con- 
 ceived that the 5th section applies to married 
 women, in reference to those estates and interests 
 
 decease. The daughter was unmarried at the death of the 
 testator : she subsequently married, and with her husband 
 petitioned to have the fund transferred to him ; and, if 
 required, she agreed to make an absolute appointment. 
 Lord Cottenharn, C. refused to make the order, observing, 
 that, consistently with Purdew v. Jackson and Honner v. 
 Morton, he did not see how the husband could make a title 
 to the dividends of the fund which might accrue after his 
 death, during the life of the wife surviving. His Lordship's 
 decision appears to be perfectly correct in principle, and 
 in conformity with the authority cited in Com. Dig. Baron 8f 
 Feme (K.) and referred to in the note to the principal case, 
 "p. 41, but, it is submitted, that that principle was not appli- 
 cable to the case before him, because the life interest of the 
 wife was in trust for her separate use ; which, according . 
 to the authority of Davies v. Thornycroft, 6 Sim. 420, 
 was valid, although the restraint upon alienation was not ; 
 and consequently the petitioner had the power of assigning 
 her life interest as a feme sole.]
 
 442 OF A FEME COVERT. 
 
 only, which, at the passiug of the act, they had 
 
 power to alienate ; such, for instance, as they 
 
 3 s^ 4 w. 4, could convey under the Fine and Recovery Act; 
 
 c. 74 ss, 77« 
 
 &c. ' but that it does not apply to those in respect of 
 
 which they were then under disability ; and of 
 this description were their reversionary interests 
 in a personal fund. 
 
 The language of 13th clause, limiting the 
 operation of the act, is far from perspicuous, but 
 it would seem to exclude from the operation of 
 the 5th section, at least, (a) estates and interests 
 created before the \st oi January , 1845.(6)] 
 
 If, however, the reversionary interest in the 
 
 trust funil be settled upon i\\e fhne sole for her 
 
 Major v.Lans. separate use, in the absence of the clause aoainst 
 
 ley. 2 Russ. §•..., 
 
 Myi. ;jo5. alienation, she is of course competent to assign 
 
 her life interest during the coverture. 
 
 * 
 
 .>f 
 
 (a) [To coDstrue the 13th section to the full extent which 
 its literal import might admit, would, in a great measure, 
 defeat the act. 
 
 (b) The student is reminded that the observations made 
 in the Chapters on Remainder, Right and Possibility, supra, 
 
 /'' respecting the conveyance of contingent interests, must be 
 
 read with such reservation as the doubtful meaning of the 
 13th section of the above act requires. 
 Vhi stiprii. * In Stiffe V. Everitt, Lord Cottenham, C. observed, when 
 
 the case came before him as Master of the Rolls, that the cases 
 left it unsettled, where an annuity or life interest in a fund 
 was given to a married woman, and not settled to her separate 
 use, whether the husband with the wife's concurrence was
 
 OF A FEME COVERT. 443 
 
 The husband, however, has power to assign Donne v. Hart, 
 any reversionary interest or his wife in her chat- aoo. ih.mr^. 
 tels real whether contingent or vested ; unless 
 settled to her separate use. 
 
 Where trust funds are settled upon trust for the Barton v. 
 
 p . , . , , Briscoe, ubi 
 
 separate use oi a married woman, without words supra. 15 Ves. 
 
 . . ,. . 1 f I 1 537, per M. iJ. 
 
 restraining alienation, and alter her decease, wusonw. 
 upon such trusts as she shall by deed or will, or ^. ««.'493. 
 by will only appoint, and in default of appoint- £,"Mad.'-m. ' 
 ment to her executors and administrators, she DmiieJ,\ Tur. 
 may call upon the trustees to transfer the funds, ^' "'' ' 
 and so abdicate her power.* If the trust were 
 to her appointment by deed, and in default of 
 appointment to her next of kin, there by an 
 appointment by deed of the fund to herself or by 
 an assignment of her life interest, with an ap- i,ynn\.A.^h- 
 
 ton, 1 Russ. Sf 
 Myl. 188. 
 
 capable of effectually disposing of her entire life interest, 
 seeing she might outlive her husband ; and then such part 
 of her life interest, as would be enjoyed by her after his death, 
 would be reversionary. It is remarkable that the case before 
 his Lordship was, as before observed, one of separate use; 
 though concurring with the arguments of the petitioner's 
 counsel, he appears to have decided under the impression 
 that the trust in the will for the separate use of the wife was 
 void, as well as the clause in restraint of alienation : the 
 argument adopted by the plaintiff's counsel removed the only 
 ground upon which the application of their clients could be 
 supported. 
 
 * See Webb v. Lord Shaftesbury, 3 Myl. ^ K. 599, where 
 a similar decision was made in reference to real and personal 
 property settled upon similar trusts.]
 
 444 OF A FEME COVERT. 
 
 pointment of the fund to a third person the 
 
 trustees may be called upon to transfer the fund. 
 
 But if the trust were to her appointment by will 
 
 Anderson V. ouly, aud the ultimate trust to her next of kin, 
 
 Dawson, 15- . ,.,... 
 
 Fes. 632. 537. there she canuot make an immediate disposition 
 2 Rop. H.^ w. „ . „ . ^„ . , . , 
 
 215. ]o East, ot the lund. Ji she makes no appointment the 
 
 Davis, 4 Myi. uext of kiu of the donee, living at her death, will 
 
 be entitled.]
 
 445 
 
 CHAP. IV. 
 
 OF THE KING. 
 
 Generally, the King cannot either grant or 2 bi. cnmm. 
 take but by matter of record ; as by deed enrolled, com. Dig. 
 He might take hy fine, though he could not be a s^crL^nil 
 cognizor; nor could he be a party to a recovery, p/J.'tV/'^o^' 
 for the King cannot be sued. ^^^^ "^^ 
 
 statutes affect- 
 ing Crown 
 
 Nor can the King be seised to an use. S/^iV"'"^' 
 
 4 ed.' 
 
 But the King may assign certain things, as a c-om. Dig. 
 
 ° * ° » ' Grant (G.)& 
 
 chose en action, Sfc, [so as to enable the assignee to Assignment 
 
 sue in his own name, which the subject cannot do.] [i Di/. 1. 6. 
 
 Cr0.jac.n9. 
 
 The King v. 
 A II 1 • Ml I Irvine.] 
 
 A recovery by the subject will not bar an estate co. Litt.37 2,h. 
 
 tail of the gift of the Crown as a reward for ser- ^^.^H.^ckoi- 
 
 vices ; nor if the estate tail be of the gift of the ^^'^^,^85. 
 
 subject, [would it previously to the late statute ^ ^^^ ^^^ 
 
 3 ^ 4 TF. 4, c. 47, 55. 15, 19 (a),] bar or destroy ^^- ■*• 
 any remainder or reversion in the Crown.* 
 
 (a) Duke of Grafton v. L. ^ B. Railway Co., 5 Bing. 
 N. a 27. 
 
 * But it would bar the estate tail and remainders prior to 
 the King's reversion, if those estates were not of the gift or 
 procurement of the Crown : et vide, ante, p. 221, a$ to a case
 
 446 OF THE KING. 
 
 where a reversion vested in the Crown by forfeiture. As to 
 grants by the King, vide infra, statutes 39 Sf 40 G. 3, c. 88. 
 [By the 15th & 19th sections of the statute 3 ^ 4 TV. 4, 
 c. 74, the powers of disposition conferred upon tenants in 
 tail extend to the barring of all persons (including the King's 
 most excellent Majesty his heirs and successors) whose 
 estates are to take effect after the determination or in 
 defeasance of an estate tail in respect of which the disposition 
 shall be made in conformity with the act ; not being given as 
 reward for services ; for the eighteenth section provides that 
 the power of disposition given by the act, shall not extend to 
 tenants in tail who, by the statute 34 Sf 35 H. 8, c. 20, an 
 act to embar feigned recovery of lands wherein the King is 
 in the reversion, or by any other act, are restrained from 
 barring their estates tail.]
 
 44- 
 
 CHAP. V. 
 
 OF THE QUEEN. 
 
 The Queen may alien and purchase without i bi. c»mm. 
 the concurrence of the King;, She might have 233. 5 Cm. 
 levied a fine, as any other subject ; but it is said, 1 Sand. uses, 
 
 II I • 1 A 214, ed. 4. 
 
 that she cannot be seised to an use.* 
 
 * By the common law a Queen consort is considered as a 
 feme sole ; and by the stat. 39 Sf 40 G. 3, c. 88, she is still 
 further enabled, by writing under her hand and seal, to 
 convey any real estate purchased by or in trust for her ; but 
 she is prohibited from disposing of any palace, belonging to 
 the King in right of the Crown, vested in her for life. As the 
 Queen cannot stand seised to an use, she cannot convey by 
 lease and release as such, or by a bargain and sale, or a 
 covenant to stand seised ; but each of those instruments 
 being under her hand and seal, would operate as a con- 
 veyance by virtue of the above-mentioned statute. As a 
 feme sole, a Queen consort may make a will.
 
 44S 
 
 CHAP. VI. 
 
 OF CORPORATIONS. 
 
 Of their capacity to take. See 1 Bl. Comm. 
 Chap. J 8. 478-9.* 
 
 Davys Rep. Grants by Corporations must be by deed under 
 
 ' ' their common seal ; and such deed, so sealed, is 
 
 good without delivery. 
 
 1 saik. 192. But they may bind themselves by a matter of 
 
 record without their seal. 
 
 Cokt'sRead.on Corporatious aggregate could not levy ajine, as 
 
 &T*'5 Cru. they can only appear by attorney, and a fine 
 
 '^' '^ • • must have been levied in person ; though it is 
 
 said that a corporation sole might be a cognizor, 
 
 for he might appear personally : but corporations 
 
 of either kind might be cognizees.'f 
 
 * Corporations may hold freehold lands transmitted to 
 them by descent or succession, but they cannot purchase 
 lands without the King's license, nor can they take by devise. 
 Vide infra, stat. Mortmain. 
 
 I Corporations are either aggregate or sole, lay or eccle- 
 siastical. Aggregate corporations, in a conveyance to them 
 by license, take the fee without words of limitation ; and
 
 OF CORPORATIONS. 
 
 449 
 
 But a corporation cannot be seised to an See i sand. 
 
 ^ 11- t7«es, 59, ed. 4, 
 
 use; and therefore, it cannot make a bargain andante, b.i, 
 
 c. 20. 
 
 and sale. 
 
 And, consequently, if [previously to the stat. 
 7^8 Vict. c. 76,] a lease and release were made 
 by a corporation, the instrument on which the 
 release was grounded must not have had the 
 words *' bargain and sell" but those of " grant 
 and demise ;" as it must operate as a lease, strictly, 
 and not as a bargain and sale ; and on such lease 
 the lessee must have actually entered into the lands ; 
 for, before entry, he could have no possession on 
 which the release can operate.* 
 
 although they could not levy fines, yet might they be barred 
 by the non-claim on a fine : they may also take a chattel in 
 succession. A sole corporation cannot take the fee without 
 the word " successors ;" and the inclination of opinion seems 
 to be, that a sole corporation might levy a fine, particularly 
 a sole lay corporation, which may be bound by matter of 
 record. A sole corporation cannot take a chattel or term in 
 succession, except the King and the chamberlain of the City 
 of London. Ecclesiastical corporations cannot alien their 
 lands, nor would the non-claim on a fine run against them. 
 Lai/ corporations may both alien their lands, and might bar 
 or bind themselves by fine ; consequently they would be 
 bound by the non-claim on a fine. The subject of this note 
 is more fully discussed in 4 Cm. Dig. 4 ed. p. 13. 5 lb. 
 131, 171-2, 223. 
 
 * An exchange by an aggregate corporation is usually 
 perfected by feoffment, livery being made by attorney. It 
 may be effected by a lease with actual entry and release; but 
 without the entry the release would in all probability be held 
 
 G G
 
 450" OF CORPORATIONS. 
 
 [But a lease for a year in the conveyance 
 by lease and release being now dispensed with, 
 whatever doubts may have existed whether corpo- 
 rations could convey by release, under the stat. 
 5 Sf 6 Vict. c. 21, it is now clear, that they may 
 convey by a single deed, operating as a lease and 
 release under the 7^8 Vict. c. 76, ss. 1, 2. 
 Although previously to the latter statute, a feoff- 
 ment, was generally adopted as the most con- 
 venient form of conveyance by corporations, 
 they, nevertheless, frequently conveyed by lease 
 and release, the lease for a year being by com- 
 mon law demise ; and no doubt was ever enter- 
 tained of their power to convey in that form ; so 
 that they clearly come within the second section 
 of the 7^8 Vict. c. 76, and by the first section 
 the word ^^ person" is made to extend to a co7'- 
 poration as well as to an individual.] 
 
 2 Bi. comm. Ecclcsiastical corporations are restrained from 
 
 320. 1 Bac. ^ ^ ^ ^ 
 
 Leases, aliening, except for certain terms, by statute.* 
 
 E. F, G. H. 
 
 good as a grant, that being the only instrument that is 
 necessary to effectuate an exchange, which is an assurance at 
 common law. See ante, Ch. Exchange. 
 
 * By late acts they are enabled to exchange their lands 
 for others of greater value or more conveniently situated. 
 55 G. 3, c. 147. 56 G. 3, c. 52. 
 
 [By the statute 1 ^ 2 G. 4, c. 92, corporations and other 
 trustees, holding lands in trust for charitable purposes, are 
 empowered, under the direction of commissioners to be 
 appointed for the purpose by the Bishop of the diocese where 
 the lands lie, and with the approbation of the Bishop, to 
 exchange.]
 
 451 
 
 OF THE LAW OF INHERITANCE. 
 
 [Considerable alterations having been made in the law of 
 inheritance since the earlier editions of this work, the editor 
 was induced to add the present chapter, to show the leading 
 principles of that branch of the law of real property, as it is 
 affected by the statute of the Z Sf A W. 4, c. 106. 
 
 First, with respect to the descent of estates of inheritance 
 in fee simple in possession ; Secondly, of estates of inheritance 
 in fee simple in remainder or reversion ; Thirdly, of descent 
 by custom ; Fourthly, descent of estates tail, or by statute. 
 
 1. Descent of estates of inheritance in fee simple in pos- 
 session. 
 
 Descent or hereditary succession is the title by which the 
 heir, on the death of the ancestor intestate, acquires his reaj 
 estates, including heirlooms and other chattels annexed to the 
 freehold. To constitute a person lawful heir, he must be 
 legitimate, a natural born subject,* an alien naturalized by act 
 of Parliament, or a denizen by the King's letters patent. 
 Descent may, under certain circumstances, be traced through 
 an alien. f But persons attainted for high treason, and, pre- 
 viously to the 54 G. 3, c. ] 45, for any kind of felony, could 
 neither inherit nor transmit an inheritance to their children. 
 By the latter act no attainder for felony, except for high 
 treason, petty treason or murder, or for abetting the same, 
 
 * 7 Ann. c. 5. 4 G. 2, c. 21. 13 G. 3, c. 21. 4 T. 
 R. 300. 
 
 t 11 <^ 12 W;Z,c.6, explained by 25 G. 2, c. 39. Cru. 
 Dig. 4 ed. p. 322. 
 
 G G 2
 
 452 OF THE LAW OF TT^HETIITANCE. 
 
 shall disinherit any heir. The statute of 3 4" 4 W. A, 
 c. 106, s. 10, enacts, that attainder, happening before the 
 descent takes place, shall not interrupt the course of descent, 
 unless the land shall have escheated in consequence of such 
 attainder. 
 
 There are seven canons, or rules of descent, by which the 
 law of descent was regulated previously to the above statute. 
 
 The first canon of descent is, that inheritances shall lineally 
 descend to the issue of the person who last died seised in 
 infinitum, but shall never lineally ascend. With respect to 
 this canon the recent statute has made two material alterations 
 in descents happening upon deaths on or after the 1st of 
 Janunrif, 1834: the first by section 6, that lineal ancestors 
 may inherit ; and they come in next after the lineal descend- 
 ants of the last proprietor ; thus if y^. dies intestate, and with- 
 out issue, leaving a father, brothers and sisters, the father will 
 take first, as heir to his deceased son, before the brothers or 
 sisters : and the second that actual seisin is not necessary to 
 make the ancestor the root or propositus from whom the des- 
 cent is to be traced ; but by the first and second sections of 
 the act the descent is to be traced from the person last entitled 
 to the land, whether he did or did not obtain actual possession, 
 or the receipt of the rents and profits. Under the old law, an 
 actual entry was necessary to gain an actual seisin ; seisin in 
 law or right of possession was not sufficient,* except where 
 the ancestor acquired the estate by his own act, though he 
 never had actual seisin of it if as in an exchange, one party 
 having entered, the exchange was complete, and if the other 
 died before entry, his heir was in by descent ; or where a 
 party, having contracted for the purchase of an estate, died 
 intestate before the estate was conveyed.^ In the latter case 
 the ancestor was in every sense the purchaser ; and the same 
 
 * 1 Inst. 11, b. 15, a. 
 t 1 Rep. 98. 
 
 I 1 Ves. s. 437.
 
 OF THE LAW OF INHEUITANCE. 453 
 
 rules were and still are applicable to equitable as to legal 
 estates. 
 
 The second canon is, that the male issue shall be admitted 
 before the female ; that is, a son before a daughter, an uncle 
 before an aunt of the deceased ; but his daughters shall suc- 
 ceed before his collateral relations. This canon is explained 
 by the seventh section of the late act in the following words : 
 " 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 de- 
 scendants, shall be capable of inheriting until, all his male 
 paternal ancestors and their descendants shall have failed ; 
 and that no female maternal ancestor of such person, nor 
 any of her descendants, shall be capable of inheriting until 
 all his male maternal ancestors and their descendants shall 
 have failed. 
 
 The third canon is, that where there are two or more males 
 in equal degree, the eldest only shall inherit, but the females 
 all together ;* this canon remains unaltered. 
 
 The fourth canon is, " That the lineal descendants in in- 
 finitum of any person deceased shall represent their ancestor, 
 that is, shall stand in the same place as the person himself 
 would have done, had he been living.f This canon remains 
 unaltered ; this is called succession per stirpes, according to 
 the roots, from which it follows that the nearest relation is 
 not always the heir-at-law, as the next cousin jure repre- 
 sentationis is preferred to the next cousin jure propi?iquitatis. 
 
 The fifth canon was, that on failure of lineal descendants 
 or issue of the person last seised, the inheritance should 
 descend to his collateral relation, being of the blood of the 
 
 * 2 Bl. Com. 214. 
 t lb. 216, 217.
 
 454 OF THE LAW OF INIIKHITANCE. 
 
 first purchaser, subject to the three preceding rules ;* so that 
 where lands descended on the part of the father, none of his 
 relations on the part of his mother could inherit them, but 
 the lands should escheat, and vice versa : this kind of 
 inheritance could not be created by act of the parties, f 
 But the course of descent might, even before the late statute, 
 have been altered, by any act which constituted the owner a 
 purchaser of the estate : as where A. seised in fee ex parte 
 materna made a feoffment in fee to B., and B. enfeoffed A. 
 in fee, this was a new purchase.^ So where a trust estate 
 descended ex parte materna, and the legal estate ex parte 
 paterna to the same person, the legal estate governed the 
 descent. § But the word ^^ purchase'"' by the first and second 
 sections of the late act, has obtained a much more extended 
 import than it possessed before. The first section declares 
 that the word "purchaser^ shall mean the person who last 
 acquired the land otherwise than by descent, or than by^^**^ 
 escheat, partition, (a) or inclosure, by the effect of which the 
 land shall have become part of, or descendible in the same 
 manner as other land acquired by descent : and section 2 
 enacts that the person last entitled to the land (that is, who 
 had a right thereto, whether he did or did not obtain the 
 possession, or receipt of the rents and profits thereof) shall, 
 for the purposes of the act, be deemed the purchaser, unless 
 it can be proved that he inherited the same ; and in that case 
 the person from whom he inherited shall be the purchaser, 
 unless it can be proved that he inherited the same ; and so in 
 like manner to the last person from whom the land shall be 
 proved to have been inherited.! By section 3, where lands 
 
 * 2 Bl. Com. 220. 
 
 t 1 Inst. 12, 13. 
 
 X 1 Inst. 12, b. 1 Atk. 480. 
 
 § 2 Doug. 11\. 1 Sim. 8f Stu. 45. 
 
 (a) [Doe v. Dixon, 5 Adol. S)- Ell. 834.] 
 
 II Suppose A. and B. brothers of the whole blood ; B. has
 
 OF THE LAW OF INIIEIUTANCE. ^ So 
 
 are devised by any testator dying after the 31st of December, 
 1833, to the heir, the heir shall take as a devisee, and not by 
 descent ; and so vphere lands shall be conveyed after that day 
 to the grantor or the heirs of the grantor, he shall be con- 
 sidered to have thereby acquired the same by purchase, and 
 shall not be in of his former estate. Where, however, the 
 grantor conveys a partial interest, and the use results, he 
 will, as to that, be in of his former estate. 
 
 The ,/ifth canon is also materially altered in regard to 
 collateral descent ; for by the sixth section before noticed, 
 the lineal ancestor is preferred to collaterals. 
 
 The sixth canon was that the collateral heir of the person 
 last seised must be his next collateral kinsman of the whole 
 blood :* thus if A. had a son B. by one wife, and C. a son by 
 another, and B. purchased land in fee simple, and died 
 without issue, C, his brother of the half blood, would not 
 
 two sons, C. and D. by different wives ; C. purchases an 
 estate and dies intestate, and without issue, before the passing 
 of the above act ; A. his uncle would be his heir, and not D. 
 his half brother. A. thus taking by descent from C. dies 
 intestate, after the passing of the act, leaving E. his son and 
 heir ; as the estate must descend to the heir of the last pur- 
 chaser, who will be D. the brother of C. by the half blood, he 
 will be entitled to the exclusion of E. the son of A. : this 
 hardship is not provided for by the act. If ^. had executed 
 a conveyance so as to vest the estate in himself as a purchaser, 
 under section 3 of the late act, his son would have inherited. 
 
 So where A. purchases and dies intestate, leaving three 
 daughters B. C. and D,, his co-heirs ; D. dies intestate, 
 leaving E. her son and heir, who then becomes entitled to 
 one-third, instead of the whole of his mother's share, that is, 
 one-ninth instead of one-third ; because, under the second 
 section of the act, the heirs of A. (the purchaser,) would be 
 his two daughters B. and C. jointly with E. the son of D. 
 
 * 2 Bf. Com. 224.
 
 4»j6 of the law of inheritance. 
 
 inherit as heir to B. but the uncle of B. ; or if A. had not 
 only B. a son by his first wife, but D.. a daughter, D. would 
 be heir to her brother, for possessio fratris facit sororern esse 
 hmredem. But if, in the last case supposed, A. died seised in 
 fee, and B. died before entry, and without issue, C. shall 
 inherit as heir to his father. In such cases the important 
 inquiry was, whether the heir acquired such a seisin as 
 by law was required to make him a stock of inheritance. 
 The following were circumstances which conferred this seisin, 
 or what was equivalent thereto, namely, entry or claim,* or 
 the possession of a termor for years,f the possession of one of 
 several tenants in common,;}: of a guardian in socage.§ But 
 now in cases of descent taking place upon deaths happening 
 on or after the 1st day oi January, 1834, the above canon is 
 materially altered. By the fifth section of the above act, it is 
 enacted that no brother or sister shall be considered to 
 inherit immediately from his or her brother or sister, but 
 every descent from a brother or sister shall be traced through 
 the parent. And by section 9, the half blood are admitted 
 to the inheritance, and next in order after any relation in 
 the same degree of the whole blood and his issue, where the 
 common ancestor shall be a male, and next after the common 
 ancestor where such common ancestor shall be a female ; so 
 that the brother of the half blood, on the part of the father, 
 shall inherit next after the sisters of the whole blood, on the 
 part of the father and their issue ; and the brother of the half 
 blood on the part of the mother shall inherit next after 
 the mother : the reason for the variation in the latter case 
 being, that in tracing the descent to a brother of the half 
 blood on the part of the father, the brothers and sisters of 
 
 * 1 Leon. 265. 
 
 t 1 Inst. 15, a. 3 Rep. 41, b. 
 X Small V. Dale, Moore, 868. 
 
 § 1 Inst. 15, a, <^ 14, b. Prec. in Cha. 280. 3 Wits. 516, 
 517. 7 T. R. 386.
 
 OF THE LAW OF INHEUITANCE. 457 
 
 the whole blood have been previously let in to the inheritance, 
 as will be seen by the annexed Table of Descents, II.* 
 
 The seventh and last canon is, that in collateral inheritance, 
 the male stocks shall be preferred to the female, that is, 
 kindred derived from the blood of the male ancestor, however 
 remote, shall be admitted before those from the blood of the 
 female, however near ; unless where the lands have, in fact, 
 descended from a female if for a further explanation of these 
 canons the reader is referred to the annexed Tables of Des- 
 cent ; the first tracing the line of descent according to the 
 canons before the late act, and the second, the mode of 
 devolution of the heirship as altered by that statute. Until 
 that statute it was an unsettled question whether No. X. in 
 the first Table of Descents should be preferred before 
 No. XI. ; that is to say, whether the male branches or 
 descendants of the male stock of the proposittis being ex- 
 hausted, the brother or sister of the paternal grandfather's 
 mother, No. X., should be preferred before the brother 
 or sister of the paternal grandmother's father, No. XL Sir 
 William Blackstone defends his preference of the former, 
 Mr. Cruise advocates the opinion in favour of the latter. 
 The act, by section 8, settles the question in favour of No. X. 
 The annexed Table, No. I., traces the descent according to 
 Sir William Blackstone s system by the numeral letters, and 
 Mr. Cruise's by the figures. 
 
 II. We proceed to offer a few remarks on the descent of 
 estates in fee simple in remainder or reversion. The canons 
 or rules of descent before considered respecting estates in 
 possession did not, previously to the late act, apply to estates 
 in remainder or reversion expectant on an estate of freehold ; 
 because the actual seisin was in the freeholder ; neither are 
 those rules now applicable to descents which took place upon 
 deaths happening before the 1st oi January, 1834. 
 
 * 3 Cru. Dig. ed. 4, p. 343. 
 t 2 Bl Com. 235.
 
 438 OF THE LAW OF INIIEIUTANCE. 
 
 The descent, therefore, of inheritance in fee, in remainder 
 or reversion, was traced to the first purchaser ; and when 
 the remainder or reversion came into possession by the 
 determination of the preceding freehold, it woukl devolve 
 upon the person who at that period was the heir of the first 
 purchaser ; * consequently the half blood were admitted. f 
 It should, however, be observed, that acts of ownership over 
 the remainder or reversion were deemed equivalent to actual 
 seisin, and constituted the person exercising such acts a 
 new stock.l By the first section of the above statute it is 
 enacted that the word " land" shall extend to hereditaments 
 corporeal and incorporeal, and of every tenure, and every 
 interest capable of being inherited, and whether in possession, 
 reversion, remainder, or contingency ; from which enactment 
 the law of inheritance is the same with respect to estates 
 in possession, in remainder, or in reversion. 
 
 III. Descent by custom. The principal modes of cus- 
 tomary descent are, gavelkind, borough-English, and copy- 
 hold, all of which are affected by the stat. 3 <^ 4 fF. 4, c. 106. 
 
 The descent of gavelkind lands is to all the sons equally, 
 and in default of sons to the daughters in like manner ; but 
 females representing males, may inherit with males : § this 
 species of descent extends also to the collateral line, and to 
 limitations in tail, the sons of tenant in tail inheriting 
 equally, as heirs of the body.|| The exclusion of the half 
 blood takes place in gavelkind lands,** only in cases of descent 
 occurring on deaths before the 1st day o{ January, 1834.|f 
 
 * 1 Inst 14, n. 6. 2 Wils. 45. 3 Bos. 4- Pul. 658. 
 Fearne, C. R. 561, 6 ed. 
 
 t 1 Inst. 14. 1 Roll. Ab. 628, pi. 7, 8, 9. 
 
 X 1 Inst. 15, a. 8 Rep. 35, b. 9 Mod. 363. 
 
 § Rob. Gav. 113, ed. 1822. 
 
 II lb. 115, 119. 
 
 ** lb. 131. 
 
 f t 3 <^ 4 ^. 4, c. 106, 4-. 9.
 
 OF THE LAW OF INHERITANCE. 450 
 
 2. Descent of borough-English lands is to the youngest 
 son, and is applicable also to the descent of estates tail :* 
 the right of representation also takes place in borough- 
 English lands ; so that if the youngest son dies in his father's 
 lifetime, leaving an only daughter, she will inherit on the 
 decease of the grandfather. 
 
 This custom does not extend to collaterals ; | so that 
 if the lands descend to the younger brother, and he dies 
 without issue, the lands will descend to the eldest brother : 
 but Lord Coke has said that by some customs the youngest 
 brother shall, in the above case, inherit. 
 
 The above and other customary descents cannot be altered 
 by act of the party ; as where A. seised of lands in borough- 
 English, enfeoffed 5. and the heirs male of his bodj' according 
 to the course of the common law, the latter words were held 
 void. J 
 
 3. With regard to lands held by copy of Court roll, the 
 descent is governed by the custom of the manor ; but in 
 general it is the same as that of lands held in socage.§ The 
 heir of the copyholder, however, is not complete tenant to the 
 lord until admittance ;|| but where the customary descent 
 differs from the common law, the custom is construed 
 strictly.** 
 
 With regard to copyhold, as to other customary lands, the 
 statute of 3 4' 4 W. 4, does not alter the custom by whicli 
 the descent of the lands is governed, except so far as its enact- 
 ments are applicable to them in common with land of freehold 
 tenure. 
 
 * Lit. s. 165. 1 Inst. 110, b. n. 3. 
 
 t Rob. Gav. 118. Cro. Jac. 198. 
 
 X 2 Dy. 179, b. Jenk. Cen. 5, Ca. 70. 
 
 § 2 Ld. Raym. 1024. 1 P. Wms. 63. 1 Roll. Mr. 623. 
 Co. Cop. 41,50. 
 
 II 4 Rep. 23, b. Co. Cop. 41. 
 
 ** 2 Ld. Raym. 1025. 4 Leon. 242. Cro. Car. 410. 
 1 T. R. 466. 5 lb. 26. 12 East, 62.
 
 460 OF THE STATUTE OF DISTRIBUTION. 
 
 IV. The descent of estates tail is not affected by the late 
 statute ; but it is regulated by the statute de donis condition- 
 alibus* and therefore it is called descent by statute. 
 
 The descent of an estate tail must be traced to the first 
 purchaser or donee, and through that description of heirs 
 which is specified in the original gift : so that in tracing the 
 descent to an estate tail the maxim seisinafacit stipitem does 
 not apply :f so, consequently, there is no exclusion of the 
 half blood in the descent of an estate tail ; for the issue in 
 tail are always of the whole blood of the donee.l Neither is 
 the descent of an estate tail interrupted by attainder, for the 
 issue in tail cVaXvuperformam doni, and such issue are as much 
 within the intention of the gift, and as personally described 
 in it, as the ancestor.] § 
 
 OF DISTRIBUTION ACCORDING TO THE STATUTE 
 22 4 23 CAR. II. C. 10, OF THE PERSONAL EF- 
 FECTS OF A PERSON DYING INTESTATE. 
 
 [It should be observed in the first place, that the above 
 statute does not extend to the estate of a married woman ; so 
 that the husband takes the whole of her personal effects, he 
 being entitled by the common law to administer to his de- 
 ceased wife, II and that relations of the half blood take with 
 those of the whole blood in equal degree.** 
 
 * 13 Ed. 1, c. 1. 
 
 t 3 Rep. 41, b. 1 Ves. s. 364. 
 
 % S T. R. 213. 
 
 § 3 Rep. 10. Cro. Eliz. 28. 8 Rep. 165, b. 
 
 II Cro. Car. 106. 29 Car. 2, c. 3, s. 25. 2 Bl. Com. 515, 
 ante, 427. Squib v. Wyn, 1 P. Wms. 379. Elliot v. Col- 
 lier, 3 Atk. 526. 
 
 [** 2 Freeman, 289, 294. Ed. 126. 1 Ves. s. 156.]
 
 OF THE STATUTE OF DISTRIBUTION. -461 
 
 If the intestate leaves a widow and children, the widow Widow and 
 takes one-third ; and the children take the remaining two- ^ " '^®"' 
 thirds equally.* 
 
 If he leaves a widow and no children, she takes a moiety,| Widow. 
 and the next of kin, the other moiety, as after mentioned. 
 
 If he leaves a widow, but neither children nor next of kin, 
 she only takes one moiety, and the Crown the other.| 
 
 If he leaves no widow, the entirety is distributable among Children. 
 his children equally ;§ and if he leaves but one child, it 
 devolves upon such only child. 
 
 If some of the children of the intestate die in his lifetime. Children and 
 leaving children, such children or their lineal representatives tives dVhil- ^" 
 in injinitum take per stirpes equally. || '''■6"- 
 
 If all the children of the intestate die in his lifetime. Grand- 
 
 cliildrcii 8^c 
 leaving children, such grandchildren, or, if all of such grand- 
 children die in the lifetime of the intestate, leaving children, 
 then all such great-grandchildren take equally per capita, 
 claiming in their own right and not by representation.** 
 
 If all the children of the intestate die after his decease, but Vesting of 
 before distribution is made, their shares vest at the decease shares, 
 of the intestate ; f f and their lineal representatives in in- 
 jinitum take per stirpes equally. 
 
 Where distribution is made among the children of the Hotchpot. 
 
 * Sec. 5 of the stat. Palmer v. Garrard, Prec. Cha. 21, 
 
 f Sec. 6 of the stat. 
 
 \ Cave V. Roberts, 8 Sim. 214. 
 
 § Sec. 7 of the stat. Watts v. Crooke, Shotv. P. C. 108. 
 Burnet v. Mann, 1 Ves. sen. 156. D' Avers v. D'Ewes, 
 3 P. Wms. 49. 
 
 II ^ec. 5 of the stat. PetCscase, \ P. Wms. 21. Stanley 
 V. Stanley, 1 Atk. 457. 
 
 ** Walsh V. Walsh. Prec. Chan. 54. Bov)ers v. Littlewood, 
 1 P. Wms. 593. U Avers v. D'Eioes, 3 P. Wms. 50. 
 
 •j-f Edwards v. Freeman, 2 P. Wms. 442. Grice v. Grice, 
 3 P. Wms. 49, note D.
 
 462 
 
 OF THE STATUTE OF DISTRIBUTION, 
 
 Lineal de- 
 scendants. 
 
 Neither wife, 
 child, nor des- 
 cendant of 
 child. 
 
 Representa- 
 tion among 
 collaterals. 
 
 Mother. 
 
 Brothers and 
 sisters, and 
 descendants 
 of brothers and 
 sisters. 
 
 Kindred next 
 after brother's 
 and sister's 
 representa- 
 tives 
 
 intestate, such children (excepting the heir-at-law) * must 
 bring into hotchpot any advancement made by the intestate 
 in his lifetime, t 
 
 The lineal descendants of the intestate in infinitum, are 
 preferred to all ascendants or collaterals.^ 
 
 If the intestate leaves neither widow, child, nor descendant 
 of child, the next of kin are entitled ; § that is, the father if 
 living, takes the whole : but if dead, the mother, brothers 
 and sisters of the intestate, take equally : the children of 
 deceased brothers and sisters standing in loco parentis.^ 
 
 But this right of representation, being among collaterals, 
 extends no farther than to the children of the brothers or 
 sisters of the intestate : ** thus a sister's son excludes a 
 brother's grandson ;ff and an uncle the son of a deceased 
 aunt.lt 
 
 If there be neither brother nor sister, nor the child of a 
 brother or sister, the mother takes the whole. §§ 
 
 But a mother in law takes nothing.|||| If there be no 
 mother, the brothers and sisters take equally ; and the 
 children of a deceased brother or sister stand in loco parentis. 
 
 If there be neither mother, brother, sister, nor children 
 representing a brother or sister, distribution is made, without 
 preference, among those who are then next in degree of 
 kindred to the intestate, according to the civil law.*** 
 
 * 2 P. Wms. 441-2. 
 
 t Sec. 5 of the slat. 2 P. Wms. 442. 
 
 \ Sec. 6 of the stat. Keylway v. Keylioay, 2 P. Wms. 346. 
 
 § Sec. 6 of the stat. 
 
 II 1 Jac. 2, c. 17, s. 7. Keylway v. Keylway, 2 P. Wms. 
 344. 
 
 ** Pett's case, 1 P. Wms. 27. 
 
 f f Pett's case. 
 
 Xt Bowers v. Littlewood, 1 P. Wms. 594. 
 
 §§ 1 Jac. 2, c. 17, s. 7. 
 
 III Duke V. Duchess of Rutland, 2 P. Wms. 216. 
 *** Mentney v. Petty, Prec. Cha. 593. 2 Ath. 117.
 
 OF TIIR STATITTE OF DISTRIBUTION. 463 
 
 Paternal and maternal relations in equal degree take Paternal and 
 
 . ^, * maternal rela- 
 
 together.* ,-„„g 
 
 If there be neither mother, brother, sister, nor children, Grandfather, 
 representing a brother or sister, the grandfather, or, if he is 
 dead, the grandmother f takes, they being preferred before 
 the children of a deceased brother or sister claiming in their 
 own right, and not as representatives. 
 
 Next the grandfather, the great-grandfather (or if he is Great-grand- 
 dead, the great-grandmother) uncles, aunts, nephews and ' 
 nieces claiming in their own right, take together, as being in 
 equal degree. 
 
 If there be none entitled in this degree, then the great- Great-great- 
 ,„,,.„,.,,, 1 grandfather, 
 
 great-grandfather (or if he is dead the great-great-grand- ^p_ 
 
 mother) great-uncle, first-cousin (or uncle's son) and great- 
 nephew (or brother's grandson) take together, being equal 
 in degree. 
 
 Distribution is not to be made until twelvemonths after the Distribution. 
 decease of the intestate.^] 
 
 * Moor V. Bar ham, 1 P. Wms. 53. 
 
 I Blackhorotigh v. Davis, 1 P. Wms. 4 1 , 
 
 % Sec. 8 of the statute.
 
 464 
 
 ON THE LAW OF EXECUTORS AND ADMINIS- 
 TRATORS AS IT RESPECTS THE CHATTELS 
 REAL OF A DECEASED TRUSTEE. 
 
 Interest and 
 power of exe- 
 cutor, &.C. 
 
 [In the following note the editor offers for the use of the 
 student a few observations on the law of executors and ad- 
 ministrators, as it affects chattels real, in gross or attendant, 
 vested in a testator or intestate as a trustee. The note may 
 serve as an appendage to the chapters on terms for years and 
 leases, pages 29 — 60, and 312. 
 
 Where a chattel real vests in a sole or surviving trustee, it 
 may, according to circumstances, either be bequeathed by him 
 to trustees of his trust estates, or, if not so bequeathed, it 
 may devolve upon his executor, or, if he does not appoint an 
 executor, or dies intestate, apon his administrator. If he 
 bequeaths it to two or more trustees, they will of course take 
 as joint-tenants ; and the chattel real will ultimately devolve 
 upon the last survivor ; from whom the representation must 
 be deduced. Co. Lift. 182, a. 
 
 Where there are several executors or administrators, the 
 chattels real of their testator or intestate do not devolve upon 
 them as joint-tenants ; but, whether many or few, in the eye 
 of the law, they take as one person, representing the testator 
 or intestate, and having a several as well as a joint dominion 
 over the whole of his effects. Touch. 484. 2 Prest. Abst. 22. 
 Simpson v. Gutteridge, 1 Mad. 609. Upon this principle it 
 is, that one of several executors or administrators may assign 
 the entirety of the lands comprised in the term vested in the 
 deceased ; and, if it was vested in the deceased beneficially, 
 one of such executors or administrators may demise the whole 
 or any part of the lands. The student will observe, that if 
 the executors or administrators took as joint-tenants, an
 
 OF EXECUTORS AND ADMINISTRATORS, &C. 465 
 
 assignment by one of them would work a severance. 2 Prest. 
 Ahst. 22. 
 
 It follows, therefore, that the survivor equally represents 
 the deceased, and in the case of executors this representation 
 devolves upon the executor of the last surviving executor who 
 has proved* and so on, to the last surviving executor, of the 
 last of the series of executors. When there ceases to be an 
 executor representing the deceased trustee in whom a term 
 was vested, then administration de bonis non^ must be taken Administra- 
 out to such deceased trustee, of his effects left unadministered ^^^^^ 
 by the last surviving executor of the series, with whom the 
 representation ceased. When a sole administrator, or the last 
 survivor of several co-administrators dies, fresh administra- 
 tion must be taken out to the deceased trustee of his goods, 
 left unadministered by the deceased administrator ; for it is 
 a maxim, that neither the executor of an administrator, nor 
 the administrator of an executor, is the legal personal repre- 
 sentative of the original testator. 2 Bl. Com. 506. If there 
 are no other effects of the original testator or intestate, except 
 the term so vested in him as trustee, then letters of adminis- Limited admi- 
 tration must be taken out, limited to the term. To illustrate 
 some of the preceding observations, a term of 500 years is 
 limited to A. and B. in the usual form, as joint-tenants ; B. 
 survives, and appoiuts C. his executor, who proves and dies, 
 without appointing executors; or, having appointed executors, 
 they die in his lifetime, or, surviving him, renounce or die 
 without proving ; the representation to B. ceases ; and ad- 
 ministration must be taken out of the effects of B., left 
 unadministered by C Where there are several executors, the 
 representation devolves upon the survivors and survivor, as 
 above observed, and the law is the same where several joint- 
 administrators are appointed. 
 
 Until probate, no one is complete executor, and the probate Power of exe- 
 is the legal evidence of the executorship. 8 Bar. ^ Cress. p"o^ate^ '^^^ 
 335 : the executor, however, may assign a term vested iri his 
 
 * Infra, p. 466. 
 H H
 
 466 
 
 OF EXECUTORS AND ADMINISTRATORS, &C. 
 
 Disclaimpr. 
 
 Executor 
 trustee. 
 
 testator, as indeed he may do many other acts as executor, 
 before the probate of the will. Touch. 499. Wanqford v. 
 Wangford, Freem. K. B. Rep. 520. And see Watkins v. 
 Brent, 7 Sim. 512. S. C. 1 Myl. ^ Cr. 97. If there are 
 several executors and all prove, the representation is carried 
 on through the executor of the survivor, as before observed : 
 if all the executors renounce, then administration, with the 
 will annexed, must be granted to one or more administrators : 
 but if only one or some of the executors renounce, those 
 proving are the representatives for the time being : but 
 if all who proved die, and any non-proving executor survives, 
 he must either prove or renounce. 1 Prest. Abst. 186. If a 
 sole executor dies before probate, he cannot transmit the 
 succession to his executor. Isted v. Stanley, Dyer, 372, a. 
 Cro. Jac. 614. 1 Salk. 308. So, if there are two executors, 
 and one alone proves, and dies, leaving his co-executor 
 surviving, who dies without renouncing or proving, but 
 appointing executors, it would seem, also, that the repre- 
 sentation ceases, and that the executors of the surviving, but 
 not proving executor, do not represent the original testator. 
 See Bradley's MS. notes, p. 130, in Points in Conv. ed. 1829. 
 1 Prest. Abst. 185. See also ^th Report of Real Property 
 Commissioners, 76-77, where a remedy is proposed for this 
 inconvenience. The editor is not aware of any express 
 decision on the point. 
 
 The executor of an executor may, before probate of the 
 will of his own testator, disclaim to be the executor of the first 
 testator, Cro. Jac. 614. Freem. K. B. Rep. 520. Barker w. 
 Railton, 6 Jurist, 549. But he cannot so disclaim, after he 
 has proved the will of his own testator ; for he thereby 
 becomes to all intents his complete executor, and con- 
 sequently the executor of the first testator. lb. ^ I Prest. 
 Ab. 187. See also, Atk Report R. P. C. 78, where a remedy 
 is proposed. 
 
 When an executor is by the will appointed trustee of any 
 portion of the testator's personal effects, he cannot, after 
 probate, disclaim the trusts, 1 Jacob, 198. Booth v. Booth,
 
 OF EXECUTORS AND A DMrNIPTRATORS, cV'C. 467 
 
 1 Beav. 125 : but where the executor is by the will made 
 trustee of real estate devised to him alone, or to him and 
 other persons in trust, it is considered doubtful, whether, 
 even after probate, he may not disclaim the office of trustee 
 of the real estate. The editor has in his possession several 
 manuscript opinions of eminent counsel from which the 
 better conclusion appears to be, that the probate, which has 
 relation only to the personal estate, does not necessarily 
 amount to an acceptance of the office of trustee of the real 
 estate ; and in one of those opinions, Mr. Preston expresses 
 himself as fully satisfied that the executor might first have 
 disclaimed the trust of the real estate, aud afterwards have 
 accepted the executorship ; but that he considered the other 
 point perfectly new, the inclination of his opinion being, that 
 the disclaimer might also be made after probate. The 
 editor is not aware of any decision on the point. The dictum 
 in Perkins, sect. 548, in reference to a power of sale, seems 
 to favour the power of disclaiming. 
 
 The student is also reminded that the probate of the will. Probate, &c. 
 as well as administration is void, if granted by an incompetent granted"^ ^ ^ 
 authority, as by a bishop of one diocese when the testator or 
 intestate has bona notabilia* in another. 1 Salk. 32. 1 P. 
 Wms. 44. 767, or by an archbishop of effects not lying 
 in his province. Allison v. Dickenson, 1 Hardr. 216. It is 
 therefore a question of importance to ascertain whether the 
 will was proved, and letters of administration granted by the 
 proper Ecclesiastical Court ; a point frequently involved 
 in uncertainty, f 
 
 If all the effects of the deceased lie within one diocese, the 
 power of granting probate or administration rests with the 
 
 * Upon the question whether satisfied terms are bona 
 notabilia, see some opinions collected in Points in Con- 
 veyancing, p. 132. Ed. 1829. 
 
 t See Second Rep. R. P. Com. p. 67—69. Fourth lb. 
 51—54, 76—79. 
 
 H H 2
 
 468 OF EXECUTORS AND ADMINISTRATORS, &,C. 
 
 bishop. 2 Bl. Com. 508. If bona notahilia, that is, goods 
 Bona notahilia. of the value of 51. lie in two or more dioceses, or in two or 
 more peculiars within the same province, the probate or 
 administration must be granted by the Prerogative Court of 
 the Metropolitan of the province. lb. If bona notabilia lie 
 in different provinces, then the archbishop of each province 
 must grant probate or administration of the goods in his 
 province. Hardr. 216. 1 Salk. 39. Wentw. Ex. Off. 110, 
 14 Ed. So if there be bona notabilia in two dioceses of one 
 province, and in one diocese of another province, the arch- 
 bishop, in respect of the former, must grant probate, and, in 
 respect of the latter, the peculiar bishop. 1 Salk. 39. 
 Chain of re- It appears to be doubtful whether the chain of representa- 
 
 undeTd^ff^rcnt ^'°" ^^ complete under probates granted by different Courts, 
 probates. Thus, if there are several executors, and they take out 
 
 probate of the will of their testator in the Prerogative Court 
 of Canterbury, and the surviving executor, having goods of 
 his own only in one diocese, appoints executors and dies, and 
 his executors prove his will in the Bishop's Court of that 
 diocese, it is not settled, whether the executors of the sur- 
 viving executor, are the representatives of the original 
 testator ; as probate was not taken out in the Prerogative 
 Court of Canterbury. These facts occurred in the case of 
 Fowler v. Richards, 5 Russ. 39, and Sir John Leach, M. R. 
 held that the representation was complete. But in the late 
 case oi Jernegan v. Baxter, 5 Sim. 568, Sir L. Shadwell,Y. C. 
 observed, that before he acted upon that decision, he should 
 direct a case for the opinion of a Court of law. See also 
 Ttvyford v. Trail, 7 Sim. 92. Some Courts Baron have 
 enjoyed the immemorial usage of granting probates of wills. 
 For further details upon the subject of probates and grants 
 of administration, the reader is referred to the ancient and 
 modern treatises in which he will find the present subject 
 fully discussed.]
 
 469 
 
 OF STATUTES. 
 
 AS THEY RELATE TO CONVEYANCES. 
 
 Charter of H. 1, A.D. 1101. — Under the feudal law all CkarterHtu 1. 
 lands were inalienable ; but about the latter end of the reign 
 of William Rufus this doctrine began to be relaxed, and 
 lands were allowed to be aliened with the consent of the lord 
 and the next heir. By the above Charter, the feudatory was 
 expressly enabled to alien without the consent of any other 
 person such lands as he had purchased himself; but this 
 express provision did not take away the common law power 
 of aliening lands derived by descent with the concurrence 
 of the lord and heir. At this time the tenant had little more 
 than the usufruct of the land, and therefore it was common 
 to express in feoffments that the lands were holden of the 
 chief lord of the fee, and that the feoffment was made with 
 the consent of the feoffor's heir. A copy of this charter is 
 given in Blackstone's Tracts, p. 286. 
 
 Magna Charta, 17 John, A. D. 1215. — This famous statute Mluihh Churta. 
 made little alteration in the power of aliening feuds, except 
 that it allowed one-fourth part of the lands taken by descent 
 to be aliened without consent of the heir. It, however^ 
 established the widow's right to dower as it now stands 
 (Litt. 36), and exempted lands from Crown debts, when the 
 goods of the debtor were sufficient to answer the debt.
 
 470 
 
 OF STATUTES. 
 
 Cha. Forestn. Charta de Foresta, 9 H. 3, A. D. 1224. — Although by the 
 
 feudal law lands were not allowed to be aliened, yet the 
 King's tenants enjoyed the power of subinfeudation, which 
 was nearly equivalent to a power of alienation. The pro- 
 prietor of a feud granted a portion of the land to another 
 person, to be held of himself, thus creating a tenancy, and 
 yet not severing the land from the feud, for as between 
 himself and the King the ancient services were due. This 
 practice was soon followed by the sub-tenants, who aliened 
 the greatest portion of their lands, and thereby rendered 
 themselves incapable of yielding to the lord his services. 
 The great lords, perceiving- that they thus lost their feudal 
 profits, procured a clause to be inserted in the Charta de 
 Foresta, whereby it was provided, that " no freeman from 
 henceforth shall give or sell any more of his land, but so that 
 of the residue of the lands the lord of the fee may have the 
 service due to him, which belongeth to the fee." See a 
 comment on this clause, 2 Inst. 64. 
 
 Merton 
 
 Statute of Merton, 20 H. 3, A. D. 1236. — This statute wa.s 
 passed in a convent of Augustine canons, situate at Merton, 
 about seven miles from London, whence it derives its name. 
 By this statute it is provided that tenants in dower shall be 
 ^ entitled to emblements ; that lords of manors may enclose 
 their wastes, provided they leave enough common for their 
 tenants ; and that infant heirs shall not be compellable to 
 marry against their consent. 
 
 Mnrlhridijc. Stat, of Marlbridge (or Marlborough, in Wiltshire), 
 
 52 H. 3, A. D. 1267. — By the common law, lessees for years 
 and life could commit waste with impunity. By this statute 
 it is declared, that they shall " yield full damage for the waste 
 committed, and be punished by amerciament grievously." 
 2 Inst. 145. 
 
 Westm. \st. Stat, de Westminster primer, 3 Edtv. 1, A.D. 1276. — By 
 
 this statute the time of memory is limited to the reign of
 
 OF STATUTES. 47 I 
 
 King Richard the First, July 6tli, 1189. This provision Went,,,. \^t. 
 was seldom resorted to, except as a limit to the admission of 
 evidence in tithe suits and claims of prescriptive right. 
 
 Stat, of Gloucester, 5Edw. \, A. D. 1278. — The vemedy for G/ouccster. 
 waste given by the statute of//. 3, being found inadequate 
 to the loss sustained, this statute enacted that the place 
 wasted should be recovered, together with treble damages, 
 as an equivalent for the injury done to the inheritance. 
 Harrow School v. Anderton, 2 Bos. <^' Pul. 86. Gibso?i v. 
 Wells, 1 A^ew Rep. 290. 
 
 Stat, of Acton-Burnell, 11 Edw. 1, A. D. 1283. — By the Acton- Bamell. 
 common law the lands of a debtor could not as against 
 himself be taken in execution in an action of debt, but as 
 against his heir they might. As commerce increased the 
 inconvenience of this doctrine was felt, and about the 11th of 
 Edw. 1, the Stat, de mercatorihus was passed at Acton-Burnell, 
 a castle belonging to the family of Burnell, in Shropshire, 
 whereby it was enacted, that the chattels and devisable bur- 
 gages of the debtor might be sold for the payment of his 
 debts. — At this time lands were not generally devisable ; but, 
 by the local customs of certain borough towns, the lands and 
 tenements within their respective precincts were allowed to 
 be passed by will, and these by the above statute were made 
 amenable to debts. And see 13 Edxv. 1, A. D. 1285. 
 
 Stat, de Donis, 13 Edw. 1, A. D. 1286. — At the date of this De Bonis. 
 statute a gift to a man and the heirs of his body, provided 
 that if he had no heirs the land to revert, was construed to 
 give the donee a conditional fee, which enabled him, after 
 issue begotten, to alien the land, and thereby to disinherit 
 the issue, and to deprive the donor of his right of reverter. 
 This interpretation is declared by the statute de donis to be 
 " contrary to the minds of the givers, and the form expressed 
 in the gift ;" wherefore it is ordained, that the " will of the 
 giver, according to the form in the deed of gift manifestly
 
 472 
 
 OF STATUTES. 
 
 Dc Donis. expressed, be henceforth observed ; so that they to whom the 
 land is given under such condition shall have no power to 
 alien the land so given, but that it shall remain unto the issue 
 of them to whom it is given after their death, or shall revert 
 unto the giver or his heirs, if issue fail or there is no issue 
 at all. And if a fine be levied hereafter upon lands so given, 
 it shall be void in the law." A new writ is then provided 
 for what the statute calls a " new case," which writ is called 
 a formedon, from the object of it being to enforce the form 
 of the gift. 
 
 Westm. 2d.— 
 Elegit. 
 
 Stat, of Westminster 2d, 13 Edio. 1, c. 18, A. D. 1286.— 
 By this statute it is declared, " that when a debt is recovered, 
 or acknowledged, or damages adjudged in the King's Courts, 
 the plaintiff' shall have his election either to have a writ of 
 Jieri facias, or else that the sheriff" shall deliver to him all 
 the chattels of the debtor, saving only his oxen and beast of 
 the plough, and also one-half of his lands^ until the debt be 
 levied upon a reasonable price or extent." On this statute 
 was framed the writ of elegit, so called because the creditor 
 elects to take his remedy on the lands. 
 
 From the word acknowledged in this statute has sprung 
 the powerful security by warrant of attorney, which is an 
 authority from the debtor addressed to one or more attornies 
 of some Court at Westminster, authorizing him or them to 
 acknowledge a judgment, as for money lent or a debt due, 
 which enables the creditor to sue out a writ of elegit as 
 effectually, as if the judgment had been obtained in an 
 adversary suit. In a modern case, Lord Kenyon said, he 
 saw no diff'erence between a judgment that was obtained in 
 consequence of an action resisted, and a judgment signed 
 under a warrant of attorney : since the latter was only to 
 shorten the process, and lessen the expense of the pro- 
 ceedings. Doe V. Carter, 8 T. R. 57. Et vide Sampson v. 
 Goode, 2 Barn. Sf Aid. 568. The sheriff", however, does 
 not deliver actual possession on a writ of elegit, but only 
 legal seisin, and the creditor is left to his action of ejectment
 
 OF STATUTES. 473 
 
 to obtain actual possession of the land ; on judgment in that Elegit. 
 
 ejectment a writ of possession issues, and a jury is impan- 
 
 nelled to ascertain the moiety delivered by the sheriff. 
 
 Hence it has been suggested, that a warrant of attorney to 
 
 confess a judgment in ejectment is a proper accompaniment 
 
 to a mortgage, as it shortens the process of recovering 
 
 possession when the interest becomes in arrear, and at the 
 
 same time assists in keeping the mortgagor punctual to his [Infra, 1 Sf2 
 
 engagements — the only inconvenience attending a mortgage. '^ • '■■ -J 
 
 Stat, of Quia Emptores, 18 Edu\ I, s. 1, c. 1, A. D. 1290. — Quiu anptvre.s. 
 Prior to this statute any person might by a grant of land 
 have created a tenure as of his person : but if no such tenure 
 were reserved, the feoffee held of the feoffor by the same 
 services by which the feoffor held of his superior lord. The 
 consequence was, that all the fruits of tenure fell into the 
 hands of the feoffors or mesne lords, to the prejudice of the 
 superior lords of the fee ; for remedy whereof, it was by this 
 statute enacted, " That from henceforth it shall be lawful to 
 every freeman to sell at his own pleasure his lands and 
 tenements, or part of them, so that the feoffee shall hold the 
 same lands or tenements of the chief lord of the same fee, by 
 such service and customs as his feoffor held before." 
 
 It will be observed that this act relates only to convey- 
 ances in fee. If then a tenant in fee aliens to one for life, 
 with remainder to another in tail, allowing the reversion to 
 devolve upon himself, the tenant for life and tenant in tail 
 still hold of the donor, who holds of the superior lord. 
 Consequently, if an estate be given to a man and his heirs 
 for the life of another person, and the grantee dies without 
 heirs, the estate should escheat to the grantor and not to the 
 superior lord. The doctrine of escheat, however, is scarcely 
 applicable to a descendible freehold, and the Statute of 
 Frauds provides, that if there be no special occupant, the 
 estate pour autre vie shall go to the executors or adminis- 
 trators of the deceased tenant. Whether the words " no 
 special occupant" embrace the case here supposed, is a point
 
 474 OF STATUTES. 
 
 Quia cmptorcs. not now material to consider. Escheat arises in respect of 
 the seigniory ; and this statute has reduced all subinfeudations 
 to the original tenure of the chief lord of the fee. Since its 
 date all lands must have changed owners, and on the first 
 change of ownership the lands ceased to be holden of the 
 feudist, and became again tributary to the lord. Manors no 
 doubt were coeval with parishes, the one being a division 
 peculiar to the clergy, and the other consisting of the 
 domains of the great lay-lords. The boundaries of these 
 domains could not at first have been so accurately defined as 
 the boundaries of parishes, because they were in some 
 measure dependent on the wealth or poverty of the owners. 
 But manors appear to have been established, nearly as they 
 now exist, at the time of the Norman Conquest ; and although 
 a tenure might have been created prior to this statute, it is 
 apprehended that a manor could not have been then created 
 by act of the party ; for a manor, according to Perkins, s. 
 670, must consist of demesnes and services, and the latter 
 can only arise by immemorial usage ; see also 2 Black. Com. 
 89. 1 TVatk. Cop. 5, 17, 4th ed. At this da^ all freehold 
 lands vsrithin a manor are holden of the lord of that manor, to 
 whom they return in case of the tenant's death without heirs. 
 12 East, 102, et infra, 54 G. 3. 
 
 An exposition of this statute is given in 2 Inst. ; et vide 
 Bradshaw v. Laivson, 4 T. R. 443. 2 lb. 424. Doe v. 
 Huntingdon, 4 East, 271. 2 Maule 8f Selw. 175. On the 
 discovery of America the territory of Virginia was granted 
 to a company of adventurers, " to be holden of the manor of 
 East Greenwich in fee and common socage, paying in lieu of 
 all services one-fifth of the gold and silver that should be 
 found." See also the stat. 54 G. 3, infra, as to cases in which 
 corruption of blood is now taken away. 
 
 \Uichd.-ird.— Stat. 1 Rich. 3, c. 1, A. D. 1483.— At the date of this 
 
 Uses. statute, if a feoffment were made to A. to the use of B., A. 
 
 took the legal estate and />, took a trust or confidence in 
 
 equity, A. was called the feoffee to uses and B. the cestui que
 
 OF STATUTES. 475 
 
 use. The cestui que use however was the real beneticial Uses. 
 owner, and the feofFee was merely a trustee. The cestui que 
 use, being in possession, frequently aliened the lands, and 
 afterwards the feofFee entered, which gave rise to several 
 vexatious suits in Chancery : to remedy this inconvenience, 
 the above statute gave the cestui queu^e in possession a power 
 of alienating the legal estate by feoffment or other legal 
 assurance, without the consent or concurrence of the feoffees. 
 The Statute of Uses, 27 H. 8, has in efi^ect repealed this act 
 of Richard by conveying the estate of the feoffee to the cestui 
 que use immediately on its creation, thereby effectually de- 
 priving the feoffee of all power of molestation. Mr. J. Law- 
 rence, however, still treats the statute as existing, 7 T. R. 47. 
 8 lb. 494 ; but Sir Edward Sugden has shewn that it has not 
 now any operation whatever ; Gilb. U. 67 ; et vide 1 Sand, 
 Uses, 23, 4th ed. 
 
 Stat, of Fines, 4 H. 7, cap. 24, A. D. 1489.— By this Fhws. 
 statute, after reciting that fines were essential to avoid strifes 
 and debates, it was enacted, that every fine levied in the Court 
 of Common Pleas, of any lauds, tenements, or other heredita- 
 ments, should be openly read and proclaimed in Court the 
 same Term, and in three Terms next following, four days in 
 every Term, and that such proclamations being so made, such 
 fine should be final and conclude as well privies as strangers 
 to the same, except women covert (other than parties to 
 such fine), and every person within the age of twenty-one 
 years, in prison or out of the realm, or not of whole mind at 
 the time of such fine levied, not being parties to such fine. 
 Saving to every person and their heirs, other than such parties, 
 such right as they had to such lands, &c. at the time of such 
 fine ingrossed, so that they pursued their title by action or 
 entry within five years after the said proclamations made or 
 their respective rights accrued. 
 
 In the next reign, by an act to explain the foregoing statute [32 Hai 8, 
 it was enacted, that all fines levied before the Justices of 
 the Common Pleas, with proclamations according to the
 
 476 OF STATUTES, 
 
 Fines. Statute 4 H. 7, c. 24, by persons of full age, of any lands, 
 
 tenements, or hereditaments entailed to the person levying 
 the same, or to any ancestor of the same person, in possession, 
 remainder, reversion, or in use, should, after such fine levied, 
 ingrossed, and proclaimed, be a bar against such persons and 
 their heirs, claiming the said lands by force of such entail, 
 and against all other persons claiming such lands to their use, 
 or to the use of any heir of the bodies of them. This act was 
 not to extend to entails in wives of the gift or procuration of 
 their husbands, nor to entails of the gift of the Crown, whereof 
 the reversion at the time of levying such fine should be in 
 his Majesty. 
 
 By the Stat. 31 Eliz. c. 2, fines were declared to be good, 
 although they were proclaimed only once in each Term, 
 instead of four times. 
 
 [But fines are now abolished by the stat. 3 ^^ 4 TV. 4, 
 c. 74.] 
 
 Jointures. Stat, of Jointure, 11 H. 7, c. 20, A.D. 1495.— Tf any 
 
 woman having any estate in dower, or for term of life, or 
 in tail jointly with her husband, or only to herself or to her 
 use, in any manors, lands, tenements, or hereditaments of 
 
 r „, , . the inheritance or purchase of her husband, or given to the 
 
 [ Watkins V. . 
 
 Lewix. 1 Rusx. husband and wife in tail or for life by any of the ancestors of 
 ^ '"^' ■ ' the husband, or by any other person seised to the use of the 
 husband or of his ancestors, shall, being sole or with any 
 after-taken husband, discontinue, alien, release, or confirm 
 with warranty, or by covin, suffer any recovery of the same, 
 all such recoveries, discontinuances, &c. shall be void ; and 
 the person next entitled to the inheritance after the woman's 
 decease may enter as if no such discontinuance, &c. had been 
 made. s. 1. 
 
 If any of such after-taken husbands and women, or any 
 seised to their use, shall do, make, or suffer any such discon- 
 tinuance, recoveries, &c., the heir in tail, or person entitled 
 to the inheritance after the woman's decease, may enter on 
 and enjoy such lands, &c. as against such husband during his
 
 OF STATUTES. 477 
 
 life, according to their respective interests as if such women jointuren. 
 had been dead ; provided such women, after the decease of 
 their husbands, may re-enter and enjoy the same lands 
 according to their first estate therein, s. 2. 
 
 If such woman at the time of such discontinuance, reco- 
 veries, &c. be sole, then she shall be barred of all interest in 
 such lands, &c., and the person next entitled to an estate of 
 inheritance therein after her decease may enter and enjoy the 
 same according to his title, s. 3. 
 
 This act shall not extend to any recovery or discontinuance 
 in which the heir next inheritable to such woman, or where 
 the reversioner next after the death of such woman, is con- 
 senting to the same. s. 5. 
 
 Every such woman after the death of her first husband may 
 give, sell, or make discontinuance of any such lands for term 
 of her life only. s. 6. For an exposition of this stat., see 
 Gilb. U. 339. Cov. Rcc. 213. 
 
 [The above statute is now repealed, except as to lands 
 comprised in settlements made before the passing of the act 
 3 & 4 ?F. 4, c. 74, s. 17. See also sect. 16.] 
 
 Stat, of Executors, 21 If. 8, c. 4, J. D. 1529. — This sta- Executors. 
 tute recites, that land devised to be sold by divers executors 
 cannot by common law be sold by part of them ; wherefore 
 it is enacted, that where part of the executors, named in any 
 will directing lands, tenements, or other hereditaments to be 
 sold by them after the testator's death, refuse to administer, 
 and the residue of the executors take on them the charge of 
 the will, then all bargains and sales of such lands, &c. made 
 by the latter only, shall be as effectual as if all the executors 
 had joined in making the bargain and sale. 
 
 At the date of this act, lands were only devisable in par- 
 ticular places ; but feoffments to such uses as the feoffors 
 should appoint enabled the owners of land to declare the uses 
 by a testamentary writing, and these declarations of use were 
 the wills alluded to by the statute, and therefore it may be 
 supposed that this act was rendered nugatory by the Statute
 
 478 OF STATUTES. 
 
 Executors. of Wills. By construction, however, this statute has been held 
 
 to apply to devises at this day, and to embrace, not only a 
 power but an absolute devise of the legal estate to the execu- 
 tors to sell. Bonifaut v. Greenfield, Cro. Eliz. 80. See Bro. 
 Devise, pi. 3 ; and Hawkins v. Kemp, 3 East, 410. The 
 devise must be to the persons as executors; or at least the 
 fund when raised must be distributable by them in that cha- 
 racter. A mere devise to persons to sell, and afterwards an 
 appointment of them as executors, will not, it is said, bring 
 the case within the act. Sug. Gilb. U. 13S. See further on 
 this Stat. 1 Sug. Pow. 140. 1 Poiv. Mortg. 248, a, and the 
 case of Tylden v. Hyde, ante, p. 268. 
 
 Uses 
 
 Jointures. 
 
 Stat, of Uses, 27 H. 8, c. 10, A. D. 1535.— This famous 
 statute is treated of ante, p. 240. Besides its peculiar 
 operation in reference to uses, it enacts, that where a woman 
 has a jointure, she shall not be entitled to her dower also ; 
 but if she be evicted of her jointui-e, her dower shall revive ; 
 and that if the jointure be made after marriage, she shall 
 have her election, when the coverture has ceased, to have 
 either her dower or her jointure, but not both. 
 
 Enrolment. Stat, of Enrolments, 27 H. 8, c. 16, A. D. 1536. 
 
 statute is also treated o^ ante, pp. 356, 357, and 361. 
 
 -This 
 
 Partition. Stat, of Partition, 31 H. 8, c. 1, A. D. 1539. — By this 
 
 statute it was enacted, that all joint-tenants and tenants in 
 common of any estate of inheritance in their own right, or in 
 the right of their wives, should be compelled to make par- 
 tition between them, in like manner as coparceners by the 
 common law were compellable to do. This statute relates to 
 estates of inheritance only. By a stat. of the next year, joint- 
 tenants and tenants in common for lives or years are declared 
 compellable to make partition in the same way. 
 
 mils. Stat, of Wills, 32 H. 8, e. 1. A. D. 1540.— By this statute 
 
 it is enacted, that all persons having any manors, lands.
 
 OF STATUTES, 479 
 
 tenements, or hereditaments, holden in socage or of the inih. 
 nature of socage tenure, shall thereafter have full and free 
 liberty, power, and authority to give, dispose, will, and 
 devise the same, as well by his last will and testament in 
 writing, as by any act or acts lawfully executed in his life, at 
 his free will and pleasure. In confirmation of this stat. it was 
 enacted by the 34 ^- 35 H. 8, c. 5, that all and singular 
 person and persons, having a sole estate or interest in fee- 
 simple, or seised in fee-simple, in coparcenary or in common, 
 of and in any manors, lands, tenements, rents, or other 
 hereditaments, in possession, reversion, or remainder, or 
 of rents or services incident to any reversion or remainder, 
 shall have full and free liberty, power, and authority to give, 
 dispose, will, or devise the same to any person or persons 
 (except bodies politic and corporate), by his last will and 
 testament in writing, at his and their own free will and 
 pleasure. 
 
 The Enabling Stat, of 32 H. 8, c. 28, J. D. 1540.— EnahU„y Siat. 
 By the common law, all persons may make leases to endure 
 so long as their interest in the land continues, but no longer. 
 The Stat, enabled a tenant in tail to make a lease for three 
 lives, or twenty-one years, to bind his issue : Secondly, a 
 husband seised in right of his wife in fee-simple or fee-tail, 
 to make a similar lease to bind his wife and her heirs, 
 provided she joins therein : Thirdly, ecclesiastical persons 
 seised of an estate of fee-simple in right of their churches 
 (not parsons or vicars, who are seised for life only), to make 
 leases to bind their successors. But certain requisites must 
 be observed in making those leases ; for which see 2 Black. 
 Com. 319. As to the clause saving the wife's entry in this 
 statute, vide supra, p. 395 — 6, and for other enabling statutes, 
 see 55 G. 3, c. 147. 56 G. 3, c. 52. 56 G. 3, c. 141. 39 
 ^ 40 (t. 3, «. 41 ; by which latter act ecclesiastical lands 
 may be let in parts, so that the aggregate rents amount 
 to the old reservation ; and see on this subject, 8 Co. 69. 
 Cro. Car. 22. 4 Cru. Dig. 70, 4th ed. 3 Poiv. Morty. 383.
 
 480 
 
 Ileversio7is. 
 Conditions. 
 
 OF STATUTES. 
 
 Stat, of Reversions, 32 //. 8, c. 34, J. D. 1540. -By the 
 common law, if a man let land to another for life, by in- 
 denture, rendering rent with a condition of re-entry in default 
 of payment, if afterwards the lessor granted the reversion to 
 a stranger, and the tenant for life attorned, such grantee 
 could not take advantage of the condition as the lessor or his 
 heirs might have done if the reversion had continued in him. 
 But now by the above statute grantees of reversions, and 
 privies in estate, are enabled to take advantage of the breach 
 of conditions and covenants against the lessees the same 
 as the lessors or grantors might have done ; and by sect. 2, 
 lessees may have the like remedies against the grantees of the 
 reversions which they might have had against their grantors. 
 For an exposition of this statute, see Co. Litt. 215, a. 
 
 Recoveries. Stat, of Recoveries, 34 ^ 35 H. 8, c. 20, A. D. 1543.— 
 
 This statute is noticed, ante, p. 212. As to the operation of 
 fines on estates tail of the gift of the Crown, see Statute for 
 the Exposition of Fines, ante, p. 473. 
 
 Disahling Stat. Disabling Statutes, — \ Eliz.c. 20. 13 Eliz. c. 10. 14 Eliz. 
 c. 11. 18 Eliz.c. 11. 43 Eliz. c.9. 17 G. 3, c. 53. 21 G.3, 
 c. 66. 39, 40 G. 3, c. 41. 43 G. 3, c. 84. 55 G. 3, c. 147. 
 5Q G.3, c. 141. 57 G. 3, c 99.— These statutes regulate 
 the power of alienation between ecclesiastical persons in 
 possession and their successors. They are too voluminous 
 for insertion here. The subject of them is in part discussed 
 in Gov. Mortg. Prec. 285, particularly with reference to the 
 power of a rector to charge his living : [and see Shaw v. 
 Pritchard, 10 Barn. ^ Cress. 241. Aberdeen v. Newland, 
 4 Sim. 281. Flight v. Salter, 1 Bar. ^ Adol. 673. Gibbons 
 V. Hooper, 2 lb. 734. Doe v. Ramsden, 4 lb. 608. Newland 
 V. Watkin, 9 Bing. 113. Fairclothx. Gurney, lb. 622.] 
 
 Fraudulent 
 
 Conveyince. 
 
 Stat, of Fraudulent Conveyances, 13 Eliz. c. 5, A. D. 1570, 
 made perpetual by 29 Eliz. c. 5. — This statute enacts that 
 every conveyance of lands, hereditaments, goods, and
 
 or STATUTES. 
 
 481 
 
 chattels, or of any lease, rent, common or other profit or Fraudulent 
 charge, out of lands, &c., by writing or otherwise, and every """^S''"' 
 bond, suit, judgment, and execution, to be had or made with 
 the intent to defraud creditors or others of their actions, 
 suits, debts, accounts, damages, penalties, forfeitures, heriots, 
 mortuaries, and reliefs, shall be deemed (only as against that 
 person, his heirs, executors, administrators and assigns, 
 whose actions, &c. are or shall be any way disturbed, delayed, 
 or defrauded,) to be utterly void. And by the 27 Eliz. 
 c. 4, «. 2, made perpetual by the statute 39 Eliz. c. 18, it is 
 enacted that every conveyance of lands, tenements, or other 
 hereditaments whatsoever, had or made ivith the intent and 
 purpose to defraud and deceive any person or persons, bodies 
 politic or corporate, who shall purchase the same, shall 
 be deemed and taken (only as against that person or persons, 
 body politic or corporate, his and their heirs, successors, 
 executors, administrators, and assigns,) to be utterly void, 
 frustrate, and of none effect. 
 
 The deeds which are rendered void by these statutes are 
 of two sorts : — 1. Deeds made with an express intent to 
 defraud creditors or subsequent purchasers. 2. Deeds made 
 upon good but not valuable considerations ; which are usually 
 called voluntary conveyances. These statutes have been 
 very prolific in litigation, and the cases upon them are both 
 numerous and complicated. They are collected and treated 
 of with great ability by Mr, Roberts, in his Essay on Fraud- 
 ulent Conveyances ; and by Mr. Atherley, in his Treatise on 
 Settlements. [It would appear to be the better opinion, that 
 to render a conveyance fraudulent within the statute 13 Eliz. 
 c. 5, the party at the time of making it must be indebted to the 
 extent of insolvency ; and that a person may render himself 
 insolvent by conveying his property to a person who is not a 
 creditor. Shears v. Rogers, 3 Bar. Sf Adol. 362.] 
 
 Stat, of Recoveries, 14 Eliz. C. 8, A. D. 1572. — After Recoveries by 
 
 reciting that tenants in tail after possibility of issue extinct, *''"'* ■''"^ '•^^' 
 and other tenants for life or lives, had suffered common reco- 
 
 I I
 
 482 
 
 OF STATUTKS. 
 
 Recoveries by 
 tenant for life. 
 
 veries, to the prejudice of those in remainder or reversion, it 
 is enacted, that all such recoveries had or prosecuted by covin, 
 against any such particular tenant, or against any other with 
 voucher over of such particular tenant, shall as against all 
 persons in remainder or reversion be utterly void, provided 
 that that act shall not extend to recoveries by good title, or 
 to recoveries by assent and agreement of the persons in 
 remainder or reversion, so that such assent appear of record 
 in any of her Majesty's Courts. 
 
 Tenants for life were thus enabled to join in recoveries 
 without forfeiting their estates ; et vide 3 Taunt. 373, arguendo. 
 As to errors in fines and recoveries, see 23 Eliz. c. 3. 27 Eliz. 
 c. 9. 31 Eliz. c. 2. 32 Geo. 2, c. 16. [See also 3^4 
 JV. 4, c. 74, § 8—12.] 
 
 Limitations. 
 
 Stat, of Limitations, 21 Jac. 1, c. 16, A. D. 1623.— For 
 quieting of men's estates and avoiding suits, be it enacted, 
 that no person shall hereafter make any entry into any lands, 
 tenements, or hereditaments, but within twenty years next 
 after his or their right or title shall first descend or accrue to 
 the same ; except infants, femes covert, persons non compos 
 mentis, imprisoned or beyond the seas, who shall have ten 
 years next after his and their full age, discoverture, coming 
 of sound mind, enlargement out of prison, or coming into this 
 realm, to make their entry or claim in. 
 
 In applying this statute to a case in practice, the principal 
 object was to ascertain the precise period when the possession 
 became adverse, for from that time only the twenty years 
 began to run ; and it is to be remembered that each successive 
 owner in remainder had twenty years to assert his title 
 from the time the remainder fell into possession : but when 
 the twenty years had once commenced, they continued to run 
 on, although disabilities intervened. The Court of Chancery, 
 in analogy to the Statute of Limitations, adopted the period 
 of twenty years within which all equitable rights and interests 
 are held barred, as stated ante, p. 231. [The old remedies
 
 OF STyVTUTES. 483 
 
 by real action have been abolished by the Statute of Limi- lAmitotionx. 
 tations. 3 4-4 TV. i, c. 27, s. 34.] 
 
 Stat, abolishing Tenures, 12 Car. 2, c. 24, A. D. 1660.— By Abolition of 
 
 . . tenures. 
 
 this Statute it is enacted, that all tenures by knight's service, 
 held of the King or others, and the fruits and consequents 
 thereof, be henceforth taken away and discharged, and that 
 all tenures of every sort be turned into free and common 
 socage, save only tenures in frankalmoign, copyholds, and the 
 honorary services of grand serjeanty ; and that all tenures 
 ■which shall be created by the King, his heirs, or successors, in 
 future shall be held in free and common socage. But it is 
 declared that the act shall not take away any rent heriot 
 or suit of Court incident to any tenure altered by that act, 
 or other services incident or belonging to tenure in common 
 socage, or the fealty or distresses incident thereto, sect. 5. 
 
 It is also enacted, sect. 8, that the father, although under Gvardians. 
 twenty-one, may by deed or will, attested by two witnesses, 
 appoint who shall be guardians of his children after his 
 decease, until they attain twenty-one, or for any less period, 
 in exclusion of the mother by nature and of the next of blood 
 by socage. [But now no will of a minor is valid, 1 Vict. c. 26, 
 
 5.7.] 
 
 The testamentary guardian has the custody not only of 
 the lands and goods descended or left by the father,' but of all 
 lands and goods any way acquired or purchased by the infant, 
 which the guardian in socage had not. Vaugh. 185, 186- 
 2 Fonhl. Treat. Equity, 225. 5th ed. ; et vide 2 Byth. 
 Prec. 399. 
 
 Stat, of Life Estates, 19 Car. 2, c 6, s. 2, A. D. 1661.— Life Estates. 
 It is enacted by this stat., that if any person for whose life 
 an estate is granted shall go abroad, and in any action com- 
 menced for the recovery of the lands by the lessors or rever- 
 sioners, there shall be no sufficient proof that such person is 
 alive, the judge shall direct the jury to give their verdict as if 
 the person so remaining abroad were dead ; and by the stat. 6 
 
 I I 2
 
 484 
 
 OF STATUTES. 
 
 Life Estates. Ann. c. 18, it is provided that the remainderman and rever 
 sioner may once a year apply to the Lord Chancellor, on 
 affidavit, for an order to have any person, on whose life his 
 remainder or reversion is expectant, produced to such persons 
 (not exceeding two) as shall in such order be named by the 
 party petitioning ; and on non-production of such person, the 
 remainderman or reversioner, shall be at liberty to enter upon 
 the estate as if such tenant for life were dead. But if the 
 tenant for life afterwards appear, he may re-enter. 
 
 Distributions. Stat, of Distributions, 22 8^ 23 Car. 2, c. 10, A.D. 1670. 
 — This statute is explained by Lovelass, Toller, and Mascall. 
 [The reader is referred to the chapter upon this statute, supra, 
 p. 460.] 
 
 Frauds, 
 
 All agreements 
 respecting land 
 to he in writing. 
 
 Except leases 
 not exceeding 
 three years. 
 
 Assignments 
 and surrenders 
 to be in writing. 
 
 Stat, of Frauds and Perjuries, 29 Car. 2, c. 3, A.D. 1677, 
 — for prevention of many fraudulent practices and perjury, 
 be it enacted. 
 
 That from henceforth all leases, estates, interests of free- 
 holds or terms of years, or any uncertain interest of, in, to, or 
 out of any messuages, manors, lands, tenements, or heredita- 
 ments, made or created by livery and seisin only, or by parol, 
 and not put in writing and signed by the parties so making or 
 creating the same, or their agents thereunto lawfully authorized 
 by writing, shall have the force and effect of leases or estates 
 at will only, and shall not, either in law or equity, be deemed 
 or taken to have any other or greater force or effect ; any 
 consideration for making any such parol leases or estates to 
 the contrary notwithstanding, s. 1. 
 
 Except nevertheless all leases not exceeding the term of 
 three years from the making thereof whereupon the rent 
 reserved to the landlord, during such term, shall amount unto 
 two-third parts at the least of the value of the thing demised. 
 «. 2. 
 
 And moreover. That no leases, estates, or interests, either 
 of freehold or terms of years, or any uncertain interest, not 
 being copyhold or customary interest, of, in, to, or out of any
 
 OF STATUTES. 
 
 485 
 
 messuages, manors, lands, tenements or hereditaments, shall [7 §• 8 Vkt. 
 at anytime hereafter be assigned, granted or surrendered, '^' ' *• 
 unless it be by deed or note in writing, signed by the party so 
 assigning, granting, or surrendering the same, or their agents, 
 thereunto lawfully authorized by writing or by act and 
 operation of law. s. 3. 
 
 And be it further enacted, That from henceforth no action All contracts 
 shall be brought whereby to charge any executor or adminis- 
 trator upon any special promise to answer damages out of his 
 own estate ; or whereby to charge the defendant upon any 
 special promise to answer for the debt, default, or miscarriages 
 of another person ; or to charge any person upon any agreement 
 made upon consideration of marriage : or upon any contract 
 or sale of lands, tenements, or hereditaments, or any interest 
 in or concerning them : or upon any agreement that is not to 
 be performed within the space of one year from the making 
 thereof; unless the agreement upon which such action shall 
 be brought, or some memorandum or note thereof, shall be in 
 writing, and signed by the party to be charged therewith, or 
 some other person thereunto by him lawfully authorized, s. 4. 
 
 And be it further enacted, That from henceforth all devises All devises to 
 and bequests of any lands or tenements devisable either by "' writing, 
 
 ^ •/ •> ana signed in 
 
 force of the Statute of Wills or by this statute, or by force of the presence of 
 
 - /. T^ 1 p 1 1 three witnesses. 
 
 the custom ot Kent, or the custom ot any borough, or any 
 other particular custom, shall be in writing, and signed by the 
 party so devising the same, or by some other person in his 
 presence and by his express directions, and shall be attested 
 and subscribed in the presence of the said devisor by three 
 or four credible witnesses, or else they shall be utterly void, 
 and of none effect, s. 5. 
 
 And, moreover, No devise shall be revocable otherwise Bevocation ot 
 than by some other will or codicil, or by burning, tearing, devises. 
 cancelling, or obliterating the same by the testator himself, or 
 in his presence and by his directions and consent, s. 6. 
 
 [The two preceding sections, 5 and 6, are now repealed by 
 the recent statute I Vict. c. 26, s. 2, so far as respects wills 
 made on or after the first day oi January, 1838.]
 
 486 
 
 OF STATUTES. 
 
 All declarations 
 of trust to be in 
 writing. 
 
 Trusts hy im- 
 plication. 
 
 Debts o/ cestui 
 que trust. 
 
 Estates pur 
 auter vie. 
 
 Personal 
 engagements 
 above lOZ. to be 
 in writing. 
 
 And be it further enacted, That all declarations or creations 
 of trusts or confidences of any lands, tenements, or heredita- 
 ments, shall be manifested and proved by some writing, signed 
 by the party who is by law enabled to declare such trust, or 
 by his last will in writing or else they shall be utterly void 
 and of none effect, s. 7. 
 
 By sect. 8, trusts arising by implication of law are excepted, 
 but all assignments of trusts must be in writing. 
 
 By sect. 10, it is declared that lands, tenements, rectories, 
 tithes, rents, and hereditaments, in the hands of trustees, may 
 be taken in execution for debts recovered against the cestui 
 que trust, but that such lands shall be held free from the in- 
 cumbrances of the trustee ; and trusts are declared assets in 
 the hands of the heirs of the cestui que trust. 
 
 But no heir by reason thereof is to become chargeable in 
 respect of his oivn estate, s. 11. 
 
 And be it further enacted, That from henceforth any estate 
 pur auter vie shall be devisable by a will in writing, signed by 
 the party so devising the same, or by some other person in his 
 presence and by his express directions, attested and subscribed 
 in the presence of the devisor by three or more witnesses ; 
 and if no such devise thereof be made, the same shall be 
 chargeable in the hands of the heir, if it shall come to him by 
 reason of a special occupancy, as assets by descent, as in case 
 of lands in fee-simple ; and in case there be no special occu- 
 pant thereof, it shall go to the executors or administrators of 
 the party that had the estate thereof by virtue of the grant, 
 and shall be assets in their hands, s. 1 2. 
 
 And be it further enacted, That from henceforth no 
 contract for the sale of any goods, wares, or merchandizes, 
 for the price of ten pounds sterling or upwards, shall be 
 allowed to be good, except the buyer shall accept part of the 
 goods so sold and actually receive the same, or give some- 
 thing in earnest to bind the bargain or in part of payment, or 
 that some note or memorandum in writing of the said bargain 
 be made and signed by the parties to be charged by such 
 contract, or their agents thereunto lawfully authorized, 5. 13.
 
 OF STATUTES. 487 
 
 The statute then relates to nuncupative wills. 
 [The sections 12, 19, 20, 21, and 22, of the Statute of 
 Frauds are repealed by the statute 1 Vict. c. 26, s. 2.] 
 
 Stat, of Fraudulent Devises, 3 IV. ^ M. c. 14, A. D. 1691, Fraudulent 
 
 *T 11 • • devises. 
 
 IS repealed by the 1 IV. 4, c. 47, and amended provisions 
 substituted in lieu thereof, infra. 
 
 Stat, of Clandestine Mortgages, 4 45 fV. ^ M. c. 16, Clandestine 
 A. D. 1692. — If any person having once mortgaged his lands 
 for a valuable consideration shall again mortgage the same 
 lands, or any part thereof, to any person, the former mortgage 
 being in force, and shall not discover in writing to the 
 second mortgagee the first mortgage, such mortgagor so 
 again mortgaging his lands, shall have no relief or equity of 
 redemption against the second mortgagee. But this act 
 is not to bar any widow of dower who does not legally join 
 her husband in such second mortgage. 
 
 Stat, of Mortmain, 7^-8 W. 3, c. 37, A. D. 1696.— By Mortmain. 
 the statute de religiosis, 7 Edw. 1, it is declared that no person 
 shall " presume to buy or sell, or by any device to appropriate 
 lands, (under pain of forfeiture of the same) whereby such 
 lands may come into mortmain." The effect of this statute 
 was to prohibit all alienations to corporate bodies. By 
 the above statute of W. 3, it was made lawful for the King, 
 his heirs and successors, to grant to any person or persons, 
 bodies politic or corporate, their heirs and successors, 
 licenses to alien in mortmain, and also to purchase, acquire, 
 take, and hold in mortmain, in perpetuity or otherwise, any 
 lands, tenements, rents, or hereditaments whatsoever. By a 
 subsequent statute (9 G. 2, infra), alienations to charitable 
 uses are allowed under certain regulations. 
 
 Posthumous Children, 10 4- 11 W. Z, c. 16, A.D. 1699.— Posthumous 
 By this act posthumous children born after the decease of " '^"' 
 the father, are declared entitled to take estates as if they 
 were born in his lifetime, although there be no limitation to 
 trustees to support the contingent uses to such children.
 
 488 
 
 OF >TATUTES. 
 
 Reyistry Acts. Registry Acts, 2 (§■ 3 June, c. 4, A. D. 1703. 5^6 Anne, 
 c. 18, 1706. 6 Anne, c. 35, 1707. 7 Anne, c. 20, 1708. 
 8 G. 2, c. 6, 1735. — By these statutes it is provided, that all 
 deeds, wills, and documents of every description, concerning 
 or affecting any hereditaments in Middlesex, York, or 
 Kingston-upon-HuU, shall be registered in offices established 
 for that purpose in the counties and town above mentioned. 
 In these statutes copyhold estates, leases at rack-rent, and 
 leases for twenty-one years, where the actual possession 
 accompanies the lease, as also chambers in Serjeants' Inn, 
 the Inns of Court and Chancery, are excepted ; and it 
 is declared that no judgment, statute, or recognizance shall 
 take effect but from the time of registry. For an exposition 
 of these statutes, see Rigge on Registration, 1 Sug. V. 4" -?*• 
 549. 2 /6. 211. 2 Pow. Mart. 622, a, 627, a. 2 TVatk. 
 Cop. 155, 4th ed. 
 
 Advowsons. Stat, of Advowsons, 7 Anne, c. 18, A. D. 1708. — By this 
 
 act it is declared, that no usurpation shall displace the estate 
 of the patron ; and that if coparceners, joint-tenants, and 
 tenants in common, are seised of an advowson, and a parti- 
 tion is made to present by turns, each shall be seised of a 
 separate estate to present accordingly. 
 
 By Stat. 12 Anne, c. 12, *. 2, A. D. 1713, clergymen are 
 prohibited from purchasing the next avoidance or presentation 
 of any ecclesiastical benefice, so as to be presented and collated 
 thereupon themselves. The words of the act are very exten- 
 sive, but they are generally taken with a less signification 
 than they import. For an exposition of this statute and the 
 subject in general, see Mireh. on Advowsons. 
 
 Infants. The Statute of 7 Anne, c. 19, A. D. 1708, relative to 
 
 infants, has been repealed, and amended provisions in lieu 
 thereof are substituted by the 1 W. 4, c. 60, infra. 
 
 Copyholds. Stat, of Copyholds, 9 G. 1, c. 29, A. D. 1722, which 
 
 statute enables femes covert and infants to be admitted to
 
 OF STATUTES. 489 
 
 copyhold lands by their attorneys or giiardiaos, is now Copyholds. 
 repealed, and provisions in substitution thereof enacted in 
 1 W. 4, c. 65, *. 3—11, infra. 
 
 Statutes 4 G. 2, c. 10, A. D. 1734, 6 G. 4, c. 74, 9 G. 4, Lunatio. 
 c. 78, and 11 G. 4, c. 65, are repealed by 1 JV. 4, c. 60, 65, 
 infra. 
 
 Stats, concerning Landlord and Tenant, 4 G. 2, c. 28, Tenant holding 
 A. D. 1734. — Where any tenant holds over after demand °^^^' 
 made, and notice in writing given by the landlord for de- 
 livering the possession (notice to quit in writing before the 
 expiration of the lease, being a sufficient notice within this 
 Stat., 2 Black. Rep. 1076), such persons so holding over shall 
 pay double the yearly value of the lands so detained, for so 
 long time as the same are detained, to be recovered by action 
 of debt ; against the recovering of which penalty there shall 
 be no relief in equity. 
 
 This act also declares that on half a year's rent becoming Land!. §• Ten. 
 in arrear, the landlord may commence his ejectment without 
 any formal demand or re-entry ; but he is not to recover 
 against a mortgagee of the lease, if, within six months, such 
 mortgagee pays the rent, and afterwards duly performs the 
 covenants. And if before judgment in ejectment be pro- 
 nounced, the tenant tender the rent and costs, the proceedings 
 are to cease. The statute further enacts, that chief leases 
 may be renewed without surrendering all the under leases. 
 
 By the stat. 11 G. 2, c. 19, s. 18, A. D. 1738, it is de- Renewals. 
 clared, that in case any tenant shall give notice of his inten- 
 tion to quit, and shall not accordingly deliver up possession 
 of the premises at the time in such notice mentioned, then 
 such tenant, his executors or administrators, shall from thence- 
 forward pay to the landlord double the rent which he should 
 otherwise have paid. 
 
 This statute also empowers landlords to follow goods fraud- 
 ulently and clandestinely removed for thirty days, and to seize 
 stock or cattle on the premises, and to cut all sorts of corn,
 
 490 
 
 Renewals. 
 
 Foreclosures. 
 
 [Power to 
 assignee of 
 judgment. ] 
 
 Chnrilable 
 Uses. 
 
 OF STATUTES. 
 
 grass, hops, or other product for arrears of rent. It also 
 regulates the law upon distress and replevins, and enacts 
 penalties on tenants secreting ejectments served on them. It 
 further provides for cases where tenants desert the premises, 
 leaving the possession vacant. See also the 57 G. 3, c. 93, for 
 regulating the costs of distresses for small rents, and the act, 
 1 G. 4, c. 87, for facilitating the remedy by ejectment, infra. 
 
 Stat, of Foreclosures, 7 G. 2, c. 20, J. D. 1734.— By this 
 act it is provided, that after payment or tender by the mort- 
 gagor of principal, interest, and costs, the mortgagee shall 
 maintain no action of ejectment or foreclosure, but may be 
 compelled to re-assign his securities, and to deliver all the 
 mortgage deeds and writings to the mortgagor. For an expo- 
 sition of this Stat, see ] Pow. Mortg. 168, a. 2 lb. 992, 998. 
 
 [9 G. 2, c. o, an important statute relating only to Ireland, 
 gives to the assignee of a judgment the same powers as the 
 original conusee, a proper memorial according to the require- 
 ments of the act being made by the con usee : the same powers 
 are by the 25 G. 2, c. 14, (I) extended to all subsequent 
 assignees.^ 
 
 Stat, of Charitable Uses, 9 G. 2, c. 36, A. D. 1736.~This 
 is an enabling statute rather than a disabling one. It enacts, 
 that no hereditaments, nor any sum to be laid out in here- 
 ditaments, shall be in any ways conveyed or settled to any 
 person or body corporate in trust, or for the benefit of any 
 charitable uses whatsoever, unless such gift, conveyance or 
 settlement be made by deed indented, sealed, and delivered 
 in the presence of two or more credible witnesses, twelve 
 calendar months at least before the death of the donor or 
 grantor (including the days of the execution and death), and 
 be enrolled in his Majesty's High Court of Chancery within 
 six calendar months next after the execution thereof; sect. I. 
 By sect. 2 it is declared, that nothing thereinbefore men- 
 tioned relating to the sealing and delivering of any deed
 
 OP STATUTES. 491 
 
 twelve calendar months before the death of the yrantur shall Charitable 
 extend to any purchase for a full and valuable consideration 
 actually paid before the making such conveyance without 
 fraud or collusion. Sect. 3 declares, that all other gifts to 
 charitable uses shall be void. For the numerous classes of 
 cases within the operation of this act, see 2 Roper's Legacies, 
 ch. 19, p. 117, et seq. ed. 1828. 
 
 By the 52 G. 3, c. 102 (9th July, 1812), a memorial of 
 all charities is required to be registered with the clerk of the 
 peace in each county, within six calendar months after the 
 passing of the act ; and it is declared, that all charitable 
 donations thereafter to be made shall be registered in like 
 manner with the clerk of the peace within twelve months 
 after the making the same. 
 
 By 1 ^- 2 G. 4, c. 92, 1821, trustees of charities are 
 enabled to exchange lands, supra, p. 450. 
 
 PigOtt's Act, 14 G. 2, C. 20, A. D. 1741. This Stat. pro- Recoveries— 
 
 vides, 1st, That the deeds making the tenant to t\\e precipe '^'' * ' • 
 may be executed at any time during the Term in which the 
 recovery is suffered. 2d, That it is not necessary for freehold 
 leases for lives at reserved rents to be surrendered, nor for 
 the lessees to join in making a tenant to the writ of entry. 
 3d, That a purchaser after twenty years may produce the 
 recovery deed in evidence of the recovery having been 
 suffered, although no entry of it appears on record. 4th, 
 That all common recoveries not disputed within twenty years 
 shall be deemed valid, notwithstanding the deed for making 
 the tenant to the prcBcipe be lost or shall not appear. And, Occnpancu. 
 oth, that estates pur autre vie, in case there be no special 
 occupant thereof, of which no devise shall have been made 
 according to the Statute of Frauds, or so much thereof as 
 shall not have been so devised, shall go, be applied, and 
 distributed in the same manner as the personal estate of the 
 testator or intestate. Supra, p. 73, 74. 
 
 By Stat. 21 //. 8, c. 15, lessees for years are secured from 
 the operation of recoveries sufi'ered by their landlords.
 
 492 OF STATUTES. 
 
 And by 14 Eliz. c. 8, lessees for life are empowered to join 
 in recoveries without incurring a forfeiture of their estates, 
 ante, p. 481 — 2. 
 
 [The statute 3 Sf 4 W. 4, c. 74, abolishes fines and re- 
 coveries in England, and by ss. 7, 8, 9, 10, and 11, renders 
 valid fines and recoveries in certain cases without amendment. 
 See 4 Sf 5 lb. c. 92, the corresponding statute for Ireland, 
 ss. 4, 5, 6, 7, and 8.] 
 
 Wills— Attest- Wills, 25 G. 2, c. 6, A. D. 1752. — By this statute {s. 1,) 
 " '""■ it is enacted, that if any beneficial devise or legacy be given 
 
 to a person attesting the will devising, or bequeathing such 
 benefit (except the same be for payment of a debt due to such 
 person,) such devise or bequest shall, so far only as concerns 
 the person so attesting, be utterly void ; and such person 
 shall be admitted as a witness to such execution, within the 
 intent of 29 Car. 2, c. 3, s. 5. 
 
 By sects. 3 and 6 it is declared, that a devisee or legatee 
 who has been paid, or accepted, or released, or has refused 
 his devise or legacy, shall be admitted as a competent witness. 
 By sect. 4 it is declared, that after a legatee has renounced 
 his legacy, he shall never after be entitled to it ; and if he 
 has accepted his legacy, he shall [be entitled to retain it, 
 notwithstanding the will or codicil be afterwards adjudged 
 void for want of due execution, or for any other cause,] It 
 is further declared, that a legatee attesting a will and dying 
 in the lifetime of the testator, or before he has received or 
 refused his legacy, shall be admitted as a legal witness [by 
 proof of his handwriting.] The credit of a witness is to be 
 determined by the Court. 
 
 [The above act does not apply to wills merely disposing of 
 personal estate. 3 Add. (Arches,) 210, 213, n. 1 Hagg. 
 (Prerog.) 58. 3 Russ. C. R. 436. 3 Sim. 40.] 
 
 By a late case it has been decided, that an executor is a 
 competent witness to the testator's sanity, although he takes 
 a beneficial interest under his will. Doe d. Wood v. Teage, 
 5 Barn. Sf Cress. 335. [See the recent statute 1 Vict. c. 26, 
 ss. 14 — 17, supra, pp. 374 — 6, text.']
 
 OF STATUTES. 493 
 
 Renewal of Leases by incapacitated Persons. 29 G. 2, c. 31, Renewal of 
 A. D. 1756, and 11 G. 3, c. 20, A. D. \11\, are repealed, ^"''''^ 
 and amended enactments substituted, by 1 W. 4, c. 65, ss. 12 
 to 16, infra. 
 
 Nullum Tempus Act, 9 G. 3, c. 16, A. D. 1769.— By this Nullum Tem- 
 statute the Crown is disabled from suing for the recovery of ^"*' 
 any lands, tenements, or hereditaments, where its right hath 
 not accrued within a period of sixty years next before ; et 
 vide 1 1 East, 488, for a case on its construction. 
 
 Roman Catholics, 18 G. 3, c. 60, A. D. 1778.— By this Papists. 
 act Roman Catholics taking the oaths of allegiance to his 
 Majesty, abjuration of the Pretender, renunciation of the 
 Pope's civil power, and abhorrence of the doctrine of de- 
 stroying heretics, and deposing princes excommunicated, 
 are enabled to take and hold lands; et vide 31 G. 3. c. 32. 
 [7 G. 4, c. 7.] 
 
 [The statute 7 G. 4, c. 45, A. D. 1826, which repealed the Money land. 
 39 Sf 40 G. 3, c. 56, {A. D. 1800) (commonly called Lord 
 Eldon's act, for barring quasi entails of money directed to be 
 laid out in lands to be settled) was repealed by the statute 
 3 <^ 4: fV. 4, c. 74, except so far as related to proceedings 
 commenced under it, before the 1st day of January, 1834. 
 The statute 3 <^ 4 W.4, c. 74, abolishing fines and recoveries, 
 empowers tenants in tail by deed, in conformity with its 
 provisions, to bar their estates tail : and confers upon them 
 at the same time more extensive powers of alienation than 
 they possessed through the medium of fine or recovery. The 
 71st section enacts that lands to be sold of any tenure where 
 the money arising from sale thereof shall be subject to be 
 invested in the purchase of lands to be settled, so that any 
 person, if the lands were purchased would have an estate tail 
 therein, and also money subject to be invested in the purchase 
 of lands to be settled, so that any person, if the lands were 
 purchased, would have an estate tail therein, shall, for the
 
 494 OF STATUTES. 
 
 Moneif-hmii. purposes of the act, be treated as the lands to be purchased, 
 and be considered subject to the same estates as the lands to 
 be purchased would have been actually subject to : and all 
 the previous clauses of the act, so far as circumstances will 
 admit, shall in the case of lands to be sold (except copyhold) 
 apply to such lands, in the same manner as if the lands to be 
 purchased with the money to arise from the sale thereof, were 
 directed to be freehold, and were actually purchased and 
 settled ; and shall in the case of lands to be sold as aforesaid, 
 being copyhold, apply to such lands, as if the lands to be 
 purchased with the money to arise from the sale thereof were 
 directed to be copyhold, and were actually purchased and 
 settled ; and shall in the case of money subject to be invested 
 in the purchase of land to be so settled as aforesaid, apply 
 to such money in the same manner as if such money were 
 directed to be laid out in the purchase of freehold lands, and 
 such lands were actually purchased and settled : except that 
 where the disposition shall be of leasehold or of money so 
 circumstanced as aforesaid, such leasehold or money shall, as 
 to the person in whose favour or for whose benefit the dis- 
 position is to be made, be treated as personal estate ; and 
 except as to bankruptcy the deed of disposition thereof shall 
 be an assignment by deed to be enrolled in Chancery within 
 six calendar months after its execution ; and in every case of 
 bankruptcy the disposition of such leasehold or money shall 
 be made by the commissioners and completed by enrolment 
 as before directed in regard to lands, not held by copy of 
 Court roll. Section 63 is the corresponding section in 
 4^ Sf 5 W. 4, c. 92, for Ireland.] On the construction of 
 Lord Eldon's act see 5 Madd. 407. 5 Ves. 12. 6 lb. 576. 
 8 lb. 609. 9 lb. 462, 56. The Irish Act for a similar 
 purpose is 58 G. 3, c. 46, A. D. 1818. 
 
 Crou-n Lands. Crown Lands, 39 ^ 40 G. 3, c. 88. See 1 G. 4, c. 1, 
 infra, p. 501. 
 
 The lands which in this act are recited to devolve on the 
 Crown for want of heirs, are only such as are held immediately
 
 OF STATUTES. 495 
 
 of the Crown, as is apparent from the construction given to Crown Lands. 
 the two prior acts respecting escheats (8 H. 6, c. 16. 18 H. 6, 
 c. 6): in the case of Doe v. Redfern, 12 East, 96, 102 : et 
 vide supra, stat. Quia Emptores, and 54 G. 3, c. 145 ; as to 
 corruption of blood, infra, p. 496. 
 
 Thelluson's Act, 39 8^ 40 G. 3, c. 98, A. D. 1800.— This Accumulative 
 statute has been already noticed and commented on, ante, '"* *' 
 pp. 208—9. 
 
 Inclosure Act, 41 G. 3, c. 109, A. D. 1801. — This is an inchxure Act. 
 act for consolidating the provisions usually inserted in local 
 inclosure acts, and for facilitating the mode of proving the 
 several facts usually required on the passing such acts. The 
 provisions are too numerous for insertion here. It was 
 amended by 1 4" 2 6^. 4, c. 23, which gave landlords a power 
 of distress before the execution of the award, and enabled 
 incumbents to grant leases in certain cases. 
 
 Land Tax Consolidation Act, 42 G. 3, c. 116, A.D. 1802. Land Tax. 
 — By sect. 52, tenants in tail are enabled to convey such 
 parts of their estates as shall be deemed eligible and neces- 
 sary to be sold for the redemption of the land tax charged 
 thereon, by deed indented and enrolled, or registered in the 
 manner prescribed by this act ; and it is declared, that every 
 such deed shall be as effectual as if the tenant in tail had 
 levied a fine or suffered a recovery thereof. The late acts 
 on this subject are 1 <^ 2 G. 4, c. 123. 3 G. 4, c. 14. 
 4 G. 4, c. 68. 7^8 G. 4, c. 75. 9 G. 4, c. 38. 
 
 Stat, concerning Lunatics, 43 G. 3, c. 75, A. D. 1803. — Lunatics. 
 Repealed and amended enactments substituted in 1 W. 4, 
 c. 65, infra. 
 
 Property Tax Consolidation Act, 46 G. 3, c. 65, A. D. Property Tar. 
 1806, expired 1816. — The following is a list of the acts on 
 this subject, which are now no farther serviceable than as
 
 496 
 
 OF STATUTES. 
 
 Property Tax. shewing the allowances to be made in old accounts. 38 G. 3, 
 c. 16. — \0l. per cent, on incomes above 2001. a year, 1798. 
 39 G. 3, c. 13. 39 G. 3, c. 22. 39 G. 3, c. 42. 39 G. 3, 
 c. 72. 39 4- 40 G. 3, c. 96. 43 G. 3, c. 122.— reduced to 
 51. per cent. 45 G. 3, c. 110. — raised to 6^/. per cent. 46 G. 
 3, c. 65. — raised to \0l. per cent. 1816, 5Q G. 3, c. 65. — 
 continuing former acts till arrears paid. On the motion of 
 Mr. [now Lord] Brougham in 1816, all the official accounts 
 and returns, and every paper connected with this tax, were 
 ordered by the House of Commons to be burnt ; which was 
 accordingly done. 
 
 Annuity Act. Annuity Act, 53 G. 3, c. 141, A.D. 1813, July, — amended 
 
 3 G. 4, c. 92. — By these acts every grant of annuity is re- 
 quired to be enrolled in Chancery within thirty days after its 
 execution, otherwise it is declared null and void. See 1 Byth. 
 Prec. 330, for an exposition of these statutes, and the late 
 cases of Cupit v. Jackson, 1 M^Cl. ^ Yo. 495. Calton v. 
 Porter, 2 Bing. 370. Fairfield v. Weston, 2 Sim. ^ Stu. 95. 
 Hicks V. Keats, 2 Barn. Sf Cress. 1. A lb. 69. Storton v. 
 Tomlins, 2 Bing. 475. [4 75. 214. 5 Barn. ^ Cress. 258. 
 8 Dow. ^ By. 77 B. 6 Barn. ^ Cress. 165, 366, 689. 1 Sim. 
 153, 689. 3 Vo. Sf J. 136. 3 Buss. 267. 9 Bar}i. Sf Cress. 
 396. 2 Bar. ^ Adol. 315.] 
 
 Corruption 
 of blood. 
 
 Corruption of Blood, 54 G. 3, c. 145, A. D. 1814.— By 
 this statute corruption of blood is taken away for attainder of 
 felony, except in cases of treason, petit treason, and murder. 
 The statute enacts that no attainder of felony, except in the 
 lastly-mentioned cases, shall extend to the disinheriting of any 
 heir, nor to the prejudice of the right or title of any person 
 or persons, other than the right or title of the offender or 
 offenders, during his, her, or their natural lives only. 
 
 Between forfeiture and escheat there is this difference. 
 Forfeiture is a punishment for a malignant offence. Escheat 
 arises from an obstruction in the course of descent. The 
 former is personal to the offender ; the latter respects his
 
 OF STATUTES. -497 
 
 successor. Forfeiture affects the rents and profits only ; Corruption 
 escheat operates on the inheritance. Thus, in the case of °* ""' ' 
 forfeiture for felony, if the felon be seised of an estate in fee- 
 simple, the lands will stand forfeited to the King for a year, 
 day, and waste, and afterwards to the lord of the manor for 
 the residue of the felon's life, provided the lord, as is usually 
 the case, can shew a prescriptive right to or a grant from the 
 Crown of felon's goods. If the lord cannot prove his right to 
 the goods and chattels of the felon, then the rents and profits 
 of the felon's estates will belong to the Crown for the residue 
 of the felon's life. 1 Inst. 39, b, 36, b, 40, a. On the felon's 
 death, if there has been no attainder, — that is, if sentence of 
 death hath not been passed upon him, — his lands will descend 
 to his heir (without prejudice, however, to the Kings year, 
 day, and waste) ; but if, in addition to the conviction of felony, 
 judgment of death has passed upon the felon, his blood has 
 become corrupted, and he can have no heir ; in which case 
 the lands will on his death escheat to the lord of the fee, or 
 to the King if the tenure be immediately of him. See 3 Prest. 
 Abs. 391. The above statute takes away the effect of 
 attainder, and therefore escheats are now confined to natural 
 death without heirs, except in cases of treason and murder. 
 If the owner of fee-simple lands were convicted of forgery, Escheat. 
 and, before the law was altered, sentence of death passed 
 upon him, which was commuted to transportation for life, 
 the King took his year, day, and waste, the lord of the 
 manor enjoyed the rents and profits as bona felonum for 
 the life of the felon, and on his death his heir-at-law 
 succeeded to the estate by descent in the usual way. The 
 legal estate, it is conceived, is in the felon during his life, 
 which he may alien so as to disappoint his heir but not the 
 lord; the purchase money, however, if any, would belong to 
 the lord as part of the goods and chattels of his felon, who, 
 being degraded below the ancient villein, is also himself part 
 of the lord's property. 
 
 A notion prevails (sanctioned no doubt by the recital in the 
 Stat. 39 ^ 40 G. 3, c. 88, infra. Crown Lands), that if a fee- 
 
 K K
 
 498 OF STATUTES. 
 
 simple tenant dies without heirs his lands revert to the King ; 
 which is only true in cases where the lands are holden imme- 
 diately of the King (as in ancient demesne), or where all 
 badges of tenure having been neglected, it is no longer known 
 of whom the lands are mediately holden. Escheats, it is con- 
 ceived, belong to the lord in right of his seigniory. They are 
 a fruit of tenure, and were not abolished by the statute of 
 Charles. Military tenures only were abolished by that statute, 
 the rents and services were reserved, and fealty is a service 
 which is still due from the fee-simple tenant to the lord of 
 the manor. The boundaries of manors are scrupulously pre- 
 served by the perambulation of the court -leet homage every 
 third year ; and when a tenant within that boundary dies 
 without an heir (as a bastard for instance), the lands naturally 
 revert back to the lord of the manor, from whom they were 
 
 [Lord Down originally derived. See Booth, 135. May v. Street, Cro. 
 
 I jUrhtl'ke.] Eliz. 120. 3 Cru. Dig. 416, ed. 4. Doe w. Redfern, 12 
 East, 96. 1 Rose. 34. 4 Haw. P. C. 478, 7th ed. 2 Watk. 
 Cop. 366, and particularly 2 Black. Comm. 244, infra, p. 501. 
 1 G. A, c. \, as to the Crown lands and titles by escheat, et 
 ante, p. 494. [See also 4 «^ 5 W.A,c. 29.] 
 
 Copyriijlit. Copyright, 54 G. 3, c. 156, A. D. 1814. — This act extends 
 
 to authors and their assigns the sole right of printing original 
 compositions for twenty-eight years, and for the life of the 
 author if living at the end of that time. On this statute see 
 Brooke v. Clarke, 1 Bar7i. ^' Aid. 396, respecting Mr. Har- 
 fjrave's edition of Co. Litt., who survived the first impression 
 upwards of fifty years. [See also 3 S^- A fV. 4, c. 15. 6 (^ 7 
 fV. 4, c. 1 10. 1 <§• 2 Vict. c. 59, and 5S)-6 Vict. c. 45, which 
 last act continues copyright of books for author's life, and 
 seven years beyond, but if that is short of forty-two years from 
 first publication, then till such period is complete. Jb. c. 100. 
 Q 8f1 lb. c. 65. 7 <$• 8 lb. c. 12.] 
 
 Attestations. Stat, of Attestation, 54 G. 3, c. 168, July, 1814. — By this 
 
 statute it is enacted, that every deed or other instrument 
 already made, with the intention to exercise any power, autho-
 
 OF STATUTES. 499 
 
 rity, or trust, shall be of the same validity and effect as if a Attestations. 
 memorandum of attestation of signature had been subscribed 
 by the witness or witnesses thereto, and that the attestation 
 of the witness or witnesses thereto, expressing the fact of 
 sealing, or of sealing and delivery, without expressing the 
 fact signing, or any other form of attestation, shall not 
 exclude the proof or the presumption of signature. This act 
 was occasioned by the decisions in Wright v. Wakeford, 
 
 4 Tmint. 213, and Doe v. Peach, 2 M. Sf S. 576, but is not 
 prospective. 
 
 Stamp Duty Consolidation Act, 55 G. 3, c. 184, A. D. Stamps. 
 1815. 1 ^ 2 G. 4, c. 55. 3 G. 4, c. 117. Transfers of 
 Mortgage. 6 G. 4, c. 45, 46. 5 G. 4, c. 41, repeal of 
 duties on law proceedings. Irish Stamp Act, 1 ^ 2 G. 4, 
 c. 112. 
 
 Copyhold surrenders to Will, 55 G. 3, c. 192, Juli/, 1815. Copyholds. 
 — All future devises of copyhold lands are by this act 
 declared valid, although there shall not have been a sur- 
 render to the use of the will, in the same manner to all 
 intents as if such surrender had been made. But it is 
 declared that the act shall not render valid any devise which 
 would have been invalid if a surrender had been made, and 
 the like stamp duties and fees are made payable on admission 
 of the devisee as if a surrender to will had been actually 
 made. For an exposition of this statute, see 1 Watk. Cop. 
 202, 4th ed. [See Doe v. Ludlam, 7 Bing. 275. Doe v. 
 Bartle, 5 B. ^ Aid. 501, &c. Doe v. Hickman, 4 B. 
 Sf Adol. 56.'\ 
 
 [The above statute is repealed by the 1 Vict. c. 26, and 
 provisions substituted by ss. 3, 4, and 5. See Doe v. Wilson, 
 
 5 Ad. ^ Ellis, 321.] 
 
 By the common law aliens, that is, persons born out of the yfliens. 
 dominions of the Crown of England, (except the children 
 and grandchildren of natural-born subjects, are incapable 
 K K 2
 
 500 OF STATUTE?. 
 
 Aliens. of holding freehold estates for their own benefit, unless they 
 
 are naturalized by Act of Parliament, or made denizens by 
 the King's letters patent, 1 Inst. 2, h. The reason given 
 why an alien cannot purchase lands is, because the kingdom 
 might be therel)y impoverished by transporting its revenues 
 into a foreign country, and putting a part of it under the 
 subjection of a foreign prince. Sty. 2\. If the purchase be 
 made with the King's license, it seems that an alien may 
 hold. See 14 H. 4, c. 20. He cannot protect himself by 
 taking a conveyance in a name of a trustee, for the mischief 
 is the same as though he had purchased the lands himself. 
 Rex V. Holland, All. 15. 1 Boll. Abr. 194. Com. Big. 
 Alien, c. 3. Harg. n. 2. Co. Litt. 2, ib. Aliens, therefore, 
 generally purchase in the names of their wives or children 
 (being natural-born subjects) by way of advancement : and 
 they are empowered by statute 13 G. 3, c. 14, to lend money 
 on mortgage of West India estates. The statute 32 H. 8, 
 c. 16, s. 13, makes void all leases of houses or shops granted 
 to an alien artificer or handicraftsman. It seems, however, 
 if an alien artificer occupies a dwelling-house or shop under 
 an agreement which does not amount to a lease, as if he be 
 tenant from year to year, or for one year or a shorter time, 
 an action for use and occupation will lie against him. 
 Pilkington v. Peach, 2 Show. 135. By the statute 11 4" 12 
 TV. 3, c. 6, it is enacted, that all persons, being natural-born 
 subjects, may inherit and make their title by descent from 
 any of their ancestors, lineal or collateral, although their 
 father or mother, or other ancestor through whom they 
 derive their pedigree, were born out of the King's allegiance. 
 But see the subsequent statute, 25 G. 2, c. 39. The 
 following statutes impose restrictions upon naturalization, 
 56 G. 3, c. 86, {A. D. 1816,) continued and amended by 
 58 G. 3, c. 96, 5 G. 4, c. 37, and 7 G. 4, c. 54. This 
 subject is treated of more fully in 1 The. Co. Litt. 91 — 94. 
 As to American aliens, see the case of Doe dem. Thomas v. 
 Acklam, 2 Barn. <^' Cress. 779. [See also Com. Dig., tit. 
 ''Alien," ed. 1822. Hammond. And see the 7 <^ 8 Vict. 
 c. 66, i?ifra.']
 
 OF STATUTES. 501 
 
 [59 G. 3, c. 12, s. 8, 9, 10. 12. 17. A.D. 1819.— By this act churchwardens 
 churchwardens and overseers of the poor are enabled to build '^^ Cor "oration 
 and enlarge work-houses, and to purchase land for that for holding 
 
 j„ ... „, ., 1.. Parish Lands. 
 
 purpose, and lor employing the poor ot the parish ; and it is 
 thereby enacted, that all such buildings, lands, and heredita- 
 ments which shall be purchased, hired, or taken on lease for 
 the purposes of the act, shall be conveyed demised and assured 
 to them and their successors ; and that they shall hold the 
 same, and all other buildings, lands, and hereditaments 
 belonging to the parish, as a body corporate, in behalf of the 
 parish. Upon the construction of this act, see Woodcock v. 
 Gibson, 4 Bar7i. Sf Cress. 462. Doe v. Heley, 10 lb. 884. 
 Doe V. Terry, Adol. ^' Ell. 274. Ex parte Annesly, 2 Yo. 
 ^ Col. 350. See also SSfQ TV. 4, c. 69, s. 3, whereby overseers 
 and guardians of the poor are empowered to sell work-houses, 
 &c. See also 54-6 Vict. c. 18.] 
 
 Crown Lands and Hereditary Revenues of the King, 1 G. 4, LandRevenues. 
 c. 1, A.D. 1820. — The greatest part of the land revenues of 
 the Crown have been from time to time granted away by 
 sucessive Kings to lords of manors and others, who now for 
 the most part hold the prerogative rights of estrays, waifs, 
 felons' goods, deodands, &c. as their own absolute property. 
 These grants having greatly impoverished the patrimony of 
 the Crown, an act was passed in the reign of Queen Anne, 
 whereby it was declared that all future grants or leases by the 
 Crown for any longer term than thirty-one years or three 
 lives should be void. 1 Ami. stat. 1, c. 7, amended and 
 continued by the 34 G. 3, c. 75. At the commencement of 
 the reign of G. 3, the hereditary revenues of the Crown 
 arising from renewal, fines, unclaimed estrays, escheats from 
 manors held in capite, and such like, being very uncertain, 
 with all other hereditary revenues, were given up by his 
 Majesty to the aggregate funds ; and in lieu thereof his Majesty 
 received 800,000/. a-year for the maintenance of his civil 
 list. 1 G. 3, c. 1. By subsequent acts, 34 G. 3, c. 75. 
 48 G. 3, r. 73. 52 G. 3, c. 161, these hereditary revenues
 
 502 
 
 OF STATUTES. 
 
 Land Revenues, were put under the management of commissioners styled 
 *' Commissioners of his Majesty's Woods, Forests, and Land 
 Revenues." This arrangement was confirmed by stat. 1 G. 4, 
 c. 1. 
 
 Escheats to 
 Crown. 
 
 The above-mentioned statute of Anne (1, c. 7,) having 
 declared the King's grants void, there was no mode of re- 
 granting lands held immediately of the Crown to the families 
 of persons dying without heirs but by act of Parliament. This 
 being found inconvenient, the statute of 39 S^ 40 G. 3, c. 88, 
 was passed, by which, after reciting that divers lands, tene- 
 ments, and hereditaments, as well freehold as copyhold, had 
 escheated, and might escheat to his Majesty, his heirs and 
 successors, in right of his Crown, for want of heirs of the 
 persons last seised, it is declared, that it shall be lawful for his 
 Majesty, by warrant under his sign manual, to direct the 
 trusts of any lands so escheated to be performed, and to make 
 any grants of lands so escheated to any trustee for the exe- 
 cution of the trusts, and to make any grants of lands escheated 
 not subject to trusts to any person or persons, either for the 
 purpose of restoring the same to the family of the person 
 whose estate the same had been, or of rewarding any person 
 making discovery of any such escheat, as to his Majesty, his 
 heirs or successors, should seem fit ; et vide, ante, p. 494. 
 
 Ejectment — 
 Landlord and 
 Tenant. 
 
 Stat, improving Remedy by Ejectment as between Landlord 
 and Tenant, 1 G. 4, c. 87, A. D. 1820. — This statute enacts, 
 that where the term or interest of any tenant, now or hereafter 
 holding under a lease or agreement in writing any lands, 
 tenements, or hereditaments, for any term or number of years 
 certain, or from year to year, shall have expired or been 
 determined, either by the landlord or tenant, by regular notice 
 to quit, and such tenant, or any one holding or claiming by 
 or under him, shall refuse to deliver up possession accordingly, 
 after lawful demand in writing, made and signed by the 
 landlord or his agent, and served personally upon or left at 
 the dwelling-house or usual place of abode of such tenant or
 
 OF STATUTES. 503 
 
 person, and the landlord shall thereupon proceed by action of 
 ejectment for recovery of possession : it shall be lawful for 
 him, at the foot of the declaration, to address a note to such 
 person or tenant, requiring him " to appear in the Court 
 wherein the action is commenced on the first day of the then 
 next Term, there to be made defendant, and find bail pursuant 
 to the act ;" and upon the appearance or non-appearance of 
 the tenant at the day prescribed, to move for a rule, why he 
 should not undertake to give the plaintiff a judgment as of Ejntmoit. 
 the Term preceding, in case a verdict should go against him at 
 the time of trial, and why he should not enter into a recogni- 
 zance by himself, and two sureties in a reasonable sum con- 
 ditioned to pay the costs and damages of the action ; and if 
 the tenant shall not conform thereto, then that judgment shall 
 be for the landlord to recover possession in such ejectment 
 immediately. 
 
 It will be recollected that Hilary and Trinity Terms are 
 the only two Terms in which the judges go the circuits for the 
 trial of causes wherein issues have been previously joined : 
 hence these Terms are called issuable Terms, and ejectments 
 can be tried only at these stated times. The above statute, 
 by giving remedy in the next Term, much facilitates the pro- 
 cess of ejectment as between landlord and tenant. On the 
 construction of this act it has been decided, that tenants 
 from year to year are not within it. Doe. depn. Bradford 
 v. Roe, 5 Barn. 4' Aid. 770. See also Doe dem. Phillips v. 
 Roe, 1 Doiv. ^' Ry. 433. Anon. 1 lb. 435. Doe dem. An- 
 glesea v. Roe, 2 Dow. ^^ Ry. 565. The Irish acts of similar 
 tendency are the 58 G. 3, c. 39, 1818. 1 (7.4, c, 41. [See 
 I 4- 2 Vict. c. 74.] 
 
 1 ^ 2 C. 4, c. 15. 1 4- 2 (7. 4, c. 114, repealed by 6 G. 4, Lunatics. 
 c. 75, and the latter by the 1 JV. 4, c. 60, infra, et vide 2 Walk. 
 Cop. 84, 85, 4th ed. 
 
 Insolvent Debtors' Act, 3 G. 4, c. 123, A.D. 1822, amended lusolcenu. 
 by 5 G. 4, c. 61, amended by 7 G. 4, c. 57. 11 G. 4, and
 
 504 OF STATUTES. 
 
 lasolvenu. 1 W. 4, c. 38. [2 W. 4, c. 44. 5 4- 6 Fic^ c. 116. 74-8 
 
 Fec^. c. 96. By the last of these statutes (sect. 4,) all the 
 property of the insolvent is vested in the assignees for the 
 time being by virtue of their appointment, who are to be 
 deemed officers of the Court, in which the insolvent's petition 
 shall be filed, but the property of the insolvent is to be 
 possessed and received by the oflScial assignee alone, unless 
 otherwise directed by the commissioner.] 
 
 Bankrupts. [Stat, of Bankruptcy, 6 G. 4, c. 16, A.D, 1825, amended by 
 
 \ ^ 2 W. A, c. 56 {20th Oct. 1831) which established the 
 Court of Bankruptcy, and by sections 25 and 26 of the latter 
 act it is enacted, that the bankrupt's real and personal estate 
 shall, without any conveyance, vest in the assignees for the 
 time being, by virtue of their appointment; until appoint- 
 ment of assignees the official assignee is enabled to act as 
 sole assignee of the bankrupt's estate and effects. See also 
 sections 16 and 27. The statute for abolishing fines and 
 recoveries, 3^4 W. A, c. 74, s. 55, expressly repeals the 
 above statute, 6 G. 4, s. 65, so far as relates to estates tail ; 
 and, to that extent, also virtually repeals the 1 4" 2 W. A, 
 c. 5Q, s. 26 ; and by s. 56, empowers any commissioner acting 
 in SLXiy Jlat, after the 31st December, 1833, by deed enrolled 
 within six months after its execution, to dispose of the lands 
 of any bankrupt tenant in tail to any purchaser for the benefit 
 of his creditors, and to create by such disposition as large an 
 estate as the bankrupt himself could have done under the act. 
 Amended by 2 ^ 3 JV. A, c. IIA. 3 ^ A lb. c. 47. 5 S)- 6 lb. 
 c. 29. 24-3 Vict. c. 11, and 5 4- 6 lb. c. 122 : and see ch. 
 Gift, in notis,^ 
 
 Pardons. Pardons, 6 G. A, c. 25 {20th May, 1825.) — By this statute 
 
 a pardon for any felony granted on condition of transportation, 
 imprisonment, or other punishment, is declared to have the 
 same effect as a pardon under the Great Seal. Hence felons 
 whose punishments are thus commuted are rendered capable 
 of holding lands in future : but the lands and goods which
 
 OF STATUTES. 505 
 
 they possess at the time of conviction remain subject to 
 forfeiture as before. 4 Hawk. P. C. 856, 7th ed. 
 
 Currency, 6 G. 4, c. 79 (27th June, 1825) to commence Currency. 
 July, 1826. — This act regulates the law of tender, on which 
 subject see 2 Poic. Mortg. 937. 
 
 [Special Resignation Bonds, 9 G. 4, c. 94 (2?)thJuly, 1828.) Special Resig- 
 — Until the case of Fletcher v. Lord Sondes, decided on 
 appeal Dom. Proc. 3 Bing. 501, a very general impression 
 prevailed, that bonds and other assurances for securing the 
 resignation of ecclesiastical preferments in favour of specified 
 individuals were valid, although they were void for resignation 
 generally: that case, however, decided that for either purpose 
 such bonds, &c. were void. In consequence of the previous 
 misapprehension of the law, many bonds and other assurances 
 had been entered into for the purpose of special resignation, 
 and many presentations and inductions had been made ac- 
 cordingly. In order, therefore, to remedy the inconveniences 
 that might result from the above decision, the statute of the 
 7 ^ 8 G. 4, c. 25, was immediately passed : and subsequently 
 the 9 G. 4, c. 94, rendered valid bonds, covenants, and other 
 assurances made for the resignation of ecclesiastical pre- 
 ferments in favour of any one individual named in such 
 bond, &c., or to any one or two individuals therein named, 
 being within the degrees of relationship (by blood or marriage) 
 to the patron specified in the act.] 
 
 [1 W. 4, c. 40, A. D. 1830. — This act has made a very Rights nf Exc- 
 important alteration in the law respecting the rights of '^"^°^f '" ^"f'-''- 
 executors to the chattels real and other personal estate of 
 their testator, when not disposed of by the will. Before the 
 passing of this act, the rule of law was, that where a testator 
 made no disposition of the residue of his personal estate, but 
 appointed an executor, the right to such residue legally 
 devolved upon the executor. The Courts of equity, however, 
 interfered, and held him a trustee on behalf of the next of
 
 506 OF STATUTES. 
 
 kin, wherever, the intention of the testator was expressed, or 
 clearly inferible from the will that the testator intended to 
 impose upon the executor a duty and not a benefit ; where, 
 however, this intention could not be collected the executor's 
 legal right prevailed, and he took beneficially. The reader 
 will find the numerous classes of cases falling within, and 
 exceptions to this rule, collected in 2 Ropers Legacies, 24, 
 ed. 1828. The refined distinctions which have been adopted 
 by the Courts of equity to preclude the operation of the above 
 rule, have involved this branch of the law of legacies in much 
 intricacy. It is conceived that the act will tend in a great 
 measure to remedy this inconvenience, by establishing a rule 
 the exact converse of the old one. The act provides, that 
 the executors of all persons dying after the 1st of September, 
 1830, shall be considered as trustees of the undisposed 
 residue for the next of kin, unless it shall appear by the will 
 or codicil that the testator intended they should take 
 beneficially.] 
 
 Illusory Ap- [Statute respecting Illusory Appointments of Real and 
 
 pointments. Personal Estate, 1 W. 4, c. 46, (16^/* July, 1830.)— This is 
 noticed, supra, pp. 270, 271.] 
 
 For facilitathig [Statute 1 W. 4, c. 47, (same date) for consolidating and 
 the Recovery of amending the Laws for facilitating the Payment of Debts. — 
 Real Estate. This act repeals the 3 W. ^ M. c. 14, A. D. 1691, and 
 substitutes amended enactments. Prior to the passing of the 
 latter act, if a debtor died seised of real estate, and by his will 
 devised it away from his heir, the creditor could not follow 
 the land in the hands of a devisee, nor could he follow it in 
 the hands of a purchaser from the heir. The statute of 
 fV. ^ M. in part remedied the evil, by placing the devisee 
 in the same situation as the heir ; but it did not provide for 
 the event of there being no heir, giving a remedy only 
 against the devisee and the heir. The latter act also was 
 held only to apply to bond debts and covenants for the pay- 
 ment of sums certain, and not to damages for breaches of
 
 OF STATUTES. 507 
 
 covenant (7 East, 128,) or contracts under seal. The late 
 act 1 W. 4, c. Al, remedies both these defects ; it also repeals 
 the Trader's Assets Act, 47 G. 3, c. 74, substituting amended 
 enactments, and gives a remedy in that and the preceding 
 cases against the devisee of a devisee. By sect. 6, real 
 estate in the hands of a bona fide purchaser is protected, if 
 aliened before the action brought. By sect. 11, infant heirs 
 and devisees are compellable to convey as the Court of 
 Chancery shall direct. By sect. 12, persons having life or 
 other partial interests devised by the debtor are enabled, after 
 a decree for sale for payment of debts, to convey by direction 
 of the Court the fee simple to the purchaser, should there be 
 remainders or other executory gifts over, and the concurrence 
 of the persons entitled thereto cannot be obtained. See also 
 2 & 3 Vict. c. 68.] 
 
 [1 W. 4, c. 60, {July 23, 1830,) for amending the Laws Trustees and 
 respecting the Conveyances and Transfers of Estates and Mo'tyagees. 
 Funds vested in Trustees and Mortgagees, &c. — This statute 
 repeals the 7 Anne, c. 19. 4 G. 3, c. 16. 4 G. 2, c. 10. 
 1 ^ 2 {?. 4, c. 1 14. 36 G. 3, c. 90. 52 G. 3, c. 32. 52 G. 3, 
 c. 158. 57 G. 3, c. 39. \ 8^^ 2 G. 4, c. 15, and the 6 G. 4, 
 c. 74. It then provides " that where any person seised or 
 possessed of any lands upon any trust, or by way of mortgage, 
 shall be lunatic, it shall be lawful for the committee of the Lunatics. 
 estate of such person, by the direction of the Lord Chan- 
 cellor, &c., to convey such land, in the place of such trustee 
 or mortgagee, to such person, and in such manner as the Lord 
 Chancellor shall think proper ; and every such conveyance 
 shall be as effectual as if the trustee or mortgagee, being 
 lunatic had been of sane mind, and had made and executed 
 the same." 
 
 Sect. 4, provides for the transfer of stock standing in the 
 name of a lunatic trustee. 
 
 Sect. 5, enacts, that the Lord Chancellor, before inquisition 
 may appoint a person to convey or transfer. 
 
 Sect. 6, provides, " that where any person seised or pos-
 
 508 OF STATLTKS. 
 
 Infants. sessed of any land upon any trust, or by way of mortgage, 
 
 shall be under the age of twenty-one years, it shall be lawful 
 
 for such infant, by the direction of the Court of Chancery, to 
 
 convey the same to such person, and in such manner, as the 
 
 said Court shall think proper ; and every such conveyance 
 
 shall be as effectual as if the infant trustee or mortgagee had 
 
 been at the time of making or executing the same, of the age 
 
 of twenty-one years- 
 
 [Upon the Sect. 8 enacts, that when a trustee of real estate shall be 
 
 this^ection'see ^^^ ^^ the. jurisdiction of the Court, or it shall be uncertain, 
 
 Goddardin Re, where there were several trustees, which of them was the 
 
 Stanley in Re, survivor, Or it shall be uncertam whether the trustee last 
 
 ^r, J ■' r> known to have been seised, be alive or dead, or, if known to 
 
 JJeardon in Re, ' ' ' 
 
 3 Myl. §• K be dead, it shall not be known who is his heir ; or if any 
 
 ex parte, 6 Sim. trustee SO seiscd, or the heir shall neglect or refuse, for 
 
 645. Whitton, twenty-eight days after a proper deed of conveyance shall 
 
 Keene, 278.] have been tendered for his execution by or by an agent of the 
 
 person entitled to require the same, then the Court of 
 
 Chancery may direct any person it may think proper in the 
 
 place of the trustee or heir to convey the same, and to be as 
 
 effectual as if the trustee or his heir had conveyed. [See 
 
 \ S)- 2 Vict. c. 69, explaining and extending the above clause.] 
 
 Sect. 9 is a similar provision respecting the assignment 
 
 or surrender of leaseholds, and sect. 10, respecting stocks or 
 
 funds. 
 
 Sect. 14 provides, that where the person to whom mort- 
 gage money shall be payable shall be an infant, the money 
 may be paid into the Bank in the name and with the privity 
 of the accountant general, &c., to the credit of the cause 
 then depending (if any), and if not, to the credit of the 
 infant, and the receipt of the cashier of the Bank to be a 
 discharge. 
 
 Sect. 15 extends the provisions of the act to a trustee 
 having also an interest. 
 
 Sect. 16 makes representatives of vendors and nominal 
 purchasers trustees within the act, afler a decree for specific 
 performance in the one case, and for declaring the nominal 
 purchaser a trustee in the other.
 
 OF STATUTES. 509 
 
 Sect. 17 empowers persons taking an estate for life or 
 other limited interest by the will of a vendor dying before 
 the completion of the purchase, to convey by direction of the 
 Court, the fee simple, where the concurrence cannot be 
 obtained of the persons to whom remainders, &c. are limited. 
 
 Sect. 18 extends the provisions of the act to other con- 
 structive and resulting trusts, when declared by a decree. 
 
 By sect. 19 husbands of female trustees are to be con- 
 sidered trustees within the act. 
 
 The remaining clauses chiefly relate to the proceedings in 
 the Courts of Chancery, and to the extension of the pro- 
 visions of the act to other parts of the King's dominions 
 (except Scotland), and to other Courts of equitable jurisdic- 
 tion. See also stat. A ^ 5 W. 4, c. 23, s. 2, ^ Whitton 
 Ex parte J Keene, 278.] 
 
 [] W. 4, c. 65, (23 July, 1830), for consolidating and Infants, Fanes 
 amending Laws relating to Property belonging to Infants, Luimtks! kc. 
 Femes Covert, Lunatics, and Persons of Unsound Mind, &c. — 
 Chapter 60 relates to their interests as trustees or mortgagees : 
 this act applies to property in which they are beneficially 
 interested ; it repeals 9 G. 1, c. 29. 29 (?. 2, c. 31. 11 G. 3, 
 c. 20. 1 1 Ann. (I) c. 3. 43 G. 3, c. 75. 47 G. 3, c. 8, s. 2. 
 59 G. 3, c. 80. 6 G. 4, c. 74. 9 G. 4, c. 78. 
 
 Sect. 3 enacts that infants, femes covert, and lunatics, 
 in their proper persons, or being infants, by guardian, femes 
 covert by attorney, or lunatics by committee, may be admitted 
 to copyholds. 
 
 Sect. 4 authorizes femes covert to appoint attorneys ac- 
 cordingly. 
 
 Sect. 5 authorizes the Lord Chancellor to appoint an 
 attorney for the above purposes. 
 
 Sects. 6, 7, 8, 9, 10 provide for the recovery of fines. 
 
 Sect. 1 1 enables persons not being femes covert and femes 
 covert (being secretly examined) to appoint attorneys for the 
 purpose of surrendering copyholds of which customary reco- 
 veries are intended to be suffered.
 
 510 OF STATUTES. 
 
 Infn7its, Femes Sect. 12 authorizes guardians of minors and femes covert, 
 
 Lunatic7\c ^'^ application to the Court of Chancery, and to the Courts of 
 
 Equity in Chester, Lancaster, Durham, and to the Courts of 
 
 Great Session in Wales, to surrender renewable leaseholds 
 
 and take new leases. 
 
 Sect. 13 is a similar provision for committees of lunatics. 
 
 Sect. 15 declares, that the new leases shall be to the same 
 uses and upon the same trusts as the leases surrendered. 
 
 Sects. 16 and 17 are noticed in the Chapter on Infants, 
 note, supra, p. 423. 
 
 Sect. 18 enacts, that where any person who ought to renew 
 is out of the Court's jurisdiction, the Court may order such 
 person as it may think proper to accept a surrender of the 
 old, and grant a new lease. 
 
 Sect. 19 authorizes committees of lunatics, by direction of 
 the Lord Chancellor, to accept surrenders and grant new leases. 
 
 Sects. 20 and 21 provide for the payment of fines and 
 premiums. 
 
 Sect. 23 enables committees of lunatics having life or other 
 limited interests with powers to grant leases, to execute the 
 powers under the direction of the Lord Chancellor. 
 
 Sect. 24 authorizes committees of lunatics, who are seised 
 in fee, in tail, or who have absolute interests in leaseholds, to 
 grant leases or underleases. 
 
 Sect. 27 authorizes committees, by direction of the Lord 
 Chancellor, to sell, mortgage, let, divide, exchange, or other- 
 wise dispose of the lunatic's land, in pursuance of any contract 
 by the lunatic after a decree for specific performance. 
 
 Sect. 28 authorizes the sale or mortgage of lunatic's lands 
 for the payment of his debts, or for discharge of any incum- 
 brances on his estates, or the costs of the commission. 
 Surplus monies to be real estates, sect. 29. 
 
 Sect. 32 authorizes the Court of Chancery, &c. to apply 
 the dividends of stocks belonging to infants for their main- 
 tenance. 
 
 The remaining clauses are in a great measure subsidiary to 
 the preceding.]
 
 OF STATUTE?. 51 1 
 
 [1 ^'- 2 W. 4, c. 38, (1 5th October, 1831), authorizing the nuUding of 
 building of churches and chapels in parishes where the popula- Churches and 
 tion amounts to 2000, and the churches do not afford accom- populous dis- 
 modation, or where 300 persons reside more than two miles 
 from the church ; the right of nomination to be in the persons 
 building and endowing according to the conditions of the act; 
 and the churches and chapels to be perpetual curacies. Pro- 
 perty conveyed for the site under the act not to be subject to 
 question after five years. Explained 2 ^3 W. 4, c. 61. 
 
 \Sf 2 W. A, c. 56, {20th October, 1831), by which the Court of 
 Court of Bankruptcy was established. It is amended and eJaW/Xjf 
 explained by the 2^-3 W. 4, c. 114. The sections 25, 26, 
 and 27, relate to the vesting of the real and personal estate 
 of the bankrupt in the assignees. Vide supra, pp. 124 — 126. 
 See also 5^6 Vict. c. 122. 
 
 2^3 W.A,c. 71, {ist August, 1832), an act for shortening Prescription. 
 the time of prescription in certain cases, such as rights of 
 common, way, water, use of lights, &c. 
 
 2^3 W. 4, c. 100, (9th August, 1832), an act for shortening Shortening 
 
 ,1 ,. • J • 1 • c J J • J- i- time of claims 
 
 the time required in claims of modus decimandi, or exemption f,f(ifjlgg g.^. 
 from or discharge of tithe. 
 
 3^-4 TV. 4, c. 27, (2ith Jidy, 1833). This statute limits Limitation of 
 the remedies for the recovery of lands, or rents to the period "'^{^ons a 
 
 •' ^ sutls relating to 
 
 of twenty years after the right of the claimant, or the person real property. 
 
 through whom he claims shall have first accrued («. 2). 1 Vo. 
 
 ^' Col. 453. 3 Bing. A^. S. 544. 1 1 Ad. 4- El. 1008. See also 
 
 7 IV. 4, and 1 Vict. c. 28. The statute then defines {s. 3,) 
 
 when the right shall have accrued ; as to estates in possession ; 
 
 as to future estates ; and as to cases of forfeiture. 
 
 As to estates in possession. 1 st, When the claimant or 
 person through whom he claims became dispossessed or dis- 
 continued possession, or receipt of rent, the right accrued 
 upon such dispossession or discontinuance of possession ;
 
 51*2 OF STATUTES. 
 
 2 Bing. N. S. 505. 3 Beav. 308. 2nd, When the claimant 
 claims the estate or interest of some deceased person, who 
 continued in possession or receipt until his decease, and who 
 was the last person entitled to and in possession of such estate 
 the right first accrued from such death ; 3rd, When the 
 claimant claims in respect of an estate, &c. in possession 
 conveyed (otherwise than by will) to such claimant, &c., by 
 a person in possession or in receipt, &c., and no person entitled 
 under such instrument of assurance, shall have been in pos- 
 session or receipt, the right first accrued at the time when 
 such claimant, &c. became entitled to the possession, &c. by 
 virtue of such instrument. 
 
 As to future interests. When the estate, &c. claimed shall 
 have been an estate, &c. in reversion or remainder, or other 
 future estate, &c., and no person shall have obtained posses- 
 sion, &c., the right first accrued when such estate, &c. became 
 an estate, &c. in possession. 
 
 As to cases of forfeiture or breach of co?idition. When the 
 claimant, &c. shall have become entitled in respect of any 
 fqrfeiture or breach of condition, the right first accrued when 
 the forfeiture occurred or the condition was broken. 
 
 Sect. 4. Provides that where advantage of forfeiture is not 
 taken by remainderman, he shall have a new right when his 
 estate comes into possession. 
 
 Sect. 5, contains a similar provision in favour of the rever- 
 sioner, notwithstanding he shall have been in possession or 
 receipt, &c. previously to the creation of the prior estate 
 determined. 
 
 Sect. 6, provides that the administrator of a deceased per- 
 son shall be deemed to claim as if there had been no interval 
 between the death and grant of administration. 
 
 Sects. 7, 8, and 9, prescribe when the rights of parties en- 
 titled subject to estates at will, tenancies from year to year, 
 and leases in writing reserving rent shall accrue, 8 Jurist, 
 399. 6 lb. 266. 
 
 Sec. 10, provides that mere entry shall not be deemed a 
 possession within the meaning of the act.
 
 OP STATUTES. 5\3 
 
 Sect. 11, declares that no right of entry, distress or action 
 shall be preserved by continual claim. 
 
 Sect. 12, enacts that the possession of one or more coparce- 
 ners, joint-tenants, or tenants in common shall not be deemed 
 the possession of the rest. 
 
 Sect. 13, declares that the possession of a younger brother, 
 or other relation of the heir, shall not be deemed the posses- 
 sion of such heir. 
 
 Sect. 14, provides that a written acknowledgment of title 
 to the person entitled, or to his agent signed by the party in 
 possession or receipt, making such acknowledgment, shall be 
 equivalent to the possession or receipt of the party to whom 
 such acknowledgment shall be made ; whose right shall 
 accrue from the time of such acknowledgment, or, if more 
 than one, from the last of such acknowledgments. 6 Mee, Sf 
 Wei 295. 
 
 Sect. 15, enlarges the period of limitation for five years 
 from the passing of the act, {2^th July, 1833), where^ the 
 possession was not adverse at that day. See 5 Adol. Sf Ellis, 
 291, 532, 3 Queen's Bench Rep. 679. 3 Yo. Sf C. 617. . 
 
 Sect. 16, provides that in cases of disabilities of infancy, 
 coverture, idiotcy, lunacy, unsoundness of mind, or absence 
 beyond seas, at the time when a right first accrues, the further 
 period of ten years shall be allowed from the removal of the 
 disability, or from the death of the party under disability 
 (which shall first happen). 
 
 Sect. 17, provides that no action shall be brought by any 
 person under disability at the time his right first accrued, or 
 by any person claiming through him, but within forty years 
 from the time at which the right accrued ; although the person 
 under disability shall have remained under one or more 
 disabilities during the entire period of forty years, or al- 
 though the term of ten years shall not have expired from the 
 time at which he shall have ceased to be under disability, or 
 have died. 3 Add. % El. 63. 
 
 Sect. 18, declares that no further time shall be allowed for 
 a succession of disabilities. 
 
 L L
 
 5 14 OF STATUTES. 
 
 Sect. 19, declares that no part of Great Britain and Ireland, 
 or the adjacent islands, being part of the King's dominions, 
 shall be deemed beyond seas. 3 Vo. Sf C. 617. 
 
 Sect. 20 provides for the barring of concurrent rights, by 
 enacting that when any person entitled to an estate in pos- 
 session, shall have been barred by the determination of the 
 period of limitation prescribed by the act, and, at any time 
 during that period, shall have been entitled to any other 
 estate or interest in reversion, remainder or otherwise, such 
 latter estate or interest shall be barred also, unless, in the 
 mean time, the land, &c. shall have been recovered in respect 
 of some estate or interest limited to take effect after or in 
 defeazance of such estate or interest in possession. 
 
 Sect. 21 provides that where a tenant in tail is barred, 
 those in remainder whom he might have barred shall be 
 barred also. 
 
 Sect. 22, and, by this section, adverse possession against 
 tenant in tail, runs on against those in remainder whom he 
 might have barred. 
 
 Sect. 23 enacts, that when a tenant in tail of any land, &e. 
 shall have made an assurance thereof which shall not bar 
 those in remainder, and any person shall, by virtue of such 
 assurance, at the time of the execution thereof, or at any time 
 afterwards be in possession or receipt, &c., and the same 
 person, or any other person (other than some person entitled 
 to such possession, &c. in respect of an estate which shall 
 have taken effect after or in defeazance of the estate tail) 
 shall continue or be in possession, &c. for twenty years next 
 after the commencement of the time at which such assurance, 
 if it had been executed by such tenant in tail, or the per- 
 son who would have been entitled to his estate tail, if such 
 assurance had not been executed, would, without the consent 
 of any other person, have operated to bar such estate or 
 estates as aforesaid, then at the expiration of such twenty 
 years, such assurance shall be and be deemed to have been 
 effectual as against all those in remainder. 
 
 Sect. 24 fixes the time of limitation to suits in equity with
 
 OF STATUTES. 
 
 reference to the periods of legal limitation prescribed by the 
 act. 
 
 Sect. 25 provides, that in case of express trust, the right 
 shall not be deemed to have accrued until a conveyance shall 
 have been executed to a purchaser for value. 12 Sim. 472. 
 
 Sect. 26 enacts, that in case of concealed fraud, the right 
 of the person to recover shall be deemed to have first accrued 
 at the time when such fraud shall, or, with reasonable dili- 
 gence, might have been first known or discovered, but not to 
 the prejudice of any purchaser honafide for value. 
 
 Sect. 27 saves the jurisdiction of equity on the ground of 
 acquiescence or otherwise. 
 
 Sect. 28 fixes twenty years as the period of limitation as 
 between the mortgagee in possession and the mortgagor : and 
 is noticed in a former page, 232. 
 
 Sect. 29 fixes the time of limitation of actions and suits by 
 Spiritual and Eleemosynary Corporations Sole to the follow- 
 ing periods, from the time at which their right first accrued 
 (namely) the period during which two persons in succession 
 shall have held the office or benefice, in respect whereof the 
 land or rent shall be claimed, and six years after a third 
 person shall have been appointed thereto, if the time of such 
 two incumbencies and six years together shall amount to sixty 
 years ; and if such time shall not amount to sixty years, then 
 during such further term as will make up that full period. 
 
 Sect. 30, this and the two following sections relate to 
 advowsons. This section enacts that no advowson shall be 
 recovered, but within three successive incumbencies adverse 
 to the right of the claimant : if such three incumbencies shall 
 not make up the term of sixty years, then after the expiration 
 of such further term, as will together with the times of such 
 three incumbencies make up the full period of sixty years. 
 
 Sect. 31, provides that incumbencies after lapse shall be 
 reckoned within the above period, but no incumbencies after 
 promotion to bishoprics. 
 
 Sect. 32, enacts that persons claiming right to present, &c. 
 by virtue of an estate which the owner of an estate tail in the 
 L L 2 
 
 515
 
 516 OF STATUTES. 
 
 advowson might have barred, shall be deemed a person 
 claiming through the tenant in tail. 
 
 Sect. 33, provides that no advowson shall be recovered 
 under any circumstances after an adverse possession of one 
 hundred years. 
 
 Sect. 34, declares that at the end of the period of limitation 
 prescribed by the act, the right of any party out of possession 
 shall be extinguished. 
 
 Sect. 35, constitutes receipt of rent receipt of profits, for 
 the purposes of the act. 
 
 Sect. 36, abolishes, after the 31st day of December 1834, 
 all real and mixed actions (except a writ of right of dower, 
 a writ of dower unde nihil habet, a quare impedit, or an 
 ejectment.) 
 
 Sect. 37, preserves the right in certain cases to bring real 
 actions until the 1st June, 1835. 
 
 Sect. 38, saves the rights of persons entitled to bring real 
 actions only at the commencement of the act. 
 
 Sect. 39, declares that after the 31st December 1833, no 
 descent cast, discontinuance, or warranty shall bar a«y right 
 of entry or action for the recovery of land. 
 
 Sect. 40, enacts that, from the last above mentioned day, 
 money charged upon land and legacies shall be deemed 
 satisfied after the period of twenty years, if there be neither 
 interest paid nor acknowledgment in writing made in the mean 
 time. (2 Myl. ^ Cr. 309. 12 Sim. 26.) 
 
 Sect. 4 1 , enacts that no arrears of dower shall be recovered 
 for more than six years. 
 
 Sect. 42, contains a similar provision respecting arrears of 
 rent and interest in respect of sums charged upon or payable 
 out of land or of interest, &c., with an exception where a prior 
 mortgagee or incumbrancer was in possession or receipt of the 
 rents. [12 Ad. ^ El. 536. 2 Bing. N. S. 679. 3 Ad. <^ El. 
 884, 2 Hare, 326. 3 Beav. 22, 86.] 
 
 Sect. 43, extends the act to Spiritual Courts. 
 
 Sect. 44, excludes from the operation of the act Scotland, 
 and, as to advowsons, Ireland.
 
 OF STATUTES. 517 
 
 [34-4 fV. 4, c. 42, (I9th August, 1833,) for the further 
 amendment of the law, and the advancement of justice. 
 Section 3, limits actions on specialties, (2 Bing. N. S. 674. 
 2 Hare, 326.) ] 
 
 3 ^ 4 ^. 4, c. 74, {2.Sth August, 1833). Many of the provi- Abolition of 
 sions of this important statute have been noticed in the course recoveries in 
 of the work, supra, pp. 108 — 133. We shall here onlv England, and 
 
 * substitution of 
 
 refer to cases which have occurred upon some of the sections, more simple 
 (ss. 7—11, 1 Bing. N. S. 355. 2 lb. 626. 3 lb. 297. "'''^" "/ 
 
 ^ ' '' .WW . ^ , . assurance^. 
 
 4 75.633.) {s.32. II Sim. 508.) (s. 33. 3 Mgl. 4- K. 
 245. 247. 249, 250. 3 Mt/l. Sf Cr. 266.) (s. 48. 3 Mgl. Sf 
 ir. 245— 250. 2 Mr/L S^ Cr. 112.) (s. 53. 5 Do lol. 273.) 
 (s. 77. 5 Bing. 226. 7 Doiol. 258.) (s. 81. 3 Bing. N. S. 
 304.) {s. 84. 1 Bing. N. S. 265. 1 Scott, 80. 3 Dowl. 
 P. C. 112.) (s. 85. 2 5m^. N. S. 268. 5 76. 226.) 
 
 c. 87, (28tk August, 1833.) For remedying For remedying 
 
 A defect in titles to lands, &c. allotted, sold, divided, or ff^^Xiihtted 
 
 exchanged under acts of inclosure, in consequence of the award binder indosure 
 
 not having been enrolled or not having been enrolled within 
 
 the time limited by the several acts ; and for authorizing the 
 
 appointment of new commissioners in certain cases, where the 
 
 same shall have been omitted. The statute (s. 1,) renders all 
 
 awards already made, but not enrolled, from the execution 
 
 thereof, as valid as if enrolled within the time limited by the 
 
 act. 
 
 c. 104, (29fk August,) renders freehold and Real estate 
 
 copyhold estates in all cases assets for the payment of simple ^f^^^^^^setsfor 
 
 '^"' ' •' '^ simple and con- 
 
 contract, or specialty debts. tract debts. 
 c. 105, (29/A August,) for amending the law Dower. 
 
 relating to dower. Its provisions are fully noticed in the 
 chapter of Dower, supra, p. 85. 
 
 c. 106, {29th August,) for amending the law inheritance.
 
 518 
 
 OF STATUTES. 
 
 of inheritance. The provisions of this act are fully noticed in 
 the chapter on the law of inheritance, supra, p. 451. 
 
 Apportionment 4 ^ 5 fV. 4, c. 22, (16/^ June, 1834,) to amend the statute 
 of rents, ^c. jj Q £, c. 19, respecting the apportionment of rents, an- 
 nuities, and other periodical payments. It is noticed, supra, 
 pp. 284—286. 
 
 Escheat and p- 23, {2*1 th Juiie,) this Statute amends the law 
 
 forfeiture. relating to the escheat and forfeiture of real and personal estate 
 
 held in trust. Where a trustee or mortgagee dies without 
 heir, the Court of Chancery, by s. 2, is empowered to appoint 
 a person to convey in the manner provided by the 11 G. 4, 
 and 1 W. 4, c, 60. Section 3 enacts, that real or personal 
 estate vested in a trustee or mortgagee shall not escheat, or 
 be forfeited by reason of the attainder of such trustee or 
 mortgagee. 
 
 Exchange oj 
 Imids in com- 
 mon fields. 
 
 Abolition of 
 Jines and re- 
 coveries in 
 Ireland. 
 
 c. 30, {25tk July^ to facilitate the exchange 
 
 of lands lying in common fields. See 3^4 Vict. c. 31. 
 
 c. 92, (15;^ August), This act for the abo- 
 
 lition of fines and recoveries in Ireland, and for the substitu- 
 tion of more simple modes of assurance, is, with the omission 
 of some clauses inapplicable to lands in Ireland and with a 
 very few exceptions, a copy of the statute 3 ^^ 4 W. 4, c. 74, 
 and is noticed in a former page, 133. 
 
 Conveyance of 
 workhouses 
 and other 
 parish property. 
 
 54-6 W. 4, c. 69, {9th September, 1835.) To facilitate the 
 conveyance of workhouses and other property of parishes and 
 of incorporations or unions of parishes. The act {s. 2,) gives 
 power to the overseers and guardians of the poor to sell, 
 exchange, let, or otherwise dispose of any parish lands and 
 property, and to apply the money in the purchase, building, or 
 providing of a workhouse or otherwise, for the permanent 
 advantage of the parish as the poor law commissioners may 
 approve.
 
 OF STATUTES. 519 
 
 6 4" 7 TV. 4, c. 20, (2lst June, 1836.) To impose certain Renewal of 
 restrictions on the renewal of leases by ecclesiastical persons. . *" ^^, "*^'*" 
 
 •' '^ siasfical per' 
 
 Statute. 
 
 c. 64, (I3th August.) Explaining the last Explaining 
 
 last statute. 
 
 C. 71, (I3th August.) For the commutation Commutation 
 
 of tithes in England and Wales, amended by the 7 W. 4, and 
 1 Vict. c. 69, and see 1 4- 2 Vict. c. 64. 
 
 c. 86, (17^/t August.) For the registering of Registry oj 
 
 births, deaths, and marriages in England. „"^' *' ''°' *• 
 
 7 W. 4, and 1 Vict. c. 22, (30^^ June.) To explain the Explaining 
 
 preceding act of registry. See 3 ^ 4 Vict. c. 92. '"'^ ''°'"''- 
 
 c. 26, {Zrd July.) For the amend- Amendment 01 
 
 ment of the laws respecting wills: this act is discussed in the ^"-^ ofwiih. 
 chapter on Devise, supra, 364 — 387, see also p. 272. 
 
 c. 28, {3rd July.) To amend the Amendment 01 
 
 3 4" 4 W. 4, c. 27, enacting that mortgages shall be within "^ f J* "'• '*• 
 the definition of " land" in the amended act, and that mort- 
 gagees, or those claiming under them may recover land in 
 mortgage to them within twenty years after the last payment 
 of principal or interest. 
 
 c. 69, {l^th July.) To amend the Amendment oj 
 
 above act of 6 ^ 7 W. A, c. 71, for the commutation of tithes \ ^^^ '^' ^' 
 in England and Wales. 
 
 C. 80, (17th July.) Exempting Exemption oj 
 
 certain bills of exchange and promissory notes from the '^exlhan!'l\7 
 operation of the usury laws. from usury 
 
 laws. 
 
 1 4" 2 Vict. c. 31, {Ath July, 1838.) To facilitate the sale Sak of church 
 of church patronage belonging to municipal corporations. ^mwT°^ni "'^ 
 
 corporations.
 
 520 
 
 OF STATUTES. 
 
 Qualification I S; 2 Vict. c. 48, (21th July.) For amending laws 
 
 "parii^ment"'^ relating to qualifications of members of Parliament. 
 
 Merger of 
 tithes. 
 
 c. 64, (4<A Aligns f.) To facilitate the merger 
 
 of tithes in land: see also 2 Sj- S Vict. c. 62, (17 th August, 
 1839,) SSf4 lb. c. 15, (4th June, 1840,) 5 ^ 6 lb. c. 54, 
 (2>0th July, 1842.) 
 
 Estates vested c. 69, (4th August.) For conveyance of estates 
 
 mortgages' vested in heirs and devisees of mortgagees, supra, page 508. 
 
 For recovering c. 74, (10th August.) To facilitate the 
 
 dTtlnlinatimr ^ecovery of possession of tenements after due determination 
 of tenancy. of the tenancy. 
 
 Legal proceed- 
 ings bg joint- 
 stock banking 
 companies and 
 other co-part, 
 nerships. 
 
 c. 96, (14ith August.) To amend the law 
 
 relative to legal proceedings by joint-stock banking com- 
 panies and other co-partnerships against their own members ; 
 extended by 3 4- 4 Vict. c. Ill, (llth August, 1840) ; made 
 perpetual 5^6 Vict. c. 85, (5th August, 1842): see also 7 4" 8 
 Vict. c. 110, and c. Ill, (5th September, 1844). 
 
 Church Build- ~"~ 
 
 ing Acts. Building Acts. 
 
 c. 107, (\5th August.) To amend the Church 
 
 Remedies 
 against debtors; 
 Judgments a 
 charge on legal 
 and equitable 
 real estate, Sfc. 
 stock in the 
 funds, and 
 registering 
 judgments. 
 
 c. 110, (16th August.) For extending the 
 
 remedies of creditors against the property of debtors : 13th 
 section makes judgments a charge on real estate, whether legal 
 or equitable, or over which the debtor has a power of appoint- 
 ment : 14th section provides for charging stock, &c., in the 
 public funds, &c., s. 19 for registering judgments : see also 
 34-4 Vict. c. 82, (7th August, 1840.) 
 
 Protection of 
 purchasers 
 against judg- 
 ments, Crown 
 debts, Sfc. 
 
 243 Vict. c. II, (4ih June, 1839.) To protect pur- 
 chasers against judgments, crown debts, lis pendens, 'and Jiats 
 in bankruptcy.
 
 OF STATUTES. 521 
 
 2 4" 3 Viet. c. 18, (\st July.) To enable archbishops and Archbishops, 
 bishops, to raise money on mortgage of their sees for building to.raise'nMmv 
 or providing fit houses for their residence. fi>r providing 
 
 fit residences. 
 
 c. 29, {\9th July.) For the further protection Protection of 
 
 of purchasers, without notice, against prior acts of bankruptcy. ^agai7is7acts of 
 
 bankruptcy. 
 
 c. 37, {29th July.) For amending and ex- Repeal of the 
 
 tending the 7 fV. 4, and 1 Vict. c. 80, which exempts certain ^n'^certain^cases 
 bills of exchange and promissory notes from the usury laws. ^'^'* ^ ^^- 
 
 \ change, Sfc. and 
 
 By these amendments, it would seem, that agreements for the agreements for 
 loan or forbearance of money above 10/., so that they do not ^nal'moneriv 
 relate to real estate, or any interest therein, are also exempted 
 from the operation of the usury laws ; consequently any rate 
 of interest may be taken on securities extending only to 
 personalty. Extended by 3 4- 4 Vict. c. 83, and 6 ^ 7 lb. 
 c, 45, to June, 1846. 
 
 so7ial property. 
 
 c. 39, (17^^ August.) To amend 1^2 Vict. Relief of imol- 
 
 c. 1 10, for amending laws for relief of insolvent debtors, also 
 5^6 Vict. c. 116, {\2th August, 1842.) 
 
 vent debtors. 
 
 c. 60, {17 th August.) To explain and extend For payment of 
 
 11 G.^, and 1 fV. 4, c. 47, for consolidating and amending J^^eXlf 
 laws for facilitating the payment of debts out of real estate. 
 
 c. 62, {I7th August.) To explain and amend To explain 
 
 . „ . . Commutation of 
 
 acts for the commutation ot tithes. Tithe Acts. 
 
 34-4 Vict. c. 31, {2Zrd July, 1840.) To extend the Inchsure of 
 powers of the acts relating to the inclosure of open and arable "^^"-^^ *• 
 fields in England and ff ales. 
 
 c. 55, {Ath August.) To empower owners of Expense of , 
 
 settled estates to defray expenses of draining by mortgage, fayed by •f''- ^.^37 ^ 
 
 mortgage. c d /. 
 
 c. 92, {\mh August.) To enable Courts of Evidence oj 
 
 births, deaths, 
 burials, Sfc.
 
 522 
 
 OF STATUTES. 
 
 Justice to admit non-parochial registers as evidence of births 
 or baptisms, deaths or burials, and marriages. 
 
 Lease, for a 4^5 Vict. c. 21, (ISth May, 1841.) To render a release 
 
 year dispensed />i,^ ir .. ^ r ^ j 
 
 ^,j-^^ ' 01 real estate as ettectual for conveyance, as a lease and 
 
 release. 
 
 Commutation c. 35, i2lst June.) For commutation of 
 
 rights^ and the ^lanorial rights of copyhold customary and other lands, and 
 
 facilitati7ig of f^j. facilitating enfranchisement of such lands: amended 6 dS* 7 
 
 ment. Vict. c. 23, and 7^8 Vict. c. 55, {29tk July, 1844.) 
 
 Conveyance c. 38, (21^^ June.) To afford further facilities 
 
 and endowment „ , , /• • f i i i 
 
 ot sites for ^^^ Conveyance and endowment of sites for schools : and see 
 
 schools. 7^8 Vict. c. 37, ss. 3, 4. 
 
 Sale of parish 
 property. 
 
 5 S^ Q Vict. c. 18, (13^A May, 1842.) To explain and 
 amend acts relating to sale of parish property ; explaining 
 5 Sr6 W.4,c. 69, s. 3. 
 
 c. 27, (18tk June.) To enable incumbents of 
 
 Fanning leases ^—. 
 
 hi/ ecclesiastical ^ ' • ^ ^ r n • t 
 
 persons. ecclesiastical benefices to grant farming leases. 
 
 Income Tax. 
 
 c. 35, imposing a tax upon income. 
 
 For perpetu- 
 ating testimony. 
 
 c. 69, {ZOth July, 1842.) To perpetuate 
 
 testimony in certain cases. 
 
 Amendment of 
 hanhruptcy law. 
 
 c. 122, (I2th August.) For the amendment 
 
 of the law of bankruptcy. 
 
 The better pro. 6 <^- 7 Vict. c. 37, {28th July, 1843.) To make better 
 
 viding for ..„, ..,- 
 
 spiritual care provision for the Spiritual care of populous parishes : by s. 20 
 
 " '!°^" "'" patronage may be conferred upon contributors. 
 
 parishes. i o j r 
 
 c. 54, (lOth August.) Extending the Statute 
 
 Statute of , 
 
 Limitations to . . . 
 
 Ireland, of Limitations 3 8^' A W. 4, c. 27, to Ireland, explained by 
 
 r <5^ 8 Vict. c. 27.
 
 OF STATUTES. 5 '23 
 
 7 <§' 8 Vict. c. 66, (6tk August, 1844.) To amend the Aliens. 
 laws relating to aliens. 
 
 c. 70, (6th August.) To facilitate arrange- Arrangements 
 
 ments between debtors and creditors on petition to Court of and^creditor" 
 Bankruptcy. 
 
 c. 76, {Qth August.) To simplify the transfer Transfer oj 
 
 of property : this statute is referred to throughout the work, P^°P^'' 'J- 
 see ch. Remainder, Uses and Trusts, Release, Bargain and 
 Sale, &c., it came into operation 1*^ January^ 1845. r^ ^/^.^ . 
 
 1 10, {^th September.) For registration, incor- Registration, 
 
 poration, and regulation of Joint Stock Companies. ^ai^ulre^uiatinn 
 
 of joint stuck 
 111 I r 1 ct 7 \ T-i •!• companies. 
 
 c. Ill, (5t/i oeptemoer.) tor winding up ff^j,j^j„ „ ^^ 
 
 affairs of Joint Stock Companies. '^e'> affairs. 
 
 ^A^ <:o77ycTyimce cy- ^^'^^ ^?'a/><:'f/y 
 - ■ - -'-^v - ^ -A-Pi. ^Ci!^ i-z /-acZdi^zt^S^
 
 ADDENDA. 
 
 The reader is referred to the note in the chapter " Gift,'^ 
 p. 309, in which the case of Attorney General v. Jones, 
 3 Price, 368, is noticed, and Gaskell v. Gaskell, 2 Yo. 8^ J. 
 502, is cited, and to which may be added the recent case of 
 Sheldon v. Sheldon {July, 17, 1844), 8 Jurist, 877. It did 
 not occur to the Editor, as that part of the work was passing 
 through the press, that it might be useful to remind the student, 
 that those cases do not affect voluntary settlements of stock, 
 leasehold and other personal estate, upon the execution of 
 which the property is actually transferred to the trustees, and 
 the deed delivered up to them, although the settlor may re- 
 serve to himself a power of revocation. It must be conceded 
 that such deeds are made with a view to avoid probate and 
 legacy duty, but they have long been in use, and no doubt 
 has been entertained of their validity. Thompson v. Browne, 
 3 Mylne Sf K. 32. 
 
 It would, however, be dangerous to include in such settle- 
 ments, any property of which the settlor retains the actual 
 legal possession and control, as the whole instrument might, 
 in that case, be held testamentary. The settlor should also 
 carefully abstain from any reference in his will to the 
 settlement. 
 
 It is not advisable to omit the power of revocation ; indeed, 
 few settlors would choose irrevocably to part with their pro- 
 perty in their lifetime ; but it is suggested for consideration, 
 whether it might not be the safer course to reserve the 
 power of revocation by deed only, and not by will ; because a
 
 526 ADDENDA. 
 
 general residuary disposition of personal estate under the 
 27th section of the 2 Vict. c. 26, might be construed as an 
 exercise of the power of revocation and new appointment, 
 and so, unintentionally, defeat the settlement, by passing 
 the property comprised therein to the residuary legatee. 
 
 In the decision of Sheldon v. Sheldon by Dr. Lushington, 
 (sitting for Sir H. Jenner Fust), as reported in the 8 Jurist, 
 the following observation is ascribed to that learned Judge, 
 " I may here observe that since the decision of Thompson v. 
 Browne, the law, as to legacy duty, has been altered, in 
 order and so as to make duty payable on instruments 
 intended to avoid legacy duty." As this supposed dictum 
 created some anxiety and alarm in the Profession, the 
 Editor felt it his duty to ascertain, if possible, whether it 
 was accurately reported. He has been obligingly favoured 
 with the perusal of the MS. judgment, as delivered by the 
 learned Judge, in which no such passage, as that imputed to 
 him, occurs. Possibly in the course of his observations, he 
 may have adverted to the alteration as once in contemplation, 
 but which never passed into law, and so may have been 
 misunderstood by the reporter ; but the Editor feels himself 
 authorized to state, that no such dictum, as that imputed, 
 formed any part of the able judgment in Sheldon v. Sheldon. 
 
 In that judgment, the reader will find the alterations in 
 the law, effected by the late Statute of Wills, respecting the 
 probate of testamentary papers, and the incorporation into 
 the will of separate instruments, whether valid per se or 
 otherwise, clearly and pointedly stated by Dr. Lushington. 
 
 In corroboration of the Editor's observations in the Chapter 
 " Feme Covert," pages 437 — 440, the reader is referred to 
 the recent case of Harrop v. Howard, 9 Jurist, 82, decided 
 by Sir James Wigram, V. C.
 
 TABLE OF CASES. 
 
 — ♦- 
 
 Aberdeen v. Newland 
 Acherly v. Vernon 
 Acton V. White 
 
 V. Wood{j;ate 
 
 Adams v. Adams 
 
 V. Gibney 
 
 V. Pierce 
 
 V. Savage 
 
 Ainslie v. Medlycott 
 Aldenburgh v. Peaple 
 Alexander v. Alexander 
 Allen V. Allen 
 Allison V. Dickenson 
 Anderson v. Anderson 
 
 V. Dawson 
 
 Annesley, ea;/)«We 
 
 Anonymous 
 
 V. Cooper 
 
 Ards V. Watkin 
 
 Am shy v. Woodward 
 
 Arthington v. Coverly 
 
 Ashton V. McDougall 
 
 Ashurst V. Mingay 
 
 Atherton v. Pye 
 
 Atkinson v. Baker 
 
 Attorney-General V. Downing xxvii 
 
 V. Jones 309. 
 
 Addenda 525 
 
 V. Sandys 50 
 
 Auriol V. Mills . . 318 
 
 Aylet V. James . . 319 
 
 Page 
 
 480 
 
 xxvii 
 
 439 
 
 310 
 
 279, 280 
 
 315 
 
 44 
 
 114. 183 
 423 
 341 
 275 
 418 
 4G7 
 437 
 444 
 501 
 233 
 286 
 318 
 39 
 424 
 423 
 318 
 200 
 
 71.76 
 
 Baggett V. Meux 
 Baker v. Bayley 
 V. Lade 
 
 B. 
 
 Bachelour v. Gage 
 
 318 
 
 Page 
 439 
 78 
 352 
 232 
 316 
 307 
 317 
 105 
 466 
 
 Baldwin v. Peach 
 Bamford v. Hayley 
 Banbury's (Lord) Case 
 Barclay v. Raine 
 Barker v. Barker 
 
 v. Railton 
 
 Barnard V. Godscall 316—318 
 Barnes v. Crowe xxvii. 365 
 
 Barnfather v. Jordan 320 
 
 Baron v. Martin . . 233 
 
 Barry v. Goodman . . 24 
 
 Barrymore v. Ellis 437 — 439 
 
 Barton v. Briscoe 435. 443 
 
 Bates v. Graves . . 307 
 
 Battersbee v. Farrington 307 
 
 Bayley v. Leominster, the Cor- 
 poration of . . 325 
 Baynham v. Guy's Hospital 324 
 Beard v. Westcott 35. 206, 208 
 Bearpark v. Hutchinson 77 
 Beaumont's Case 395. 402 
 Beaumont V. Thorpe .. 308 
 Bedell's Case . . 350, 352 
 Bellingham v. Alsop 249 
 Bengough v. Edridge 205, 206 
 Bennett v. Gandy . . 249 
 Bentham v. Wiltshire 268 
 Berkeley v. York, Archbishop 
 
 of . . . . 342 
 
 Bernard v. Bonner . . 1 1 
 
 Berry and Goodman's Case 26 
 Betts V. Kimpton . . 427 
 
 Bewdley Case . . xxiii
 
 528 
 
 TABLE OP CASES CITED. 
 
 Page 
 Bickley v. Guest . . 281 
 
 BifTgot V. Smyth .. 159 
 
 Birch V. Wright 13. 15. 30 
 
 Bishop V. Howard . . 24 
 
 Blackborough v. Davis 463 
 
 Blake v. Blake . . 78 
 
 Blevvitt, in re . . 201 
 
 Bligh V. Brent , . 175 
 
 Blosse V. Clanmorris 221, 222. 412 
 Blunden v. Baugh . . 22 
 
 Boddington v. Abernethy 244, 245 
 
 Bole V. Horton 
 Bonifaut v. Greenfield 
 Booth V. Booth 
 Botting V. Martin 
 Boulton V. Canon 
 Bovey v. Skipwith 
 Bovy's Case 
 
 V. Smith 
 
 Bowers v. Littlewood 
 Bowes V. Bowes 
 Bowles's (Lewis) Case 
 Bradshaw v. Lawson 
 Bradstock v. Scovell 
 Braithwaite v. Hitchcock 
 Brandon v. Ashton 
 
 V. Robinson 
 
 Bray v. Hammersley 
 Braybroke v. Inskip 
 Bredon's Case 
 Brett V. Cumberland 
 Bridges v. Hitchcock 
 Britton v. Twining 
 Broadhurst v. Morris 
 Bromfield v. Crowder 
 Brooke v. Clarke 
 Broom v. Hore 
 Broome v. Monk 
 Broughton v. Langley 
 Brown v. Amyott 
 
 V. Bamford 
 
 V. Higgs 
 
 V. Pocock 
 
 V. Raindle 
 
 Brudenell v. Elwes 
 Brummel v. Macpherson 
 
 124 
 478 
 466 
 29 
 320 
 258 
 169 
 278 
 
 461,462 
 365 
 83. 106 
 474 
 393 
 23 
 434 
 433 
 
 .. 276 
 
 336 
 
 81 
 
 318, 319 
 324 
 43. 211 
 383 
 379 
 498 
 318 
 367 
 242 
 285 
 
 437. 440 
 277 
 435 
 171 
 
 276. 280 
 40 
 
 Brydges v. Brydges 
 Buckland v. Hall 
 Buckler's Case 
 Buckworth v. Thirkell 
 BuUin V. Fletcher 
 Bulwer v. Bulwer 
 Burnaby v. Griffin 
 Burnet v. Mann 
 Bush V. Calls 
 Bustard v. Coulter 
 Butler V. Duckmanton 
 
 C. 
 
 Cadell V. Palmer 
 Calton V. Porter 
 Calvin's Case 
 Campbell v. Lewis 
 
 V. Sandys 
 
 Capel V. Wood 
 Carew v. Johnston 
 Caruthers v. Caruthers 
 Carter v. Barnardiston 
 v. Madgwick 
 
 Page 
 
 259 
 
 318. 320 
 
 12. 225 
 
 103 
 
 366 
 
 4 
 
 :xvii. 432 
 
 461 
 
 316 
 
 329 
 
 24 
 
 206 
 496 
 xix 
 316 
 72. 78 
 325 
 232 
 97 
 66 
 343 
 461 
 309 
 419 
 325 
 445 
 
 Cave v. Roberts 
 Cecil V. Butcher 
 
 V. Salisbury 
 
 Charlton v. Driver 
 Cholmeley's (Sir H.) Case 
 Cholmondeley v. Clinton 232. 337 
 
 Christopher v. Sparke 13 
 
 Church V. Brown . . 323 
 
 Churchil v. Grove . . 258 
 
 Clanricarde's (Earl) Case 352 
 
 Clarke v. Blake . . 276 
 
 Clavering v. Clavering 82 
 
 Clayton v. Ashdown 418 
 
 V. Blakey . . 5 
 
 Clever v. Gyles . . 264 
 Chfton V. Jackson . . 97 
 Clough V. Clough . . 422 
 Cockson V. Cock 316 
 Cole's Case .. 316 
 Cole V. Levingston .. 199 
 V. Sewell . . 204
 
 TABLE OF CASES CITED. 
 
 529 
 
 Colmore v. Tyndall 
 Colton V. Wilson 
 Conan v. Kemise 
 Congham v. King 
 
 Page 
 194 
 369 
 316 
 316 
 
 Congleton, Mayor of, v.Pattison 316 
 Cook V. Booth . . 324 
 
 V. Gerrard .. 199 
 
 Cooper V. Emery .. 317 
 V. Wyatt 40. 434, 435 
 
 Copeland v. Stephens 
 Corbet's Case 
 
 V. Stone 
 
 Cordal's Case 
 Cotterell v. Homer 
 Cotterel v. Hooke 
 Cox V. Chamberlain 
 Coxe V. Day 
 Cromp V. Barrow 
 Cromwel's Case 
 Crossing v. Scudamore 
 Crusoe v. Bugby 
 Cupit V. Jackson 
 Currie v. Nind 
 Curtis V. Curtis 
 
 V. Price 
 
 Cusack V. Cusack 
 
 319 
 143 
 184 
 
 91 
 
 307 
 
 318, 319 
 
 92 
 
 69 
 275 
 349 
 352 
 39. 322 
 293. 496 
 307 
 
 90 
 194 
 113 
 
 443 
 2 
 115 
 375 
 461 
 
 D. 
 
 Daniel v. Dudley 
 
 Daniels v. Davison 
 
 Dare v. Hopkins 
 
 Davenport v. Coltman 
 
 D'Avers v. D'Ewes 
 
 Davies v. Bush 161. 191 
 
 v. Thornycroft 437.441 
 
 Davis V. Keipp , . 168 
 
 V. Marlborough, Duke of 60 
 
 Davison v. Stanley 342 
 
 Dearden, in re 260, 261. 508 
 
 De Grey v. Richardson 105 
 
 Denne V. Judge .. 167 
 
 V. Roake .. 279 
 
 Dennis's Case . . 97 
 
 Devon, Duke of, v. Kinton 72. 75 
 
 Digge's Case . . 278 
 
 Dillon v. Dillon . . 78 
 
 V. Grace . . 279 
 
 Dimock's Case . . 249 
 
 Disdale v. Isles . . 2 
 Doe d. Dean and Chapter of 
 
 Windsor's Case . . 316 
 Doe d. Thomas v. Acklam 500 
 
 V. Archer . . 336 
 
 V. Ball . . 307 
 
 V. Banks . 39 
 
 V. Bartle . . 499 
 
 d. Rigge V. Bell 5 
 
 V. Bevan . . 39. 323 
 
 v. Biggs . . 31. 264 
 
 V. Bhss , . 40 
 
 ■ V. Burville . . 200 
 
 V. Butler . . 32 
 
 V. Calvert . . 31, 32 
 
 v. Carter 39, 40. 472 
 
 V. Clarke . . 375. 424 
 
 V. Cleveland, Marquis of 296 
 
 V. Cole . . 354 
 
 V. Crick . . 31 
 
 V. David . . 40 
 
 v. Davies . 296 
 
 v. Dixon 153. 454 
 
 v. Donovan . . 31 
 
 v. Ekins . . 40 
 
 v. Evans ■ . 365 
 
 v. Eve , . 385 
 
 V. Ewart . . 379 
 
 V. Finch . . 45 
 
 V. Fleming . . 371 
 
 V, Forster .... 31 
 
 V. Giles . . 14 
 
 V. Goflf .. 112 
 
 V. Gwinnell , . 88, 89 
 
 V. Haslewood . . 372 
 
 V. Heley . . 501 
 
 V. Hickman . . 499 
 
 V. Hicks . . 194 
 
 V. Hilder . . 55 
 
 V. Howard . . 31 
 
 M M
 
 530 
 
 TABLE OF CASES CITED. 
 
 Doe 
 
 d. 
 
 V. 
 
 - — d. 
 
 V. 
 
 V. 
 
 d. 
 
 d. 
 
 d. 
 
 Hou-ell 
 Huntingdon 
 Jackson 
 Johnston 
 Joinville 
 Jones 93. 281. 
 Keen 
 Larably 
 Pitt V. Laming 
 Lawder 
 Lawes 
 Lean 
 Ludlam 
 
 , Blake v. Luxton 
 Lyde 
 Lynes 
 Maisey 
 Martin 
 Mihvard 
 Moody 
 Moore 
 Oliver 
 Parratt 
 
 Passingham 245 — 
 Peach 
 Pearson 
 Pegge 
 Perkins 
 Pettet 
 
 Woolley V. Pickar 
 Plowman 
 Porter 
 Pott 
 Pratt 
 Ramsden 
 Ravvding 
 Redfern 
 Ridout 
 Rivers 
 Robinson 
 Rock 
 Roe 
 
 Anglesea v. Roe 
 Bradford v. Roe 
 Phillips v. Roe 
 
 393 
 
 Page 
 lOp. 194 
 474 
 
 20 
 342 
 371 
 401 
 149 
 
 31 
 323 
 
 21 
 
 378 
 
 378 
 
 499 
 
 77,78 
 
 43 
 298 
 
 14 
 278 
 341 
 298 
 379 
 400 
 426 
 247.274 
 499 
 
 191. 
 
 149 
 
 49 
 
 26 
 
 25 
 
 340 
 
 55 
 
 29 
 
 xxviii 
 
 372 
 
 480 
 
 421 
 
 498 
 
 30 
 
 104 
 
 76 
 
 20 
 
 29,30 
 
 503 
 
 503 
 
 503 
 
 Page 
 Doe v. Saunders 354. 360 
 
 V. Sayer . . 20 
 
 V. Scarborough, Lord 412 
 
 48,49.404 
 
 V. Scott 
 
 V. Sherlock 
 
 V. Smith 
 
 V. Sotheron 
 
 V. Spence 
 
 V. Staple 
 
 V. Sybourne 
 
 V. Taylor 
 
 V. Tompson 
 
 d. Wood V. Teage 
 
 V. Terry 
 
 V. Tomkinson 
 
 V. Wainewright 
 
 V. Walker 
 
 V. Watkins 
 
 V. Watts 
 
 V. Webb 
 
 V. Welford 
 
 V. Weller 
 
 V. Wharton and Dixon 
 
 V. Whichelo 
 
 V. Whitehead 
 
 — — V. Whittingham 
 
 V. Wilson 
 
 V. Woombwell 
 
 • V. Worsley 
 
 V. Wroot 
 
 Donne v. Hart 
 Dormer v. Fortescue 
 V. Parkhurst 
 
 Douglas V. Congreve 
 Doungsworth v. Blair 
 Down, Lord, v. Morris 
 Dowse v. Percival 
 Driver v. Edgar 
 Drury v. Drury 
 Dubber v. Trollope 
 Dudley v. Dudley 
 Duffield V. Duffield 
 Dumpor's Case 
 Duncomb v. Duncomb 
 Dunk v. Hunter 
 
 349. 354 
 
 40 
 
 161 
 
 31 
 
 49 
 
 48 
 
 297 
 
 27 
 
 492 
 
 501 
 
 191 
 
 199 
 
 36,313 
 
 31 
 
 24 
 
 200 
 
 280 
 
 432 
 
 49 
 
 119 
 
 118 
 
 348 
 
 171. 499 
 
 31 
 
 39. 199 
 
 49 
 
 443 
 
 340 
 
 91 
 
 112 
 
 353 
 
 498 
 
 54 
 
 215 
 
 96, 97 
 
 141 
 
 50 
 
 195 
 
 40. 346 
 
 91 
 
 21
 
 TABLE OF CASES CITED. 
 
 531 
 
 Page 
 
 E. 
 
 Eales V. Conn . . 262 
 
 Eare v. Snow . . 88. 402. 414 
 
 East India Company v. Clavel 308 
 Eaton V. Lyon 
 Edwards v. AUiston 
 
 V. Fincham 
 
 V. Freeman 
 
 V. Hammond 
 
 325 
 199 
 370 
 461 
 379 
 209 
 460 
 
 72 
 114 
 
 55 
 378 
 433 
 
 Elborne v. Goode 
 Elliot V. Collier 
 
 V. Jekyl 
 
 Else V. Osborne 
 Emery v. Grocock 
 Esdaile v. Gall 
 Essex V. Atkins 
 Eton, Provost of v. Winton, Bishop 
 of .. .. 329 
 
 Eyre v. Marsden . . 209 
 
 Faircloth v. Gurney . 480 
 
 Fairfield v. Weston . 496 
 
 Farmer v. Bradford . . 279 
 
 V. Rogers 341 
 
 Farrant v. Lovel . . 16 
 
 Falkner v. Butler . . 276 
 
 Fenny v. Child . . 4 
 
 Fenwick v. Reed . . 232 
 Fermor's case . . 390, 391 
 
 Festing v. Allen 195 
 
 Fishar v. Prosser .... 25 
 
 Fisher V Wigg .... 174 
 
 Fletcher v. Lord Sondes 505 
 
 Flight V. Salter . . . 480 
 
 Flood V. Finlay . . . . 40 
 
 Flower v. Baldwin . . 249 
 
 Focus V. Salisbury . . 17 
 
 Folkingham V. Croft .. 321 
 
 Forbes v. Peacock . . 269 
 
 Foster v. Pitfall .... 97 
 
 M 
 
 Page 
 
 Fowler v. Richards . . 468 
 
 Freeman v. Barnes .... 17 
 
 V. Fairlie . . 101 
 
 Frere v. Moor . . . 258 
 
 Frogmorton v. Wharrey 114 
 
 Fry's case . . . . 215 
 
 Fryett v. Jefferys . . 40 
 
 Fulmerston v. Steward . . 342 
 
 Furnival v. Crewe . . 324 
 
 G. 
 
 Gale V. Gale .... 
 
 Garrard v. Lord Lauderdale 
 Garth v. Cotton 
 Gaskarth v. Lowther 
 Gaskell v. Gaskell 
 
 George v. Milbank 
 Gibbons v. Hooper 
 Gibson v. Wells 
 Giddings v. Giddings 
 Gill, Mary, ex parte 
 Goddard in re 
 
 167 
 
 310 
 
 83 
 
 367 
 
 176. 309. 
 
 Add. 525 
 308 
 480 
 471 
 325 
 431 
 260,261. 508 
 
 Godden v. Crowhurst 
 Goodhill V. Brigham 
 Goodright v. Davids 
 
 V. Sales 
 
 Goodtitle v. Bailey 
 
 V. Billington 
 
 V. Jones 
 
 V. Morgan 
 
 V. Petto . . 
 
 434 
 
 281, 282 
 
 38 
 
 49 
 
 353 
 
 188 
 
 49. 51, 55 
 
 . 51. 55 
 
 350. 352 
 
 Gore V. Gore . . 183 
 
 Goring v. Warner . . 39 
 
 Gould V. Tancred . . 233 
 
 Gower v. Grosvenor . . 255 
 Grafton, D. of v. Lond. and B. R. 
 Co. . . 129. 222. 445 
 
 Graves v. Dolphin . . 433 
 
 V. Hicks .. 385 
 
 Gray v. Bond . . 55 
 
 Green's case 38 
 
 Green v. King . . 426 
 
 M 2
 
 ,r32 
 
 TABLE OF CASES CITED. 
 
 Page 
 
 Green v. Spicer . . 433 
 
 V. Stephens . . 200 
 
 Greneley's case . . 396 
 
 Grenville v. Blyth . . 410 
 
 Gretton V. Haward .. 112 
 
 Grice v. Grice . . 4fil 
 
 Griffiths V. Gale . . 387 
 
 V. Vere . . 209 
 
 Guest V. Willasey . . 365 
 
 Gulliver v. Ashby . . 215 
 
 H. 
 
 Habergham v. Vincent 2/1. 273 
 
 Haggerston v. Hanbury 354. 357 
 
 Hagshaw v. Yates 
 
 Hale V. Escott 
 
 Hall V. Surtees 
 
 Hansard v. Hardy 
 
 Harper v. Faulder 
 
 Harris v. Barnes 
 
 Harrison v. Elvin 
 
 Harrop v. Howard 
 
 Harrow School v. Anderton 
 
 Harvey v. Ashley 
 
 Hasker v. Sutton 
 
 Havergill v. Hare 
 
 Hawkins v. Kemp 
 
 Hay v. Coventry 
 
 Hayes v. Foorde 
 
 Hearle v. Greenbank 
 
 Heatley v. Thomas 
 
 Hegan v. Johnson 
 
 Helps v. Hereford 
 
 Herlakenden's case 
 
 Hervey v. Hervey 
 
 Hicks v. Keats 
 
 Hill v. Adams 
 
 Hitchins v. Hitchins 
 
 Hitchman v. Walton 
 
 Hodgeson v. Bussey 
 
 Hodle V. Healy 
 
 Hole V. Escott 
 
 Holford V. Hatch 
 
 258 
 281 
 16 
 232 
 260 
 183 
 371 
 526 
 471 
 423 
 194 
 66 
 272, 273. 478 
 207 
 184 
 
 Add. 
 
 109. 
 
 Holland v Hatton 
 HoUoway v. Millard 
 Holmes v. Coghill 
 Holt v. Ward 
 Honnor v. Morton 
 Hood v. Pimm 
 Hooker v. Hooker 
 Hooper v. Rossiter 
 Hopkins v. Hopkins 
 
 Page 
 
 14 
 
 307 
 
 277 
 
 418 
 
 440, 441 
 
 349 
 
 91 
 229 
 xxiii., 115. 
 195 
 
 alias Dare v. Hopkins 115 
 
 Houghton v. Tate . . 263 
 
 Hornby v. Houlditch . . 318 
 Home V. Barton . . 200 
 
 Howard v. Shaw . . 20. 23 
 Huddle V. Hawksley . . 320 
 
 Hudson V. Parker 373. Add. 525 
 Hughs V. Clubb . . 97 
 
 Hughes V. Robotham . . 56 
 
 V. Turner . . 365 
 
 Hulme V. Tenant . . 432 
 
 Humbertson v. Humbertson 207. 
 
 275 
 Humphrey v. Tayleur . . 167 
 Hunloke v. Jell . . 279 
 
 Hunt V. Bourne .. 81 
 
 Hyde v. Dean of Windsor 316 
 
 424 
 
 Iggulden V. May 
 
 315 
 
 . 324 
 
 271 
 
 Inchiquin v. Burnel 
 
 
 324 
 
 21, 22. 323 
 
 Irnham v. Child 
 
 
 288 
 
 121.229 389 
 
 Iseham v. Morrice 
 
 
 249 
 
 106 
 
 Isted V. Stanley 
 
 
 466 
 
 96 
 
 Isteed V. Stonely 
 
 
 325 
 
 496 
 
 Ive's case 
 
 
 342 
 
 47 
 
 
 
 
 66.86 
 
 
 
 
 14 
 
 J. 
 
 
 
 211 
 
 
 
 
 233 
 
 Jackson v. Hobhouse 
 
 
 433 
 
 281 
 
 James v. Dean 
 
 29. 
 
 367 
 
 321 
 
 Jenner v. Traeey 
 
 
 233
 
 TABLE OF CASES CITED. 
 
 533 
 
 Jephsen v. Reira 
 
 Jernegan v. Baxter 
 
 Jerrit v. Weave 
 
 Jersey v. Deane 
 
 Jervis v. Tayleur 
 
 Jervoise v. Northumberland, Duke 
 
 Page 
 101 
 
 468 
 298 
 191 
 125 
 
 of, 
 Jesson V. Wright 
 Johnson v. Johnson 
 
 V. Legard 
 
 V. Trumper 
 
 Jones V. Curry 
 
 V. Laughten 
 
 V. Morley 
 
 V. Salter 
 
 V. Winwood 
 
 V. Wise 
 
 K. 
 
 255 
 112 
 387. 436 
 351 
 44 
 279 
 113 
 263 
 435 
 281 
 433 
 
 Kearsley v. Woodcock 
 
 434, 435 
 
 Keech v. Hall 
 
 14 
 
 Kemp V. Derret 
 
 31 
 
 Kendall v. Mickfield 
 
 .. 77 
 
 Keppell V. Bailey 
 
 317 
 
 Keylway v. Keylway 
 
 462 
 
 Kidney v. Coussmaker 
 
 . . 308 
 
 Kinch V. Ward 
 
 211 
 
 King V. Boys 
 
 243 
 
 V. Irvine 
 
 444 
 
 King, The v. Smith 
 
 53 
 
 Knocker v. Bunbury 
 
 385 
 
 KnoUys v. Alcock . . 
 
 154. 157 
 
 Lade v. Baker 
 
 
 219 
 
 V. Holford 
 
 
 48, 49 
 
 Lake v. Gibson 
 
 
 160 
 
 Lampet's case 
 
 
 44. 225 
 
 Lane v. Pannell 
 
 
 114 
 
 Lanesborough v. 
 
 Fox . 
 
 213 
 
 Langton v. Tracey 
 
 310 
 
 Page 
 Lawley v. Hooper . . 288 
 
 Lear v. Legett . . 435 
 
 Leech V. Leech ., 310 
 
 Le Hunt v. Hobson . . 208 
 Leighton v. Theed . . 4 
 
 Lekeux V.Nash 314.320 
 
 Levin v. Weatherall . . 199 
 Lewes v. Lewes . . 434 
 
 V. Lewellyn . . 279 
 
 Lilley v. Whitney . . 343 
 Lincoln's case . . xxviii 
 Line v. Stephenson . . 315 
 Lombe v. Stoughton . . 209 
 London, City of, v. Mitford 325 
 v. Richmond 320 
 
 Longdon v. Simson . . 209 
 
 Longford v. Eyre . . 273 
 
 Low V. Burron . . 78, 79 
 
 Lowe V. Davies .. 112 
 
 Lush V, Wilkinson . . 308 
 
 Luther v. Kirby . 152, 154 
 
 Lynn v. Ashton . . 443 
 
 Lyon V. Mitchell . . 43 
 
 M. 
 
 Maber v. Hobbs . . 436 
 
 Machell v, Clarke . . 117. 348 
 Macher v. The Foundling Hospital 
 
 40 
 Machil V. Clarke . . 357 
 
 Maddison v. Andrew . . 276 
 Magennis v. M'Culloch 341 
 
 Major V. Lansley . . 442 
 
 Malcolm v. O'Callighan . . 435 
 Manning's Case . . 44 
 
 March v. Brace .. 318 
 
 Marlborough, Duke of, v. Godol- 
 phin. Lord . 72 
 
 Marshall v. Frank . . 354 
 
 v. HoUoway . . 209 
 
 Martin d. Tregonwell v. Strachan 
 
 117 
 Martinez v. Cooper . . 260
 
 534 
 
 TABLE OF CASES CITED. 
 
 Page 
 Marwood v. Turner . . 367 
 Matures v. Westwood . . 318 
 Maundrell v. Maundrell, 47. 53. 
 55. 92. 97. 101, 102 
 Maunsfield's Case . . 99, 100 
 Maxwell v. Ward . . 325 
 
 May V. Street . . 498 
 
 Medley v. Horton . . 437, &c. 
 Meek v. Kettlewell . . 230 
 
 Mellish V. Mellish 115 
 
 Mellows V. May . . 11. 342 
 Mentney v. Petty . . 462 
 
 Merceron v. Dowson . . 321 
 
 Meredith v. Joans . . 142 
 
 Merest V. James . . 257- 259 
 Merry, re . . 261 
 
 Meyrick V. Whishaw .. 199 
 Middlecome v. Marlow . . 308 
 Middlemore V. Goodale .. 316 
 Miller v. Green . . 312 
 
 Milner v. Lord Harewood, 75. 422 
 
 V. M'Lean . . 225 
 
 Mogg V. Mogg . . 185. 200 
 
 Mole V. Smith . . 53. 102 
 
 Mollet V. Brayne . . 29 
 
 Moneypenny v. Bristow 365 
 
 Moody V. King . . 103 
 
 Moor V. Barham . . 463 
 
 Moore v. Foley . . 324 
 
 V. Moore . 439, 440 
 
 Mores v. Huish . . xxvii. 432 
 Moreton v. Lees . . 93 
 
 Morgan v. Morgan . . 104 
 
 Moss V. Gallimore .. 14 
 
 MuUery v. Jennings . . 357 
 Murray v. Harding . . 288 
 
 N. 
 
 Nevell V. Nevell .. 199 
 
 Newcastle, Duke of, v. Lincoln 254 
 Newland v. Watkin . . 480 
 Newton v. Reed . . 433. 435 
 
 Noel V. Ward . . 63 
 
 Nokes's Case 
 Noke V. Awder 
 Norton v. Acklane 
 
 V. Frecker 
 
 Nouaille v. Greenwood 
 
 Page 
 
 315 
 316 
 318 
 
 78 
 409 
 
 O. 
 
 Oke V. Heath , . 279 
 
 Oldham v. Pickering 71. 73. 76 
 Omychund v. Barker . . xx 
 
 Osbrey v. Bury . . 278 
 
 Osman v. Sheafe . . 352 
 
 Page V. Way 
 Paget V. Foley 
 
 V. Gee 
 
 Palmer v. Edwards 
 V. Garrard 
 
 434 
 264 
 284 
 .. 41.319 
 461 
 
 Paramour v. Yardley . . 44 
 
 Parker v. Constable . . 23 
 
 V. Harris 283 
 
 V. Web .. 316. 318 
 
 Parkes v. White . . 433 
 
 Parteriche v. Powlet . . 83 
 Partridge v. Bere . . 16 
 
 Patton V. Randall . 268 
 
 Payne, ex parte .. 261. 508 
 Peacock v. Monk . . 307. 349 
 Peate v. Ougly . . 368 
 
 Pelham's Case . . 81 
 
 Penhay V. Hurrel .. 114 
 
 Perrot's (Sir James) Case 264 
 
 Perrott v. Perrott . . 82, 83 
 
 Perry v. Phelips . . 228 
 
 Pett's Case . . 461, 462 
 
 Phipard v. Mansfield . . 200 
 
 Phipson V. Turner . . 277 
 
 Phipps V. Akers , . 379 
 
 V. Lord Ennismore 433 
 
 Pibus V. Mitford . 114
 
 TABLE OF CASES CITED. 
 
 535 
 
 Page 
 Pickering v. Towers 372 
 
 Piercy v. Roberts . . 434 
 
 Piggot V. Waller . . 364 
 
 V. Salisbury . . 82 
 
 Pilkington v. Peacli . . 500 
 Pitcher v. Tovy . . 320 
 
 Pitt V. Jackson . . 275 
 
 Pomfret v. Windsor . . 17 
 
 Potter V. Swetnam . . 316 
 
 Poultney v. Holmes 41. 286. 320 
 Powseley v. Blackman . . 13 
 
 Preece v. Corrie . . 286 
 
 Proctor V. Bishop of Bath and 
 
 Wells . . 185 
 
 Proctor V. Oates . . 232 
 
 Purdew v. Jackson 440, 441 
 
 Purefoy v. Rogers . . 161. 202 
 Pybus V. Smith . . 432 
 
 Pym V. Lockyer . . 435 
 
 R. 
 
 Radnor v. Vandebendy 
 Raffety v. King 
 Raggett V. Clarke 
 Ravenshaw v. Hollier 
 Rawley v. Holland 
 Rawlins v. Burgis 
 Ray V. Pung 
 Rees d. Chamberlain v. 
 
 Reid V. Shergold 
 Rex V. Holland 
 
 V. Lord of the Manor of 
 
 Oundle 
 
 V. Smith 
 
 V. Stone 
 
 Reynolds v. Jones . . 298. 
 Richardson v. Langridge . . 
 
 V. Sydenham 
 
 Riddell v. Gwinnell 
 
 V. Jenner 
 
 Rigden v. Vallier 
 
 52 
 
 232 
 
 71 
 
 310 
 
 114 
 
 366 
 
 93. 281 
 
 Lloyd 
 
 295. 354 
 
 271 
 
 500 
 
 Right V. Beard 
 
 245 
 53 
 
 29 
 392 
 
 12 
 324 
 
 89 
 89 
 174 
 20, 21 
 
 Page 
 Right V. Bucknell . . 354 
 
 V. Darby . 31 
 
 Ripley v.Watervvorth 71, 72. 74. 76 
 Rippon V. Norton . . 434, 435 
 Roach V. Wadham . . 95. 275 
 Roberts v. Roberts . . 63 
 
 Robertson v. St. John . . 324 
 Robinson V. Waddilow .. 371 
 Rodham v. Barry . . 286, 287 
 Roe d. Berkeley v. Archbishoj) 
 
 of York . . 342 
 
 Roe d. Crow v. Baldvvere 1 17 
 
 V. Clayton . . 200 
 
 V.Elliott .. 190.401 
 
 V, Ferrars . . 25 
 
 V. Galliers . . 40 
 
 V. Harrison . . 39, 40 
 
 d. Bamfordv. Hayley3l6.325 
 
 V. Reade . . 49 
 
 V. Sales . . 39 
 
 V. Tranmarr . . 353 
 
 V. Ward . . 24 
 
 Roscommon v. Fowke . . 271 
 Ross V. Ross 433 
 Round V. Byde . , 310 
 Rous and Artois' Case . . 26 
 Routledge v. Dorril . . 276 
 Rowe V. Power . . 103 
 Rushden's Case . . 318 
 Russel V. Hammond . . 307 
 Rutland's (Countess of) Case 263 
 Duke V. Duchess of 462 
 
 Saft'yn's case . . 34 
 
 St. John's College v. Fleming 72 
 
 Salmon v. Swann . . 36 
 
 Salter v. Butler . . 72 
 
 Saltern v. Saltern . . 77 
 
 Sampson v. Goode . . 472 
 
 Sanders v. Saville . . 352 
 
 Savage v. Carrol . . 276 
 
 Savile v. Blacket . . 269
 
 536 
 
 TABLE OF CASES CITED. 
 
 Page 
 Scarborough v. Borman . . 437 
 Scott V. Davis . . 444 
 
 V. Fenhouillet . . 53. 58 
 
 Seton V. Slade . . 367 
 
 Seymor's case .. 118.395 
 
 Shapland V. Smith ., 211 
 
 Shaw V. Pritchard . . 480 
 
 Shears v. Rogers . . 308. 481 
 Shee V, Hale . 435 
 
 Shelburn V. Biddulph .. 120 
 
 Sheldon v. Sheldon Add. 525 
 
 Shelley's case 79. HO. 113, 114. 
 
 349 
 Shirley, ex parte . 431 
 
 Shove V. Pincke . . 353 
 
 Sidney v. Sidney . , 100 
 
 Silberschildt v. Schiott . . 233 
 Silvery v. Howard . . 385 
 
 Simpson v. Gutteridge 100. 422 
 
 464 
 
 V. Jones . . 423 
 
 Skeeles v. Shirley . , 93 
 
 Slatter v. Noton . . 367 
 
 Small v. Dale . . 456 
 
 Smart v. Hunt . . 232 
 
 Smartle v. WilUams 13, 14. 24, 25 
 Smith, ex parte . . 288 
 
 V. Abell •.. 82 
 
 V.Arnold .. 316 
 
 V. Camelford, Lord 276 
 
 • V. CJyfford .. 81 
 
 V. Death .. 281.443 
 
 V. Garland . . 307 
 
 V. Low .. 419 
 
 V. Mapleback . . 286 
 
 V. Pierce . . 17 
 
 V. Smith . . 175. 307 
 
 Smythe v. Smythe . , 83 
 
 Snell V. Clay . . 50 
 
 Snowden v. Dales . , 433, 434 
 Sockett V. Wray . . 433 
 
 Southcoat V. Manory . . 264 
 
 Southampton, Lord v. Marquis of 
 Hertford . . 209 
 
 Sowarsby v. Lacy . . 268 
 
 Page 
 Spencer's case . . 316 
 
 Sperling v. Trevor . . 397 
 
 Spottisvvoode V. Stockdale .. 311 
 Sprange v. Barnard . . xxviii 
 Spyve V. Topham . . 354 
 
 Squib V. Wyn , . 460 
 
 Squire v. Compton . . 50 
 
 Staines v. Morris . . 318. 320 
 Stamper v. Barker . . 423 
 
 Stanhope V. Keir .. 273 
 
 Stanley, in re . . 261. 508 
 
 v. Stanley .. 461 
 
 Stapilton v. Stapilton 1 20. 263 
 Stephens v. Bridges . . 56. 339 
 
 V.Frost .. 379 
 
 V. Olive . 308 
 
 Sterne, ex parte . . 79 
 
 Stiffe V. Everitt .. 440. 442 
 
 Stileman v. Ashdown . 307 
 
 Stokes V. Oliver . . 419 
 
 Stone V. Whiting , . 30 
 
 Storton V. Tomlins . . 496 
 
 Story V. Johnson . . 338 
 
 Strode v. Blackburne . 260 
 
 Sutton V. Chetwynd .. 351 
 Swannock v. Lyford . . 52 
 
 Swift V. Roberts .. 163 
 
 Sykes d. Murgatroyd and Wilks 
 
 V. , . 24 
 
 Symonds v. Cudmore 120. 397 
 
 T. 
 
 Tatem v. Chaplin 
 
 316 
 
 Taylor v. Horde 
 
 298 
 
 V. Jones 
 
 308 
 
 V. Shum 
 
 320 
 
 Thellusson v. Woodford . 
 
 . 424 
 
 Thomas v. Acklam 
 
 500 
 
 V. Cook 
 
 30 
 
 V. Popham 
 
 357 
 
 V. Thomas 
 
 31 
 
 Thompson v. Lawley 
 
 242 
 
 Thompson v. Leach 161.169.340
 
 TABLE OF CASES CITED. 
 
 537 
 
 Thompson v. Simpson 
 ■ ■ V. Wilson 
 
 Page 
 
 277 
 
 29 
 
 41 
 
 276 
 
 Thorn v. Woolcombe 
 Thornton v. Bright 
 Throckmorton v. Tracy . . 217 
 Throgmorton's Case . . 243 
 
 Thruxton v. Attorney-General 
 
 50. 54 
 Thunder v. Belcher . . 14 
 
 Thursby v. Plant .. 318 
 
 Tiffin V. Tiffin . . 50 
 
 Tilney v. Norris . . 316 
 
 Tippin V. Cosin .. 114 
 
 Title V. Grevett . . 4 
 
 Tolson V. Kaye .. 118 
 
 Tomlinson v. Dighton . . 353 
 Tompson v. Browne Add. 525, 
 
 526 
 
 V. Simpson . . 277 
 
 Took V. Glascock .. 117 
 
 Tranmer v. Willes . . 353 
 
 Trash v. White . . 233, 234 
 
 V. Wood . . 383 
 
 Tregame v. Fletcher . . 264 
 Trevor v. Trevor . . 113 
 
 Trimmer v. Jackson . . 368 
 Tritton v. Foote . . 323 
 
 Tucker v. Sanger . . 276 
 
 Tullett v. Armstrong 436, &c. 
 Turner v. Richardson . . 42 
 Twopenny v. Peyton . . 435 
 Twyford v. Trail . . 468 
 
 Tylden v. Hyde . . 268. 478 
 
 U. 
 Uvedall v. Uvedall 
 
 Valliant v. Dodemede 
 Vane, v. Barnard, Lord 
 Venables v. Morris 
 
 83 
 
 320 
 
 83 
 
 194 
 
 Vernon v. Bethell 
 v. Vernon 
 
 Page 
 233 
 
 284 
 
 Verulam, Earl of, v. Bathurst 113 
 
 W. 
 
 Wadham v. Marlow 
 Wainwright, in re 
 Wagstaffv. Smith 
 Walker's Case 
 V. Symonds 
 
 Walsh V. Walsh 
 Walwyn v. Couts 
 Wan V. Lake 
 Wangford v. Wangford 
 Ward V. Moore 
 
 V. Swift 
 
 Watkins v. Brent 
 
 V. Lewis 
 
 Wats V. Dix 
 Watson V. Foxon 
 Watts V. Crooke 
 V. Thomas 
 
 318 
 128 
 433 
 318 
 262 
 461 
 310 
 428 
 .. 466 
 366 
 368 
 466 
 98. 476 
 352 
 200 
 461 
 308 
 
 Weale v. Lower .. 160. 191 
 Weatherall v. Geering . . 40 
 Webb v. Lymington . 63 
 
 v. Russell . 315.319 
 
 v. Lord Shaftesbury 443 
 
 Weddall V. Capes .. 341 
 
 West V. Berney .. 281 
 
 Westfaling v. Westfaling 72 
 
 Wetherell v. Wilson , 435 
 Wheeler v. Duke .. 108 
 
 Whitchurch v. Whitchurch 368 
 White V. Collins .. 112 
 
 V. Sansom . . 308 
 
 V. White . 325 
 
 Whitfield v. Be wit . . 83 
 Whitehead v. Clifford . . 30 
 Whitton, ex parte 26 1. 508, 509 
 Wilce v. Wilce . . 375 
 Wilkes V. Holmes . . 272 
 Wilkinson V. Hall .. 13 15 
 V. South .. 211
 
 538 
 
 TABLE OF CASES CITED. 
 
 Willan V. Willan 
 Willats V. Busby 
 Willcox V. Bellares 
 Williams, ex parte 
 
 Page 
 325 
 307 
 112 
 
 272 
 
 V. Bolton, Duke of 83 
 
 • V. Bosanquet . . 320 
 
 V. Chitty . . 96. 422 
 
 V. Jekyl . . 72 
 
 V. Williams . . 422 
 
 Willoughby v. Willoughby 47 
 Wills V. Palmer .. 114. 195 
 Wilmot V. Knowles . . 264 
 Wilson V. Mount . . 443 
 
 Wiltshire v. Rabbits 44. 239. 428 
 Wiscot's Case . 137 
 
 Wiseman's Case . . 219 
 
 Witts V. Dawkins . . 433 
 
 Wittington v. Jennings 308 
 
 WoUen V. Andrews .. 115 
 Wood, in re . . 128. 201 
 
 Page 
 Wood V. Baron . . 383 
 
 Woodcock V. Gibson . . 501 
 Woodmeston v. Walker 435 
 
 Worrall v. Jacob . . 279 
 
 Wray v. Williams . . 50 
 
 Wright V. Cadogan, Lord 403 
 
 V. Holford . . 200 
 
 V. Wakeford 273, 274. 499 
 
 York V. Stone . . 165 
 
 Young V. Waterpark 271 
 
 Zouch V. Michil . 419 
 V. Parsons . 418,419
 
 TABLE OF THE STATUTES. 
 
 Hen. 1, 469. 
 
 17 John, 469. 
 9 Hen. 3, 470. 
 
 20 Hen. 3, 470. 
 
 52 Hen. 3, c. 24., 82. 470. 
 
 3 Edw. 1, 470. 
 6Edw. l,c. 5., 82. 471. 
 c. 11., 61. 
 
 7 Edw. 1,487. 
 11 Edw. 1, 471. 
 
 13 Edw. 1, c. 1., 460. 471. 
 c. 18., 472. 
 
 18 Edw. 1, St. 1., c. 1., 473. 
 
 14 Hen. 4, c. 20., 500. 
 
 8 Hen. 6, c. 16., 495. 
 18 Hen. 6, c. 6., 495. 
 
 I Rich. 3, c. 1., 474. 
 
 4 Hen. 7, c. 24., 118. 124. 475. 
 
 476. 
 
 I I Hen. 7, c. 20., 97. 1 10. 129. 396. 
 
 476. 
 
 21 Hen. 8, c. 4., 477. 
 
 c. 15., 61. 491. 
 
 27 Hen. 8, c. 6., 34. 
 
 c. 10., 96. 98. 240. 246. 
 
 475. 478. 
 . c. 16., 219. 356. 361. 
 
 478. 
 
 31 Hen. 8, c. 1., 176. 478. 
 
 32 Hen. 8, c. 1., 478. 
 c. 7, s. 7; 408. 
 
 32 Hen. 8, c. 16, s. 13., 500. 
 C 28., 121. 332. 
 
 432. 
 
 479. 
 
 — c. 28, s. 6., 395 
 
 — c. 31., 64. 
 ■-C. 32., 176. 
 
 — c. 34., 480. 
 
 — c. 36., 118. 121. 124, 
 
 396. 476. 
 34 & 35 Hen. 8, c. 5., 479. 
 c. 20., 129. 221. 
 
 396. 446. 480. 
 1 Edw. 6, c. 2., 86. 
 5 Edw. 6, c. 11., 86. 
 1 Eliz. c. 20., 480. 
 
 13 Eliz. c. 5., 480. 
 c. 10., 480. 
 
 14 Eliz. c. 8., 481. 492. 
 
 c. 11., 480. 
 
 18 Eliz. c. 11., 480. 
 23 Eliz. c. 3., 482. 
 
 27 Eliz. c. 4, s. 2., 481. 
 
 c. 9., 482. 
 
 29 Eliz. c. 5., 480. 
 
 31 Eliz. c. 2., 476. 482. 
 39 Eliz. c. 18., 481. 
 43 Eliz. c. 9., 480. 
 21 Jac. 1, c. 2., 25. 
 
 c. 16., 402. 482. 
 
 c. 19, s. 12., 12 
 
 12 Car. 2, c. 24., 483.
 
 540 
 
 STATUTES CITED. 
 
 19 Car. 2, c. 6, s. 2., 483. 
 
 22 & 23 Car. 2, c. 10., 460—463. 
 
 484. 
 29 Car. 2, c. 3., 43. 72. 153. 220. 
 
 314. 329. 484—487. 
 ■ c. 3, s. 1., 5. 
 
 c. 3, 8. 5., 492. 
 
 c. 3, s. 12., 70. 76. 
 
 c. 3, s. 13., 77. 
 
 3 Will. & Mar. c. 14., 487- 506. 
 
 4 & 5 Will. & Mar. c. 16., 487- 
 7 & 8 Will. 3, c. 37., 487. 
 10& 1 1 Will. 3, c. 16.,425.487. 
 11 & 12 Will. 3, c. 6., 451. 500. 
 
 1 Ann. Stat. 1, c. 7., 502. 
 
 2 & 3 Ann. c. 4., 488. 
 4 Ann. c. 16, s. 9., 38. 
 c. 16, s. 9 & 10., 304. 
 
 c. 16, s. 15., 263. 
 
 4 & 5 Ann. c. 16., 123. 
 
 5 & 6 Ann. c. 18., 488. 
 
 6 Ann. c. 18, 483, 484. 
 c. 35., 488. 
 
 7 Ann. c. 5., 451. 
 
 c. 18., 488, 
 
 c. 19., 421. 488. 507. 
 
 c. 20., 488. 
 
 8 Ann. c. 14., 290. 
 
 11 Ann. (I.) c. 3., 509. 
 
 12 Ann. c. 12, s. 2., 488. 
 
 9 Geo. 1, c. 29., 488. 509. 
 2 Geo. 2, c. 19, s. 16., 317. 
 4 Geo. 2, c. 10., 489. 507. 
 
 c. 21., 451. 
 
 c. 28., 286. 290.322. 489. 
 
 c. 28, s. 6., 325. 
 
 7 Geo. 2, c. 20., 490. 
 
 8 Geo. 2, c. 6., 488. 
 
 9 Geo. 2, c. 5 (I.)., 490. 
 
 c. 5, s. 6., 360. 
 
 c. 36., 487. 490. 
 
 11 Geo. 2, c. 19., 284. 518. 
 
 c. 19, s. 11., 304. 
 
 c. 19, s. 15., 284. 
 
 c. 19, s. 18,, 489. 
 
 14 Geo. 2. c. 20., 103. 190. 491. 
 
 14 Geo. 2, c. 20, s. 9,, 70.73.76.103. 
 
 15 Geo. 2, c. 30., 86. 
 
 25 Geo. 2, c. 6, s. 1., 492. 
 
 -^ c. 6, 8S. 3 & 6., 492. 
 
 C. 14., 490. 
 
 c. 39., 451. 500. 
 
 29 Geo. 2, c. 31., 341. 493. 509. 
 32 Geo. 2, c. 16., 482, 
 
 I Geo, 3, c, 1., 501. 
 
 4 Geo. 3, c. 16,, 507. 
 
 5 Geo. 3, c. 17., 77. 
 
 9 Geo. 3, c. 16., 25, 493. 
 
 II Geo. 3, c. 20., 493. 509. 
 13 Geo. 3, c. 14., 500. 
 
 c 21., 451. 
 
 17 Geo. 3, c. 53., 480. 
 
 18 Geo, 3, c. 60,, 493. 
 21 Geo. 3, c. 66., 480. 
 25 Geo. 3, c. 35., 275. 
 31 Geo. 3, c. 32., 493. 
 34 Geo. 3, c. 75., 501. 
 36 Geo. 3, c. 90., 507. 
 
 38 Geo. 3, c, 16., 496. 
 
 c. 87., 425. 
 
 39 Geo. 3, c. 13., 496. 
 
 c. 22., 496. 
 
 c. 42., 496. 
 
 c. 72., 496. 
 
 39 & 40 Geo. 3, c. 41., 480 
 
 c. 56., 132. 493. 
 
 446, 447. 
 
 496. 
 208. 495. 
 
 C. b8. 
 
 494. 497. 502. 
 
 c. 96. 
 
 c. 98, 
 
 40 Geo. 3, c. 98., 204, 
 
 41 Geo. 3, c. 109., 495. 
 c. 109, s, 16,, 176. 
 
 42 Geo. 3, c, 116., 495. 
 
 43 Geo. 3, c. 75., 495. 509. 
 
 c. 84., 480. 
 
 c. 122,, 496. 
 
 45 Geo. .3, c. 110., 496. 
 
 46 Geo. 3, c. 65., 496. 
 
 47 Geo. 3. c. 8, 8. 2., 509. 
 c. 74., 507. 
 
 48 Geo. 3, c. 73., 501.
 
 STATUTES CITED. 
 
 541 
 
 49 Geo. 3,c. 121, s. 19,40. 
 
 52 Geo. 3, c. 32., 507. 
 c. 102., 491- 
 
 c. 158., 507. 
 
 c. 161., 501. 
 
 53 Geo. 3, c. 141., 496. 
 
 54 Geo. 3, c. 145., 138. 451. 474. 
 
 495, 496. 
 
 c. 156., 498. 
 
 c. 168., 274. 498. 
 
 55 Geo. 3, c. 147-, 450. 480. 
 
 c. 184., 341.499. 
 
 . c. 192., 499. 
 
 56 Geo. 3, c. 52., 450. 479- 
 
 c. 65., 496. 
 
 c. 86., 500. 
 
 c. 141., 480. 
 
 57 Geo. 3, c. 39., 507. 
 
 c. 93., 490. 
 
 c. 99., 480. 
 
 58 Geo. 3, c. 39, (I.), 503. 
 
 c. 46, Cl.), 494. 
 
 c. 96., 500. 
 
 59 Geo. 3, c. 12, ss. 8—17-, 501. 
 c. 80., 509. 
 
 1 Geo. 4, c. 1., 494.498.501,502. 
 
 c. 41, (I.), 503. 
 
 c. 87., 30. 490. 502. 
 
 1 & 2 Geo. 4, c. 15., 503. 507. 
 
 c. 23., 495. 
 
 c. 55., 499. 
 
 c. 92., 450. 491. 
 
 C. 112, (I.), 499. 
 
 c. 114., 503. 507. 
 
 C. 123., 495. 
 
 3 Geo. 4, c. 14., 495. 
 
 c. 92., 496. 
 
 c. 117.. 499. 
 
 c. 123., 503. 
 
 4 Geo. 4, c. 68., 495. 
 
 5 Geo. 4, c. 37., 500. 
 
 c. 41., 499. 
 
 c. 61., 503. 
 
 6 Geo. 4, c. 16., 124,125.210.504. 
 
 C. 16, s. 4., 310. 
 
 c. 16, s. 65., 123. 131. 
 
 6 Geo. 4, c. 16, s. 73. 309. 
 
 c. 16, s. 75., 319. 
 
 c. 25., 504. 
 
 c. 45 & 46., 499. 
 
 c. 74., 489. 507. 509. 
 
 c. 75., 503. 
 
 c. 79., 505. 
 
 7 Geo. 4, c. 7., 493. 
 
 c. 45., 132. 493. 
 
 c. 54., 500, 
 
 c. 57., 503. 
 
 7 & 8 Geo. 4, c. 25., 505. 
 
 c. 75., 495. 
 
 9 Geo. 4, c. 38., 495. 
 
 c. 78., 489. 509. 
 
 c. 94., 505. 
 
 11 Geo. 4, & 1 WiU. 4, c. 20., 369. 
 c. 38., 503, 
 
 504. 
 
 16. 518. 
 
 -c.47.,521. 
 - c. 60, s. 3., 
 
 ■c. 65., 489. 
 
 1 WiU. 4, c. 40., 505. 
 
 c. 46., 27J. 506. 
 
 c. 47., 137. 487. 506. 
 
 c. 60., 16. 176. 260. 421. 
 
 426. 489. 503. 507. 
 
 c. 65., 489. 495. 509. 
 
 c. 65, ss. 3—11., 489. 
 
 c. 65, ss. 12—16., 341. 
 
 423. 493. . 
 
 1 & 2 Will. 4, c. 38., 511. 
 c. 56., 125. 504. 5 1 1 
 
 2 Will. 4, c. 44., 476. 
 
 2 & 3 Will. 4, c. 61., 511. 
 c. 71., 511. 
 
 -c. 100., 511. 
 c. 114., 511. 
 
 3 & 4 Will. 4, c. 27., 231 . 286. 390. 
 511—516. 519. 
 
 c. 27, s. 1., 149. 
 
 ■ c. 27, s. 7., 14. 
 
 c. 27, s. 9., 19. 149. 
 
 c. 27, ss. 10. 1 2. 149. 
 
 c. 27, s. 16., 101.233.
 
 542 
 
 STATUTES CITED. 
 
 3 & 4 Will. 4, c. 27, s. 28., 232. 
 
 c. 27, s. 34., 483. 
 
 c. 27, ss. 36— 38.83. 
 
 140. 224. 311. 
 c. 27, s. 39., 124. 
 
 225. 301. 305. 394. 401, 402. 
 
 c. 27, s. 41., 101. 
 
 c. 27, s. 42., 286. 
 
 c. 42., 517. 
 
 c. 47, ss. 15. 19., 
 
 445. 
 
 c. 74., 78. 81. 
 
 100. 110. 116, 117. 120—125. 
 127—133. 138. 160. 177. 189. 
 191. 193. 200. 203. 213. 2] 6. 
 220. 229. 281. 292. 348. 388. 
 404. 413. 422. 426. 429. 446. 
 476. 492, 493. 517, 518. 
 c. 74, ss. 7 — 11., 
 
 517. 
 
 304. 
 
 477. 
 
 477. 
 
 256. 
 
 -c.74,ss. 8— 12.482. 
 
 - c. 74, s. 14., 300. 
 
 - c. 74, s. 15., 129. 
 -c. 74, s. 16., 97. 396. 
 
 - c. 74, s. 17., 396. 
 
 c. 74, s. 18., 396. 
 
 - c. 74, s. 21., 235. 
 
 - c. 74, ss. 27—31., 
 
 - c. 74, ss. 32. 33., 
 
 - c. 74, s. 39., 139. 
 
 - c. 74, s. 48., 517. 
 ■ c. 74, s. 53., 517. 
 
 - c. 74, s. 55., 504. 
 
 - c. 74, s. 56., 125. 
 c. 74,ss.56,57,&58. 
 
 c. 74, ss. 77—79. 88. 
 
 178. 404. 426—431. 517. 
 
 c. 74, s. 81., 517. 
 
 c. 74, ss. 84, 85., 
 
 517. 
 
 397. 
 
 126. 
 
 517. 
 
 3 & 4 Will. 4, c, 74, s. 87., 517. 
 c. 104, 5Q. 54. 137. 
 
 517. 
 
 c. 105., 86. 89. 234. 
 
 238. 517. 
 c. 106., 62. 138. 149. 
 
 451. 458. 517. 
 c. 106, s. 3., 179. 
 
 218. 241. 
 
 C. 106, s. 10., 452. 
 
 4 & 5 Will. 4, c. 22., 284. 288. 518. 
 
 c. 23., 16. 138. 518. 
 
 c. 23, s. 2., 509. 
 
 c. 29., 498. 
 
 C. 30., 330. 518. 
 
 c. 30, s. 25., 328. 
 
 c. 30, s. 27., 327. 
 
 c. 92., (I) 132, 133. 
 
 138. 160, 161. 177. 189. 191, 
 
 192, 193. 200. 203. 213. 216. 
 
 220. 229, 230. 281. 292. 348. 
 
 389. 413. 422. 426. 431. 492. 
 
 518. 
 c. 92, s. 11., 300, 
 
 301. 304. 
 
 226. 230. 
 
 256. 
 
 c. 92, s. 16, 415. 
 c. 92, s. 22., 213. 
 
 c. 92, ss. 25 & 29., 
 
 c. 92, s. 37., 139. 
 
 397. 
 
 c. 92, s. 68., 178. 
 
 426. 431. 
 
 5 & 6 Will. 4, c. 29., 309. 504. 
 c. 69, s. 3., 501. 518. 
 
 6 & 7 Will. 4, c. 20., 519. 
 
 c. 20, s. 64,, 325. 
 
 c. 64., 519. 
 
 c. 71., 519. 
 
 c. 86., 519. 
 
 c. 110., 498. 
 
 7 Will. 4 & 1 Vict. c. 22., 519- 
 c. 26., 45. 66. 
 
 71. 164. 177. 211. 226. 228. 
 364, 365. 369—387. 424. 499- 
 519.
 
 STATUTES CITED. 
 
 54^ 
 
 7 Wm. 4 & 1 Vict c. 20, s. 2., 485. 
 
 487. 
 c. 26, s. 3., 229. 
 
 499. 
 c.26,ss.7— 12., 
 
 486. 
 
 •c. 26, s. 9., 227. 
 
 372. 
 c. 26, ss. 14 — 
 
 17., 375, 376. 492. 
 
 c. 26, s. 1 8., 378. 
 
 c. 26, s. 1 9., 380. 
 
 c. 26. s. 20., 380. 
 
 c. 26, s. 21 ., 372. 
 
 c. 26, s. 23., 
 
 154. 367. 382. 
 
 26., 366. 385. 
 
 272. 
 
 213. 384. 
 
 33., 386. 
 
 c. 26, ss. 24 — 
 
 c. 26, s. 27., 
 
 c. 26, s. 29., 
 
 c. 26, s. 31., 66. 
 c. 26, ss. 32. 
 
 c.28.,511.519. 
 
 c. 69., 519. 
 
 c.80.,519.521. 
 
 1 & 2 Vict. c. 31., 519. 
 
 c. 48., 34. 520. 
 
 c. 64., 520. 
 
 c. 69., 16. 138. 508. 
 
 520. 
 
 c. 74., 503. 520. 
 
 c. 96., 520. 
 
 c. 107., 520. 
 
 c. 110., 319. 520. 521. 
 
 2 & 3 Viet. c. 11., 126. 309. 504. 
 
 520. 
 
 c. 18., 521. 
 
 c. 29., 521. 
 
 c. 37., 521. 
 
 c. 39., 521. 
 
 c. 60., 521. 
 
 2 & 3 Vict. c. 62., 520, 521. 
 c. 68., 507. 
 
 3 & 4 Vict. c. 15., 520. 
 
 c. 31., 330. 518. 521. 
 
 c. 55., 521. 
 
 c. 82., 520. 
 
 c. S3., 521. 
 
 c. 92., 521. 
 
 c. 111., 520. 
 
 4 & 5 Vict. c. 21., 153. 333. 522. 
 
 c. 35., 522. 
 
 c. 38., 522. 
 
 5 & 6 Vict. c. 18., 501. 522. 
 
 c. 27., 522. 
 
 c. 35., 522. 
 
 c. 45., 498. 
 
 c. 54., 520. 
 
 c. 69., 522. 
 
 c. 85., 520. 
 
 c. 116., 504. 521. 
 
 c. 122., 124., 309. 311. 
 
 504. 511. 522. 
 
 6 & 7 Vict. c. 23., 522. 
 
 c. 37., 522. 
 
 c. 45., 521. 
 
 c. 54., 522. 
 
 c. 65., 498. 
 
 7 & 8 Vict. c. 12., 498. 
 
 c. 55., 522. 
 
 c. 66., 500. 523. 
 
 c. 70., 523. 
 
 c. 76., 7. 16. 23. 25. 
 
 30. 33. 43. 80. 109. 115. 140. 
 
 153. 159. 160, 161. 168. 176. 
 
 180. 185. 192. 197. 203. 213. 
 
 226. 229. 250, 251. 265. 283. 
 
 296, 297. 305, 306. 313. 325. 
 
 327. 330. 334. 341. 354. 357. 
 
 363. 441, 442. 449, 450. 485. 
 
 523. 
 
 c. 90., 311. 
 
 c. 96., 319. 504. 
 
 c. 110., 520. 523. 
 
 c. 111., 520. 523.
 
 AN 
 
 INDEX 
 
 THE PRINCIPAL MATTERS. 
 
 ABEYANCE, 
 
 freehold may not be in, 186. 
 ABOLITION OF TENURES, 
 
 Statute of, 483. 
 ABROAD, 
 
 mode of conveying to a person abroad, 168. 
 ACCEPTANCE, 
 
 of rent, when a confirmation of wife's lease, 432. 
 ACCUMULATION, 
 
 statute against accumulation of rents and profits, 208. 
 ACKNOWLEDGMENT, 
 
 what keeps alive equity of redemption, 232, 233. 
 
 by ferae covert under 3 & 4 Wm. 4, c. 74., 430 — 431. 
 ACQUIESCENCE, 
 
 in breach of trust cures it, 262. 
 ADMINISTRATION, 
 
 de bonis non, 465. 
 
 limited, ib. 
 ADMINISTRATOR, 
 
 interest of in chattels real of intestate trustee, 4G4. 
 ADVOWSON, 
 
 as to curtesy of, 105. 
 
 clergyman cannot purchase so as to be presented on next turn 
 himself, 488. 
 
 N N
 
 o46 IN DFX. 
 
 ADVOWSON— coH/m7^e(/. 
 
 how attecled l»y a parlilion of a joint estate in, 488 
 
 statutes respecting, ib. 
 AGREEMENTS, 
 
 must be in writing, 484, 485. 
 
 of entry under agreement for lease, 21 . 
 " AIRE AND EXECUTORY," 
 
 if these words give a fee, 372. 
 ALIEN, 
 
 if he may stand seised to a use, 243. 
 
 what lands he may hold and purchase, 499. 
 
 statutes respecting aliens, 500. 
 ALIENATION, 
 
 history of, 4G9. 
 
 statutes conferring power of, ib. 470. 
 
 how far restraint upon admissible, 433, 434. 
 ANNUITY, 
 
 and mortgage distinguished, 287, 288. 
 ANNUITY ACTS, 496. 
 APPOINTMENT, 
 
 illusory, the law respecting, 270, 271 . 
 ASSENT, 
 
 to assignment presumed till contrary shown, 319- 
 ASSETS, 
 
 real estate assets for specialty and simple contract debts, 54, 
 137, 517. 
 
 trusts declared to be, 486 
 ASSIGNMENT, 
 
 as to condition restraining, 39 — 41. 
 
 must be of the assignor's entire interest, 343. 
 
 infuturo void, ib. 
 ASSIGNMENT OF TERM, 
 
 should be dated two days before the conveyance of equity of 
 redemption of the fee, 363. 
 ASSIGNOR AND ASSIGNEE, 
 
 how they stand affected as to the covenants in the original 
 lease, 317. 
 ATTENDANT TERM, 
 
 elucidation of doctrine of, 47, etseq. 
 
 trust of, becomes consolidated with the freehold, 49, 50. 
 
 protection of, ib. 51. 
 
 distinguished from a term in gross, 53, 54. 
 
 is real assets, 54, 55. 
 
 should be assigned on every change of ownership, 55. 
 
 must be actually assigned to prevent dower, 101, 102.
 
 INDEX. .')47 
 
 ATTENDANT TERM— continued. 
 
 if purchaser could insist on fine to bar dower, where there was 
 an attendant term, 99, 1 00. 
 
 Mr. Preston's plan for assigning: several terms by way of 
 underlease, considered, 57. 
 
 devise of trust of, must be attested by three witnesses in wills 
 not within 1 Vict. c. 26., 367- 
 ATTESTATION, 
 
 essential in the execution of powers, 273. 
 
 statute respecting the attestation of signature to powers, 498. 
 ATTORNEY, 
 
 See Power of Attorney. 
 AITORNMENT, 
 
 in what cases applicable at the present day, 304. 
 AUTHORITY, 
 
 common law authorities, what, 268. 
 
 appointments under, give a seisin, upon which a use may be 
 limited, 275. 
 
 uses may be declared on the estate created by the exercise of, ib. 
 AUTRE VIE, 
 
 See Estate. 
 AWARD, 
 
 See Distress. 
 
 B. 
 BANKRUPT, 
 
 discharged of lease, when, 319. 
 
 tenant in tail, 131, 132. 
 BANKRUPTCY, 
 
 what conveyance of property an act of, 311. 
 
 assignment in, operates as a recovery, where, 124—126. 
 BARGAIN AND SALE, 
 
 if it conveys a fee without the word " heirs," 143. 
 
 eflFect of conveyance between date and enrolment of, 249 
 
 construed as a covenant to stand seised, when, 353. 
 
 founded on a consideration of money only, 355. 
 
 is an innocent assurance, 357. 
 
 under authorities passes a seisin, 347- 
 
 cannot contain a power of appointment, 357. 
 BARGAIN AND SALE FOR YEARS, 
 
 gives an actual estate without entry, 36, 37, 359- 
 BASE FEE, 
 
 how created, 138, 139- 
 
 if it could be conveyed as an absolute fee, 145. 
 
 confirmed by subsequent fine, 118. 
 
 N N 2
 
 548 INDEX. 
 
 BASE FEE— continued. 
 
 effect of non-claim on, 140. 
 
 may continue for ever, 146. 
 
 cannot support a remainder, 147. 
 
 if tenant of, could levy a fine, 394, 395. 
 
 when merged in the reversion in fee, 119, 120, 397- 
 
 when it is enlarged into an absolute fee, ib. 
 
 when it merged in the inheritance, ib. 
 
 power of alienation over, under 3 & 4 Wm. 4, c. 74., 129, 130. 
 BENEFICE, ECCLESIASTICAL, 
 
 statutes relating to charges on, 480. 
 BEQUESTS OF CHAITELS, 
 
 in words importing estates tail, 384. 
 BLIND PERSON, 
 
 will of, 369. 
 BLOOD, 
 
 if this word gives a fee, 370. 
 BLOSSE V. CLANMORRIS, 
 
 observations on this case, 221, 222, 
 BONA NOTABILIA, 
 
 what, 46s. 
 
 if trust of attendant term is, 369, 468. 
 
 C. 
 
 CESTUI QUE TRUST, 
 
 may in some cases compel a conveyance of the legal estate, 257, 
 
 observations on his tenancy when in possession, 16. 
 
 lands rendered liable to his debts, 488, 517. 
 CHARGE, 
 
 for payment of debts valid, though to an attesting witness, 375= 
 CHARITABLE USES, 
 
 statutes concerning, 490. 
 CHARITY, 
 
 See Schools. 
 CHATTELS, 
 
 bequest of chattels in tail gives an absolute interest, 210, 384. 
 
 not within the Statute of Uses, 243. 
 
 sole corporation cannot take in succession, 449- 
 CHILDREN, 
 
 limitation to, how it operates, 115. 
 
 as to powers of selection between, 275. 
 
 devises to, 382, 383, 386, 387. 
 CHOSES IN ACTION, 
 
 what, 427-
 
 INDEX. 549 
 
 CHOSES IN ACTION— continued. 
 
 husband's interest in wife's, 427. 
 mortgages of, 239. 
 
 churchwardp:ns, 
 
 a corporation of parish lands, where, 501 . 
 CITY LEASES, 
 
 mortgage by deposit of, not an assignment within the covenant 
 not to assign, 323. 
 CLANDESTINE MORTGAGES, 
 
 statute of, 487- 
 COMMIITEE OF LUNATIC, 
 
 empowered to sell and mortgage under the direction of the 
 Lord Chancellor, 509, 510. 
 COMMON, 
 
 tenancy in, 173. 
 COMMON LAW, 
 
 See Use. 
 
 estates created by, and under the Statute of Uses, distinguished, 
 182, 299. 
 
 statutable and common law uses distinguished, 246, 247. 
 COMMON SOCAGE, 
 
 all lands now reduced to the tenure of, 483. 
 COMMON VOUCHEE, 
 
 as to the necessity of his being vouched over, 412. 
 COMPUTATION, 
 
 as to time of, in creation of terms, 32. 
 CONSTRUCTION, 
 
 See Devise. 
 
 of conflicting clauses in deeds, 119, 262. 
 
 in Acts of Parliament, 264. 
 " CONCERNS," 
 
 if this word gives a fee, 374. 
 CONDITION, 
 
 annexed to a particular estate when void, 185, 186. 
 
 devise on condition to pay a gross sum, gives a fee, 379. 
 
 grantee of reversion may take advantage of, 480. 
 
 not to assign, how construed, 322, 323. 
 
 one license is a dispensation of the entire condition, 40. 
 
 restraining alienation by tenant in tail, void, 1 23. 
 
 observations on conditions in leases, 36, &c. 
 
 as to waiver of breach of, 38, &c. 
 CONDITIONAL FEE, 
 
 entail of estate ^wr atUer vie is a, 7S. 
 CONDITIONAL LIMITATION, 
 
 (jualities of this estate, 186, 214, 215.
 
 550 INDEX. 
 
 CONDITIONAL LIMITATION— continued. 
 
 distinguished from an executory devise, 215, 2 1 6. 
 CONFIRMATION, 
 
 what, 336. 
 
 by acceptance of rent, 432. 
 
 there can be none of a void estate, 336. 
 
 operates only on the right on which the confirmor was conu- 
 sant, 336, 337. 
 CONSIDERATION, 
 
 if it may be averred in a covenant to stand seised, 349, 350. 
 CONSTRUCTIVE TENANCIES, 
 
 observations on, 13 — 23. 
 CONTINGENT INTERESTS, 
 
 may be bound by estoppel, 229. 
 CONTINGENT REMAINDER, 
 
 definition of, 180, 
 
 what kinds, 196. 
 
 dependent on a term supported under a conveyance to uses, 
 how, 183. 
 
 there can be none of a term for years, ib. 
 
 requires a freehold estate to support, 115, 189. 
 
 might be barred by estoppel, when, 191. 
 
 destroyed by destruction of particular estate, 193, J 94. 
 
 same by fine, 190, 191. 
 
 how such fine operated, 394. 
 
 in tail, if destroyed by recovery, 191, 192. 
 
 bound by contract for valuable consideration, 192. 
 
 agreement for purchase, best conveyance of, ib. 
 
 may be devised, ib. 
 
 estate of trustees to preserve, should be confined to life of pre- 
 ceding tenant, 194. 
 
 limitation of, must not transgress the rule against perpetuities, 
 185, 186. 
 
 observations on the mode of limiting, 114, 115. 
 
 what species of, cannot be conveyed, 160, 16 1. 
 
 contingency must he potentia propinqua, 185. 
 CONTRACT, 
 
 binds contingent, executory, and expectant interests, 192, 213. 
 
 entry under, creates what tenancy, 12, 20. 
 
 for purchase, if enrolled, whether it operates as a bargain and 
 sale, 355, 356. 
 
 how it operates upon a joint estate, 171. 
 
 its effect at law and in equity, on the estates of vendor and 
 purchaser considered, 355, 356. 
 
 privity of estate and contract distinguished, 314.
 
 INDLX. 551 
 
 COHiTRACT— continued. 
 
 must all be in writing, 484, 485. 
 CONTRIBUTION, 
 
 tenant for life can compel, to renewal fines, 325. 
 CONVEYANCE, 
 
 by common and statute law distinguished, 299- 
 
 every species of, must be in writing, 484, 485 
 COPARCENARY, 
 
 of estates in, 148. 
 
 devise on alienation convert estate in, into a tenancy in com- 
 mon, 148. 
 
 its incidents, 150. 
 
 tenants in, have ajoint and several seisin, ih. 
 
 effect of a release from one coparcener to another, lO. 
 
 if it makes a degree in the title, 150. 
 
 will of, how it operates, 152, 153. 
 COPARCENERS, 
 
 See Estate. 
 
 on petition of advowson becomes seised of each turn separately, 
 488. 
 COPYHOLDS, 
 
 covenant to surrender is executory, 253, 254. 
 
 femes covert and infants may be admitted to, by attorney, 509. 
 
 not within Statute of Uses, 243, 244. 
 
 but power of revocation may be reserved in surrender of, 
 244,245. 
 
 surrender to will, statute respecting, 499. 
 COPYRIGHT, 
 
 statutes extending, 498. 
 CORPORATION, 
 
 cannot stand seised to a use, 243. 
 
 conveyance to, without a license void, 245, 246, 448. 
 
 grants by, must be by deed under their common seal, 448. 
 
 may bind themselves by matter of record, ib. 
 
 aggregate could not levy a fine, ib. 
 
 can only appear by attorney, ib. 
 
 power of the four different kinds of, ib. 449. 
 
 operation of lease and release by, 449. 
 
 an exchange by, how perfected, ib. 450. 
 CORRUPTION OF BLOOD, 
 
 statute taking it away, 496. 
 COURTS, 
 
 decisions of, their influence on the laws, 8. 
 
 stare decisis should be their maxim, 9.
 
 552 INDEX. 
 
 COVENANT, 
 
 not to assign, how construed, 322, 323. 
 
 for renewal, how construed, 323. 
 
 if it runs with the land, 325. 
 
 express and implied covenants distinguished, 314, 315, 316. 
 
 what covenants run with the land, 94, 316, 317. 
 
 to surrender copyholds is executory, 254. 
 COVENANTS FOR TITLE, 
 
 should be with the releasee to uses when, 94, 95. 
 
 covenant to produce deeds, runs with the land for the benefit 
 of the purchaser, 317. 
 COVENANT TO STAND SEISED, 
 
 defined, 347. 
 
 is an innocent assurance, 348. 
 
 may be of a reversion, ib. 
 
 if consideration may be averred in, 348. 
 
 what degree of relationship necessary to support, 350. 
 
 is always voluntary, and not supportable in equity, 35i. 
 
 of the construction of other deeds as, 352, 354. 
 CREDITORS, 
 
 deeds made to defraud, void, 481. 
 CROSS REMAINDERS, 
 
 doctrine of, 199- 
 
 implied, when, ib. 
 
 rules respecting, 200. 
 
 how barred, 200, 201. 
 CROWN, 
 
 if reversion in, may be destroyed by recovery, 221. 
 CROWN DEBTS, 
 
 against a joint-tenant when they bind the estate, 172. 
 
 lands secondarily liable to, 469. 
 
 lands exempted from by Magna Charta, in what cases, ib. 
 CROWN LANDS, 
 
 statutes respecting, 494, 501. 
 
 and acts respecting escheats to crown from its immediate 
 tenants, 502. 
 CURRENCY, 
 
 act respecting, 505. 
 CURTESY, 
 
 what, 104. 
 
 requisites to the creation of, 104, 105. 
 
 of advowson or rent, 105. 
 
 when concurrence of tenant by, in recovery was necessary, 
 105. 
 
 none of a joint estate, 172.
 
 INDEX. 
 
 CY-PRES, 
 
 doctrine of, 275. 
 
 D. 
 
 DAUGHTERS, 
 
 of limitations to, 1 16. 
 DEBTS, 
 
 See Estate in Fee, Charge. 
 
 conveyance for jjayment of, when void, 309, 310. 
 
 devise subject to pay, gives a fee, when, 374, 380. 
 
 devisee rendered liable to debts of his testator, 486, 506. 
 
 heir made liable for his ancestor's debts by stat. 11 Edw. 1., 
 
 471. 
 lands liable for debts of cestui que trust, 486. 
 DECLARATION, 
 
 of uses, conflicting, 119, 262. 
 DE BONIS, 
 
 origin and words of this statute, 471- 
 DEEDS, 
 
 possession of, without notice, gives priority, 258, 259. 
 DEFEASANCE, 
 
 what it is, 345. 
 must be by deed, 41. 
 DEMANDS, 
 
 a word of extensive import, 333. 
 DESCENT, 
 
 of estates of inheritance under the old and new law, 451 — 460. 
 DEVISE, 
 
 construction of words of devise in fee, 370—384. 
 
 to trustees, 381. 
 
 giving express estates tail, 382. 
 
 giving estates tail by implication, 383. 
 
 giving estates tail by implication, altered by I Vict. c. 26., 
 
 211, 212, 384. 
 for life, 385. 
 mode of evading restraints upon devising real estate before the 
 
 statute 27 Hen. 8, c. 10., 246. 
 is ambulatory till the testator's death, 364, 
 must be attested by three witnesses in wills made before 
 
 \st Jainiary, 1838 — 368. 
 by two witnesses since, under 1 Vict. c. 26, ih. 
 every testamentary instrument must be so attested, 369.
 
 554 INDEX. 
 
 DEVISE — continued. 
 
 publication not necessary under the late act, 374. 
 
 revocation of, 364, 376—384. 
 
 residuary devise includes after acquired real estate, 384, 385. 
 
 general, of land includes copyhold and leasehold, 385. 
 
 devise of estates tail, when no lapse, 386. 
 
 bequest of gifts to children, when no lapse, ib. 
 
 for payment of debts, gives a chattel interest, when, and when 
 not, 66, 381. 
 DEVISEE, 
 
 rendered liable to debts, 486, 506. 
 DISABILITIES, 
 
 exemption in Stats, of Limitation, respecting, 482, 513. 
 DISABLING STATUTES, 480. 
 DISCLAIMER, 
 
 by married woman, under 4 & 5 Wm. 4, c. 92., 431. 
 
 by executor and executor trustee, 466. 
 DISCONTINUANCE, 
 
 by tenant in tail, 118. 
 
 its effect considered, 304, 394, 400 — 402. 
 DISCRETION, 
 
 devise to one at, if it gives the fee, 374. 
 DISTRESS, 
 
 entry under, giVes a freehold interest, 66. 
 
 given by stat. 4 Geo. 2, in what cases, 291- 
 
 landlords entitled to, though award not signed, 495. - 
 DISTRIBUTION, 
 
 under 22 & 23 Car. 2, c. 10., 460—463,484. 
 DOE V. PERKINS, 
 
 observations on this case, 26. 
 DOWER, 
 
 what, 85. 
 
 legal estate not in widow before assignment, 87. 
 
 before entry she has only a right, 87. 
 
 might, before 3 & 4 Wm. 4, c. 74, be barred by fine during 
 coverture, 88. 
 
 and may now be barred by deed, ib. 
 
 distinguished from freebench, 89. 
 
 none of a trust before 3 & 4 Wm. 4, c. 105., 90. 
 
 none of a joint seisin, 89, 90, 172. 
 
 of the uses to bar, 92, 93. 
 
 destroyed by exercise of a general power, 93, 28 1 . 
 
 excluded by jointure, 96. 
 
 established by Magna Charta, 469.
 
 INDEX. 555 
 
 DOWER— continued. 
 
 in gavelkind is of a moiety, 103. 
 
 in lands in the British Colonies, 101. 
 
 how avoided hy an attendant term, JOl, 102. 
 
 when mortgagee's wife, entitled to, out of equity of redemption, 
 234—238. 
 
 requisites of this estate, before and since 3 & 4 Wm. 4, c. 105., 
 85,86. 
 
 widow not entitled to her dower and jointure both, 478. 
 
 where it ceases on the determination of the dowable estate, 101. 
 DOWRESS, 
 
 when her concurrence in recovery was requisite, 102. 
 
 may redeem, when, 234 — 238. 
 ''DYING WITHOUT ISSUE," 
 
 effect of these words as applied both to freeholds and lease- 
 holds, 211 — 213. 
 
 E. 
 
 ECCLESIASTICAL BENEFICE, 
 
 charge upon, 480. 
 " EFFECTS," 
 
 when this word in a will gives a fee, 376. 
 EJECTMENT, 
 
 possession can now only be recovered by, 224, 225. 
 
 necessary to obtain possession on elegit, 472, 473. 
 
 as to warrant of attorney to confess jndgment in, 473. 
 ELECTION, 
 
 doctrine of, as to dower, arises by the Statute of Uses, 478. 
 ELEGIT, 
 
 given by stat. Westminster 2nd., 472. 
 
 ejectment necessary to recover possession upon, 472, 473. 
 
 tenant by, has a freehold, 65, 66. 
 EMBLEMENTS, 
 
 doctrine of, at common law, 3. 
 
 lessees entitled to, 60. 
 
 tenant pour autre vie is entitled to, 78, 79. 
 
 tenant for life entitled to, 82. 
 
 surviving joint-tenant is entitled to, 172. 
 
 given to dowress by Statute of Merton, 470. 
 ENABLING STATUTES, 479- 
 ENLARGEMENT, 
 
 when release operates hy, 331, 332.
 
 556 INDEX. 
 
 ENROLMENT, 
 
 of a bargain and sale, within what time it must be made, 357. 
 
 has relation to the date of the bargain and sale, 249. 
 
 of conveyances between the bargain and sale and enrolment, ib. 
 
 if necessary to grant a reversion, 218. 
 
 statute of, confined to estates of inheritance or freehold, 361. 
 ENTAIL, 
 
 See Estate Tail, Tenant in Tail. 
 ENTAILED MONEY, 132, 133, 493, 494. 
 ENTIRETIES, 
 
 of the creation of estates by, 177. 
 
 power of tenants by, ib. 
 
 tenants by, distinguished from joint-tenants, 170, 171, 177- 
 ENTRY, 
 
 under contracts of estates, created by, 20. 
 
 under distress, gives a freehold interest, 66. 
 
 of one coparcener, enured to the benefit of all, in descent before 
 1st Jan. 1834., 149. 
 
 right of, will support a contingent remainder, 181, 182. 
 
 right of, necessary to support ejectment, 224, 225. 
 
 right of, cannot be pursued by actual entry, but only by eject- 
 ment, ib. 
 
 unless the possession is vacant, 225. 
 
 descents which toll the entry abolished, ib. 
 "EQUALLY DIVIDED," 
 
 when these words create a tenancy in common, 173. 
 EQUITABLE ESTATES, 
 
 and legal distinguished, 141, 142. 
 
 and interests in married women, must have been barred by fine 
 or recovery, previously to 3 & 4 Wm. 4, c. 74., 403. 
 
 now by deed under that statute, 404. 
 
 tail, could only be passed by equitable fine and recovery before 
 the above statute, 408. 
 EQUITABLE MORTGAGE, 
 
 what, 236—239. 
 
 if a severance of a joint-tenancy, 165. 
 
 if an assignment within a condition not to assign, 323. 
 EQUITABLE RECOVERY, 
 
 five essential requisites to, 408, 409. 
 
 legal remainder could not be barred l)y, 409. 
 
 was necessary to bar entail in trust, 255, 256. 
 EQUITIES. 
 
 of what, a wife is dowable, 86, 234, 235. 
 EQUITY OF REDEMPTION, 
 
 what, 231.
 
 INDRX. O.X 
 
 EQUITY OF REDEMFnON— co»i/i««f(/. 
 
 barred by twenty years' non-claim, 231, 232. 
 
 unless acknowledged in the interval, 232. 
 
 what amounts to such acknowledgment, ib. 233. 
 
 may be released to the mortgagee, ib. 
 
 dowress entitled to, when, 234 — 238. 
 ESCHEAT, 
 
 for want of heirs, act for remedying, 16. 
 
 a fruit of tenure, 473, 474. 
 
 to the crown from its immediate tenants, but not otherwise, 
 494, 495, 496, 497, 502. 
 
 distinguished from forfeiture, 49G, 497. 
 
 lord, in by, is in the^os^, 188. 
 
 of fee simple lands, 138, 494, 495, 502. 
 ESTATE, 
 
 privity of, and contract distinguished, 314. 
 " ESTATE AND EFFECTS," 
 
 when these words will give a fee, 376. 
 ESTATE IN FEE, 
 
 liable to debts by specialty and simple contract, 137- 
 
 what words necessary to create, in a deed, 140. 
 
 what words necessary to create, in wills, 370, 382. 
 
 would pass in fines and recoveries without the word heirs, 144. 
 ESTATE FOR LIFE, 
 
 See Life Estate. 
 ESTATE POUR AUTER VIE, 
 
 how created, 67. 
 
 in a rent, 76, 77- 
 
 may be conveyed to uses, 78. 
 
 may be limited by way of remainder, 77- 
 
 there may be a possessio fratris or an executory devise o{,ib. 
 
 may be entailed, 77, 78. 
 
 quasi entail and remainders over in, barrable by alienation, 78, 
 
 subject to the operation of the rule iTn Shelly's case, 79. 
 
 devises of, must have been attested by three witnesses before 
 the 1 Vict. c. 26., 70,71, 75, 486, 487- 
 
 declared assets by descent, 73- 
 
 if not devised, goes to next of kin, 70 — 74. 
 
 sustains neither curtesy nor dower, 79. 
 
 is forfeited by waste, ib. 
 tenant of entitled to emblements, 78. 
 ESTATE TAIL, 
 
 See Tenant in Tail. 
 
 what it is, and how created, 108. 
 
 of the gift of the huaband, not barrable by the widow, 97.
 
 558 
 
 INDEX. 
 
 ESTATE TAIL— continued. 
 
 cannot be transferred as such, 117. 
 
 may be converted into a base fee, 117- 
 
 now barrable by deed under 3&4 Wm. 4, c. 74., 127 — 133. 
 ESTATE AT WILL, 
 
 qualities of, 1. 
 ESTOPPEL, 
 
 chance of survivorship cannot be bound by, 169. 
 
 recital operates as, when, 354. 
 ESTOVERS, 
 
 lessees entitled to, 60. 
 EXCESS, 
 
 in the execution of a power of appointment, bad, 280, 
 EXCHANGE, 
 
 what, 327. 
 
 by coparceners, 152. 
 
 by joint-tenants, 167, 168. 
 
 by tenants in common, 174, 175. 
 
 by corporation, how it operates, 449, 450. 
 
 what estates may be exchanged, 327. 
 
 not perfect till infant of full age, 328. 
 
 cannot be between three parties, 329- 
 
 is now usually made by mutual releases, 329. 
 
 if statutable use can be raised on, ib. 
 EXECUTORS, 
 
 having power to sell, if they can convey without heir at law, 
 268. 
 
 limitation of fee-simple lands to, if it gives a fee, 372. 
 
 statute enabling part of them to exercise power of sale, 477, 478. 
 
 statute making them trustees of the undisposed residue, 505, 
 506. 
 
 interest and power of, as to chattels real of a deceased trustee, 
 464. 
 
 before probate, 465.' 
 
 disclaimer of, when only executor, 466. 
 
 when executor and trustee, ib. 
 
 EXECUTORY BEQUESTS, 
 
 of term for years, its effect, 43, 44. 
 EXECUTORY DEVISE, 
 
 five points of difference between it and a contingent remainder, 
 202, 203. 
 
 cannot be destroyed when limited on an estate in fee, 203 
 
 must not exceed the rules against perpetuity, 204. 
 
 after an estate tail, not too remote if limited on an indefinite 
 failure of issue, 212, 213.
 
 INDEX. 559 
 
 EXECUTORY DEVISE— continued. 
 
 on an estate in fee cannot be barred, 213 
 
 when a fine would bar, 394. 
 
 may be bound by estoppel, 229. 
 EXPECTANCY, 
 
 may be bound by estoppel, 228, 229. 
 EX PRO VISIONS VI RI, 
 
 of estates held, 97, 98. 
 
 cannot be barred by the widow, ib, 476. 
 EXTINGUISHMENT. 
 
 when release operates by, 331, 332. 
 
 F. 
 
 " FAMILY," 
 
 if this word gives a fee, 370. 
 FEE-SIMPLE, 
 
 qualities of this estate, 137. 
 FEMALE INFANT, 
 
 bound by what marriage settlement, 422. 
 FEME COVERT, 
 
 equitable estates in, could only be passed by fine or recovery, 
 403. 
 
 except as to her separate estate by exercise of a power, 403. 
 
 but may now be conveyed by deed acknowledged under 3 & 4 
 Wm. 4, c. 74., 429, 430, 
 
 may accept an estate subject to her husband's acquiescence, 
 429. 
 
 her conveyance when void, unless by matter of record, ib. 
 
 she may stand seised to a use, 431. 
 
 may make leases if her husband joins, 431, 432. 
 
 may exercise power, when, 432. 
 
 may dispose of her separate estate as a. feme sole, ib. 
 
 so she may have power to make a will, 433. 
 
 may be admitted to copyholds by attorney, 488, 489, 509. 
 
 when restraint on her power of alienation allowed, 433 — 437. 
 
 such restraint ceases when coverture determines, 436. 
 
 as to trust for her separate use, 434, 435. 
 
 has no power of alienation over reversionary interests in per- 
 sonalty, 440 — 442. 
 
 unless settled for her separate use, 442. 
 
 when she may abdicate her power of appointing trust monies, 
 443.
 
 iiGO INDF.X. 
 
 FEME COVERT— confinved. 
 
 and call for transfer of the fund, 443. 
 
 when not, 444. 
 FEOFFMENT, 
 
 what, 295. 
 
 and bargain and sale distinguished, 300, 301. 
 
 construed as a covenant to stand seised, when, 352, 353. 
 
 effect of, on a qualified fee, 145, 146. 
 
 livery on, is made to termor, when he has the first vested 
 estate, 62. 
 
 not completed till seisin passed, 295. 
 
 construed as a grant, feoffee being in possession, 297- 
 
 of the mode of acquiring a fee by fine and feoffment, 297- 
 FINE, 
 
 now abolished, 388, 429, 516, 517- 
 
 what it was, and how it operated, 388, 389- 
 
 by expectant heir, was an estoppel, 389. 
 
 by tenant for life, how it operated, 81. 
 
 when it let in immediate reversion, 397- 
 
 distinguished from recovery, 398, 399- 
 
 operated by estoppel, when recovery not, 400. 
 
 by a contingent remainder-man, ib. 
 
 its operation after a feoffment, 297- 
 
 preferable to recovery, when, 118, 119, 396, 397, 399. 
 
 if purchaser could insist on, to bar dower where there was an 
 outstanding term, 101, 102. 
 
 levied by infant, when good, 419. 
 
 corporation could not levy, 448. 
 
 words of the Statutes of Fines, 475, 476. 
 
 what advantages of, now obtained by deed, under 3 & 4 
 Wm. 4, c. 74., 405, 406. 
 FORCIBLE ENTRY, 
 
 what is, 225. 
 FORECLOSURE, 
 
 statute of, 490. 
 FORFEITURE, 
 
 does not accrue on attainder or conviction of trustee or mort- 
 gagee, 16. 
 
 and escheat distinguished, 496, 497. 
 
 of fee-simple lands for treason, murder, and felony, 138. 
 
 See Escheat. 
 FORMEDON, 
 
 of the remedy by, 118, 472. 
 FRAUD, 
 
 if it were, for termor to levy a fine, 390, 391-
 
 INDEX. 561 
 
 FRAUDS, 
 
 statute of, 484. 
 FRAUDULENT CONVEYANCES, 
 
 statutes of, 480, 481. 
 FRAUDULENT DEVISES, 
 
 statute of, 487- 
 FREEHOLD, 
 
 of estates of, 61. 
 
 cannot be made to commence infuturo, at common law, 63, 70, 
 220. 
 
 is always greater than an estate for years, 63. 
 
 entry under distress gives a freehold, 66. 
 
 modern meaning of the word, 64. 
 
 strict definition of an estate of, 65, 
 FREEHOLDER, 
 
 possession of termor, is his possession, 61. 
 " FREELY TO BE ENJOYED," 
 
 if these words give a fee, 374. 
 FUTURO, 
 
 assignment in, void, 343. 
 
 fee may be limited to commence in, 205. 
 
 if a remainder maybe granted in, 189. 
 
 G. 
 
 GAVELKIND, 
 
 See Infant. 
 
 dower in, is of a moiety, 103. 
 
 descent in, 148. 
 GIFT, 
 
 what, 306. 
 
 cannot be by mere delivery of possession without a convey- 
 ance, ib. 
 GRANDCHILDREN, 
 
 cannot take under a power to appoint to children, 275. 
 
 where they may take under a bequest to children, 386. 
 GRANT, 
 
 what. 302. 
 
 construed as a covenant to stand seised, when, 353. 
 
 distinction as to things lying in, and in livery, 302, 303. 
 
 when deeds will be construed grants, 353. 
 GUARDIAN, 
 
 may make leases during ward's minority, 423. 
 
 testamentary, his power, 483.
 
 562 INDEX. 
 
 H. 
 
 HALF-BLOOD, 
 
 entitled to distribution with whole blood in equal degree, 460. 
 HEGAN V. JOHNSON, 
 
 observations on the authority of this case, 22. 
 HEIR, 
 
 his concurrence necessary in conveyance by executor, 268. 
 
 how bound by his ancestor's contract in respect of contingent 
 interests, 228, 229. 
 
 if the word heir in a will gives a fee, 371. 
 
 necessary to create an estate of inheritance in a deed, 108, 
 140. 
 
 fee descends to, where executory devise future, 205 — 210. 
 
 is a trustee for devisee, when, 365, 366. 
 " HEREDITAMENT," 
 
 if this word in a will gives a fee, 375. 
 " HOUSE," 
 
 of limitation to, gives a fee, 371. 
 HUSBAND AND WIFE, 
 
 take by entireties, when, 177- 
 
 grant to, and a stranger, the latter takes a moiety, 178. 
 
 husband may assign term held by entireties, ib. 
 
 consequences of the unity of person, 178, 426, 427. 
 
 husband may make a gift to his wife, by what means, 427- 
 
 I. 
 
 ILLUSORY 
 
 appointment, 270. 
 IMPLICATION, 
 
 of surrenders by, 341 . 
 IMPLIED COVENANTS, 
 
 See Covenants. 
 INCLOSURE, 
 
 of exchange under, 327, 328. 
 
 general act respecting, 495. 
 
 commissioners have power to make partition under, 176. 
 INFANT, 
 
 act of Parliament necessary to bind him to a partition, 176. 
 
 may be admitted to copyholds by guardian, 488, 509, 510. 
 
 may exercise power, when, 421.
 
 INDEX 563 
 
 llSlFAyST—contimiecl. 
 
 cannot make binding settlement of his real estate, 422. 
 
 where settlement of personal estates of female infant binding, ib. 
 
 where not, 423. 
 
 his guardian may execute leases, ib. 
 
 maybe seised to a use, 424. 
 
 en ventre sa mere, may take lands, ib. 425. 
 
 might be vouched in a recovery, 424, 425. 
 
 so he may be an executor, 425. 
 
 seised of gavelkind may by custom convey at fifteen, 424. 
 
 might, before 1 Vict. c. 26, make a will of personalty at the 
 age of eighteen, ib. 
 
 may take by purchase, 417- 
 
 so he may appoint an attorney, 417. 
 
 his acts distinguished into those which are void and those 
 which are voidable, 417, 418. 
 
 may waive a conveyance when of age, 418. 
 
 how his agreements bind him, 418, 419. 
 
 how his conveyances bind him, 419. 
 
 a remainder will vest in, though unborn, 425. 
 
 statutes respecting, 488, 507 — 510. 
 INFANT TRUSTEES, 
 
 statutes respecting, 507 — 510. 
 INHERITANCE, 
 
 of real estate under the old and new law, 451 — 460. 
 
 if the word " inheritance" gives the fee in a will, 376. 
 INSOLVENT DEBTOR, 
 
 discharged of lease, when, 318, 319. 
 
 acts respecting, 503, 504, 521. 
 INTERESSE TERMINI, 
 
 what it is, 35. 
 
 none, if term created by way of use, 36, 37. 
 
 if it will support a remainder, 182. 
 
 is not an estate, and will not merge, 35, 312, 313 
 INTEREST, 
 
 accrues de die in c^^em, but rent periodically, 283. 
 " INTEREST " 
 
 if this word in a will gives a fee, 375. 
 INTESTATE, 
 
 distribution of effects of, 460 — 463 
 IRELAND, 
 
 lease for a year dispensed with in, 360. 
 ISSUE, 
 
 " death without leaving issue," different effect of these words 
 in gifts of freehold and leasehold estates, 211. 
 o o 2
 
 564 INDEX. 
 
 ISSUE — continued. 
 
 how barred by a fine, 393 — 396. 
 in a will may mean son and children, 115. 
 of unborn person cannot take by purchase, 207, 208. 
 in tail, how affected by discontinuance, 400, 401. 
 in tail, if they might suffer a recovery after their ancestor had 
 levied a fine, 414. 
 
 J. 
 
 JOINT PURCHASE, 
 
 is in common, when, 159, 160. 
 JOINT-TENANCY, 
 
 See Partnership. 
 
 of estates in, 158. 
 
 can be none in tail general, ib. 
 
 if severed by an equitable mortgage, 165. 
 
 if severed by a mortgage by demise, ib. 
 
 suspended and severed, when, 164 — 167, l7l, 172. 
 
 severance by one of several, the residue joint, 166, 167. 
 
 and tenancy by entireties distinguished, 170, 177. 
 
 no dower, of, 89, 90, 172. 
 JOINT-TENANT, 
 
 will of, void against survivor, 163, 164. 
 
 his will, if made before 1 Jan. 1838, of no effect unless repub- 
 lished after partition, 163, l64. 
 
 secus, if made on or after that day, 164. 
 
 if survivor takes the whole as a new acquisition, ib. 
 
 exchange by, 167. 
 
 of his incumbrances, 164, 165. 
 
 may release to his companion, 167. 
 
 have not a joint seisin to all purposes, 163. 
 
 for lives, observations on their joint and several conveyance, 
 169—172. 
 
 to limit their estate to their joint lives, restraining words are 
 necessary, 170, 171. 
 JOINTURE, 
 
 its requisites, 96, 97- 
 
 if wife evicted from, dower revives, 98. 
 
 as to equitable jointures, 97- 
 
 might be passed during coverture by fine with husband, 100. 
 
 and may now be conveyed by deed, under 3 & 4 Wm. 4, c. 74., 
 100. 
 
 statute of, 476.
 
 INDEX. 565 
 
 JUDGMENT, 
 
 the lien of a judgment creditor not now destroyed by appoint- 
 ment, 93. 
 its lien on estates held in joint-tenancy, 164, l65, 172. 
 JUS ACCRESCENDI, 
 
 operation of this rule, 160. 
 
 K. 
 " KIN," 
 
 limitation of lands in fee simple to, in a will, gives a fee, 372. 
 KINDRED, 
 
 what degree of, necessary to support covenant to stand seised, 
 349, 350. 
 KING, 
 
 can grant by matter of record only, 445. 
 
 might take by fine, ib. 
 
 cannot be seised to a use, ib. 
 
 recovery would not bar reversion in the king, ib. 
 
 "LAND," 
 
 if this word in a will gives a fee, 371. 
 LANDLORD, 
 
 may follow goods fraudulently removed for thirty days, 489, 
 490. 
 LANDLORD AND TENANT, 
 
 statutes concerning, 489. 
 LAND REVENUE, 
 
 of the crown, statutes respecting, 501, 502. 
 LAND TAX CONSOLIDATION ACT, 495. 
 LAPSE, 
 
 how affected by the 32nd and 33rd sections of the 1 Vict. c. 26., 
 386—7. 
 LEASE, 
 
 defined, 312. 
 
 by parol, when good, 6, 7, 484. 
 
 of entry under agreement for, 20. 
 
 of conditions in, 38. 
 
 of the waiver of breach of condition in, 38. 
 
 if it exceed three years it must be in writing, 43. 
 
 renewal of, operates for the benefit of cestui que tr>ist, 509, 510.
 
 566 INDEX. 
 
 LEA S E — continued. 
 
 by husband and wife must be according to the stat. of Hen. 8., 
 431,432. 
 
 by one joint-tenant binds survivor, 166. 
 
 interest created by, is not an estate till entry, 312. 
 
 by tenant in tail, husband and wife, and ecclesiastical persons, 
 good, when, 479- 
 
 what requires registration, 488. 
 
 as to renewal of leases generally, 323 — 325. 
 
 by incapacitated persons, 493, 510. 
 
 guardian may make, during ward's minority, 423. 
 
 of wife's lands, if confirmed by her acceptance of rent when 
 discovert, 432. 
 LEASE AND RELEASE, 
 
 conveyance by, how it operates, 37, 359 — 361. 
 
 when the subject is a reversion, 361. 
 
 adopted in release of an equity of redemption, 234. 
 
 by a corporation, its operation, 449. 
 LEASE FOR A YEAR, 
 
 dispensed with in Ireland, 360. 
 
 and now in England, ib. 
 
 how it operates when the estate is in reversion, 361. 
 LEASEHOLD, 
 
 covenant to surrender, is executory, 253, 254. 
 " LEAVING ISSUE," 
 
 effect of these words as applied both to freehold and leasehold 
 estates, 211, 212, 382, 383, 384 
 LEGACIES, 
 
 See Chattels. 
 
 devise subject to pay, gives a fee, 380. 
 LEGAL 
 
 and equitable estates distinguished, 141, 142. 
 LEGAL REMAINDER, 
 
 could not be barred by equitable recovery, 409, 410. 
 LESSEE, 
 
 may surrender after entry, 41. 
 
 of his remedy against the grantee of reversion, 480. 
 LESSOR, 
 
 and assignee, how they stand affected as to the covenants in 
 the original lease, 319, 320. 
 
 and lessee, how they stand affected as to the covenants in the 
 lease, 317—319. 
 
 and under-tenant, how afl'ected by the covenants in the original 
 lease, 321.
 
 INDEX. 567 
 
 LICENSE, 
 
 is a dispensation of the entire condition, 39, 40. 
 LIFE ESTATE, 
 
 cannot be created infuturo, when, 80. 
 
 what limitations create, ib. 
 
 is forfeited by what acts, 81. 
 
 fine or recovery of, its operation, 81. 
 
 tenant of, may cut underwood and work old mines, 82. 
 
 and fell timber for repairs, ib. 
 
 remedy for a person in reversion, to discover existence of, 484. 
 LIMITATION, 
 
 words of, necessary in deeds, 108, 140. 
 
 former statutes of, 482. 
 
 recent statutes of, 511. 
 LIVERY OF SEISIN, 
 
 presumed after twenty years, 296. 
 
 necessary to the perfection of a feoffment, 295. 
 
 made to termor when he has the first estate, 62. 
 
 distinction as to things lying in livery and thinfis lymg in 
 grant, 302, 303. 
 LOCALITY, 
 
 devise confined to, gives an estate for life only, 374, 378. 
 LUNATIC. 
 
 See Partition. 
 
 statutes concerning, 503, 507 — 510' 
 
 may renew and grant new leases, when and how, i03, 507 — 
 510. 
 
 his estates under the direction of Lord Chancellor, 507 — 510 
 
 trustees late, statute respecting, 507- 
 
 M. 
 
 MANORS, 
 
 coeval with parishes, 474. 
 
 boundaries of, still preserved, 498. 
 MARRIAGE SETTLEMENT, 
 
 how far a voluntary conveyance, 307, 308. 
 MARRIED WOMAN, 
 
 See Feme Coverte. 
 
 may exercise power, when, 432. 
 
 may dispose of her separate estate as a/emesole, 432, 433. 
 
 so she may have power to make a will, 433. 
 
 but cannot devise real estate to her separate use without a 
 power, 404, 405.
 
 568 INDEX. 
 
 MEMORY, 
 
 time of, 470, 471. 
 MERCHANTS, 
 
 are always tenants in common, 160. 
 MERGER, 
 
 of one term in another, 56. 
 
 of the base fee in the reversion, 118 — 120. 
 
 of the trust in the legal estate, 137, 237, 259- 
 
 of outstanding term, by assigning it to trustee under old uses 
 to bar dower, 168, 169. 
 
 intervening estate prevents, 339, 340. 
 MINES, 
 
 tenant for life may work old ones, 82. 
 MONEY LAND, 
 
 statutes respecting, 132, 133, 493, 494. 
 MORTGAGE, 
 
 to two persons, should be by demise, with cross -remainders, 
 when, 158, 159. 
 
 to two, is always in common, ib. 
 
 and annuity distinguished, 287. 
 
 kept alive by what acknowledgment of the equity of redemp- 
 tion, 232, 233. 
 
 though in fee, is a security for money only, 234. 
 
 by demise, how it operates, 37. 
 
 severs joint tenancy, 165. 
 
 priority in, 226. 
 
 tacking what, 227. 
 
 of chases in action distinguished from those of chattels real, 227. 
 MORTGAGEE, 
 
 of the tenure between him and the mortgagor, 13 — 16. 
 
 third mortgagee buying first mortgage obtains priority, when, 
 258. 
 
 for a term buying equity of redemption should date the assign- 
 ment two days before the conveyance, 363. 
 
 need not concur in recovery of equity of redemption, 409. 
 
 statutes relating to heir or devisee of, 507 — 8, 520. 
 MORTGAGOR, 
 
 in possession, observations on his tenancy, 13 — 16. 
 MORTMAIN ACTS, 487. 
 
 See Charitable Use. 
 
 N. 
 
 NATURALISATION, 
 
 restrictive acts respecting, 499, 500.
 
 INDEX. 569 
 
 NEXT OF KIN, 
 
 who entitled under devise to, 372. 
 NEXT PRESENTATION, 
 
 clergyman cannot purchase, so as to be presented himself, 488. 
 NON-CLAIM, 
 
 had no operation unless estates were converted into rights, 402. 
 NOTICE TO QUIT, 
 
 tenant from year to year entitled to, 29, 30. 
 
 parol notice, when sufficient, 31. 
 
 waiver of, by subsequent acceptance of rent, 32. 
 NULLUM TEMPUS ACT, 25, 493. 
 
 O. 
 
 OCCUPANCY, 
 
 of estates by, 70. 
 
 effect of the Statute of Frauds on, 72, 73. 
 
 could not before the 1 Vict. c. 26, pass by will unattested, 
 
 72, 73. 
 as to transmission of, from executor to administrator, 76. 
 there may be a possessio fratris or an executory devise 
 of, 77. 
 OFFICES, 
 
 of freehold interest in, 66. 
 
 PAPISTS, 
 
 when they may take and hold lands, 493. 
 PARCENARY, - 
 
 See Coparcenary. 
 PARDON, 
 
 its effect on forfeiture of lands for felony, 504, 505. 
 PAROL, 
 
 lease, not good beyond three years, 5, 43. 
 PARTICULAR ESTATE, 
 
 condition annexed to, when void, 186. 
 
 and remainder must be created by same deed, 184. 
 
 destruction of, destroys contingent remainder, when, 193, 194, 
 PARTITION, 
 
 its effect on coparceners' prior will, 152, 153. 
 
 by parol, once good, 153. 
 
 when it is a revocation of a prior will, 153 — 157, 163, 164. 
 
 compulsory, now seldom resorted to, except to bind remainder- 
 men, 176.
 
 570 INDEX. 
 
 PARTITION— con^iwMec?. 
 
 infant bound by, only by act of Parliament, 176. 
 
 statutes rendering it compulsory, 478. 
 
 of lunatic's share of real estate, 176. 
 PARTNERSHIP, 
 
 real estate purchased by, if held in common or joint tenancy, 
 174, 175. 
 PAUPER, 
 
 assignment of lease to, not fraudulent, 320. 
 PER AND POST, 
 
 claims in, distinguished, 246. 
 PER TESTES, 
 
 proof of will by, 369- 
 PERPETUITY, 
 
 term infuturo must not exceed the rules of, 34, 43. 
 
 rules against, as applied to executory devises and accumulative 
 trusts of the rents and profits, 205 — 209. 
 
 if the twenty-one years after a life in being can be treated as a 
 substantive term, 206. 
 PERSONAL SECURITY, 
 
 investment of trust funds on, when a branch of trust, 262. 
 PIGGOTT'SACT, 491. 
 POSSE SSIO FRATRIS, 
 
 receipt of rent would make, 62. 
 
 it may be of an occupancy, 77. 
 POSSESSION, 
 
 of the freeholder at common law, 64. 
 
 writ of when necessary, 472, 473. 
 POSSIBILITY, 
 
 when coupled with interest, when not, 228. 
 
 is devisable and assignable in equity as to lands in England, ib. 
 
 as to lands in Ireland, may be conveyed as if vested in posses- 
 sion, and now in England by 7 & 8 Vict. c. "JQ., 229. 
 
 may be released or bound by estoppel, 228. 
 POST AND PER, 
 
 claims in, distinguished, 246. 
 POSTERITY, 
 
 if limitation to, gives a fee, 370. 
 POSTHUMOUS CHILDREN, 
 
 statute respecting, 487. 
 
 of their rights, 424. 
 POWER, 
 
 See Femes Covert. 
 
 what, 268. 
 
 acceleration of, 68.
 
 INDliX. 571 
 
 POWER— continued. 
 
 definition and division of, 268. 
 
 appendant and in gross, distinguished, 269, 280. 
 
 if executor having power to sell can convey without heir at 
 law, 268, 269, 380, 381. 
 
 deed creating and deed exercising, are parts of the same as- 
 surance, 184. 
 
 as to the ceremonies necessary to the execution of, 272, 273, 279. 
 
 statutes respecting, 271, 272, 498, 506. 
 
 execution of, gives legal and equitable estates, when, 273, 274. 
 
 no use can be declared on the estate created by the exercise of, 
 ib. 
 
 unless the power is a common law authority, 275. 
 
 equity will supply the defective execution of, 277. 
 
 should be recited in deed exercising it, 279. 
 
 excess in the execution of a power of appointment, bad, 280. 
 
 infant may exercise it, when, 421. 
 
 donee of, dying before appointment, 277. 
 
 may be exercised hy feme coverte, when, 432. 
 
 precaution on limiting, 273, 274. 
 
 on exercising, 279. 
 
 the mode of preserving, when a tenant for life joins in a settle- 
 ment, 68. 
 
 destruction of, 280, 443. 
 POWER OF ATTORNEY, 
 
 infant may make, where, 419- 
 POWER OF SALE, 
 
 destroyed by a recovery, 413. 
 PRESUMPTION OF SURRENDER. 
 
 doctrine of, as to terras, 48, 55. 
 PRIORITY, 
 
 of mortgages, what, 237 — 239- 
 
 obtained by purchase of first mortgage, 258. 
 PRIVIES, 
 
 how they stood affected by a fine, 392. 
 PRIVITY, 
 
 none between tenant at sufferance and person entitled to pos- 
 session, 24, 25. 
 PRIVITY OF ESTATE, 
 
 necessary to the creation of a use, 246. 
 
 and contract, distinguished, 314 — 322, 
 PRIVITY OF PERSON, 
 
 what necessary to raise a use, 245, 246. 
 PRIVY SEAL, 
 
 may still be resorted to, 420.
 
 572 INDEX. 
 
 PROBATE, 
 
 not necessary of will of real eatate, 368, 467. 
 
 by whom to be granted, 467. 
 
 chain of representation under diflferent probates, 468. 
 PROPERTY, 
 
 if this word gives a fee, 374. 
 PROPERTY TAX, 
 
 consolidation acts, 495, 496. 
 
 protector under 3 & 4 Wm. 4, c. 74., 172. 
 
 his office and powers, 131, 172, 201. 
 PROTECTOR, 
 
 under the 3 &4 Wm. 4, c. 74., 127—131. 
 PUR AUTER VIE, 
 
 See Estate pur auier vie. 
 
 estate by, how created, 67. 
 PURCHASE, 
 
 See Contract. 
 PURCHASER, 
 
 deeds made to defraud, void, 480, 481. 
 
 Q. 
 
 QUALIFIED FEE, 
 
 observations on, 145. 
 
 effect of feoffment on, 145. 
 
 possibility of reverter on, 146. 
 QUASI TENANT IN TAIL, 
 
 of a term, his powers, 45. 
 QUEEN, 
 
 may alien and purchase without the king's consent, 447. 
 
 she might levy a fine, ib. 
 
 and make a will, ib. 
 
 is to most purposes, a feme sole, ib. 
 QUIA EMPTORES, 
 
 observations on the operation of this statute, 473. 
 
 R. 
 
 " RATEABLY," 
 
 creates a tenancy in common, 174. 
 REAL ACTIONS, 
 
 abolished, 140, 224, 516. 
 " REAL ESTATE," 
 
 when these words in a will give a fee, 375. 
 RECITAL, 
 
 is an estoppel to the grantor, 354.
 
 INDEX. 
 
 573 
 
 RECOMPENSE, 
 
 the sole cause of bar, in a recovery, 411. 
 RECOVERY, 
 
 now abolished, 120, 407, 415, 429, 517. 
 
 what it was, and how it operated, 407- 
 
 by single voucher, its effect, 121. 
 
 by double voucher, its effect, ib. 
 
 why preferable to fine when tenant in tail had immediate 
 
 reversion, 117 — 119- 
 its operation on contingent remainder in tail, 191. 
 by tenant for life, its operation, 81. 
 no bar to an executory devise on an estate in fee, 213. 
 if it might be suffered of a rent, 293, 294. 
 
 . of equitable estates tail, 256. 
 
 preferred to fine where tenant in tail had the immediate re- 
 version, 397. 
 could not be suffered in vacation, 399- 
 did not operate by estoppel, where a fine would, 400. 
 destroyed reversion and expanded estate tail into a fee, 412. 
 operated to confirm all prior incumbrances, 413. 
 by tenant in fee operated only as a conveyance, ib. 
 if it might be suffered by tenant in tail after he had levied a 
 
 fine, 402, 414. 
 provable by deed, making tenant to the precipe after twenty 
 
 years, 491. 
 
 no effect on estates for years, 491. 
 
 suffered by infant, when good, 419- 
 
 former powers of alienation by recovery, now exercisable by 
 deed, 127— 133,415. 
 RE-ENTRY, 
 
 as to condition of, 39. 
 REGISTRY ACTS, 488. 
 RELATION, 
 
 See Enrolment. • 
 
 RELEASE, 
 
 what, 331. 
 
 may be to a tenant at will, 11. 
 
 but not to a tenant at sufferance, 24. 
 
 from one coparcener to another, its effect, 151. 
 
 if it makes a degree in the title, 151, 152. 
 
 of its operation by mitter l' estate and mitter le droit, 151. 
 
 by one joint tenant to his companion, its effect, 167. 
 
 five different modes of its operation, 331 — 333. 
 
 of right, cannot be on a condition nor partially, 333. 
 
 and surrender, distinguished, 339.
 
 574 INDEX. 
 
 " REMAINDER," 
 
 if this word in a will gives a fee, 376. 
 
 definition of, 179. 
 
 division of, 180. 
 
 rules necessary to the creation of, 181, 182. 
 
 how affected by 7 &8 Vict. c. 7Q., 180—185, 193 — 198. 
 
 if an inferesse termini will support, 182. 
 
 if right of entry will support, 181, 182. 
 
 right of action will not support, ib. 
 
 criterion of distinction between vested and contingent remain- 
 ders, 180, 181, 184. 
 
 when it destroys a condition annexed to a particular estate, 186. 
 
 if it may be granted infuturo, 189- 
 
 vested remainder may be conveyed at law, ib. 
 
 so now may a contingent remainder, 192. 
 
 but until 7 & 8 Vict. c. 76, as to lands in England was only 
 assignable in equity, ib. 
 
 and reversion distinguished, 218. 
 
 will vest in an infant though unborn, 425. 
 RENEWAL, 
 
 covenant for, not to be inserted in anew lease, 323, 324. 
 
 lessor not bound to renew unless by custom, 323. 
 
 covenant to renew runs with the land, 325. 
 
 contribution on fines for, 324. 
 
 of leases by incapacitated persons, 493, 507 — 511. 
 RENT, 
 
 defined, 283. 
 
 as to payment of, on determination of an estate at will, 4. 
 
 acceptance of, after notice, a waiver of notice to quit, 32, 
 
 when limited for an estate pur outer vie, 76, 77- 
 
 as to curtesy of, 105. 
 
 for equality of partition, is in fee without the word heirs, 144. 
 
 granted by tenants in common, is a rent out of each moiety, 
 173. 
 
 accrues periodically only, and not de die in diein, 283. 
 
 to whom it belongs on death between sun-set and midnight, 
 285. 
 
 of the incidental remedy by distress, 286. 
 
 cannot be reserved on an assignment of the whole term, 286. 
 
 reserved on lease by joint-tenants, tenants in common, and 
 coparceners, 291. 
 
 fine or recovery might be of, 293. 
 
 as to the release of, ib. 
 
 may be granted infuturo, when, 292. 
 
 what if there be successive estates tail in, 293, 294.
 
 INDEX. 
 
 575 
 
 RE^T— continued. 
 
 reserved to grantor on a conveyance in fee, held by re-grant 
 from grantee, 288. 
 RENT-CHARGE, 
 
 distress incident to, 287. 
 REPAIR, 
 
 lessee bound to. 324, 325. 
 REPRESENTATIVES, 
 
 if limitation to, gives a fee, 372. 
 REPUBLICATION, 
 
 when necessary to pass after-purchased lands, 364. 
 " RESIDUE OF REAL ESTATE," 
 
 if these words give a fee in a will, 374. 
 RESIGNATION, 
 
 bonds of, 505. 
 " RESPECTIVELY," 
 
 this word creates a tenancy in common, 173. 
 RESTRAINT ON ALIENATION, 
 
 valid in case of feme coverte, 433. 
 
 but not in other persons, ib. 
 " REVERSION," 
 
 See Feme Coverte. 
 
 if this word in a will gives a fee, 377. 
 
 what is a, 217. 
 
 distinguished from remainder, 218. 
 
 cannot be created by act of the party, 218. 
 
 if grant of for money, requires enrolment, 218, 219. 
 
 how it may be transferred, 145. 
 
 in crown, if it might be destroyed by recovery, 220. 
 
 cannot be granted infuturo at common law, «6. 
 
 fealty and rent incident to, 222. 
 
 usual mode of passing is by lease and release, 302. 
 
 on a term for years, lies in grant, 360, 361. 
 
 grantee of may take advantage of condition, 480. 
 
 charges on, 397, 398. 
 REVOCATION, 
 
 of will, 376— 384. 
 
 when a partition is, 153 — 157. 
 
 power of, maybe reserved in surrender of copyholds, 243 — 245. 
 
 power of, in voluntary settlement, makes it testamentary, when, 
 309. Add. 525, 526. 
 
 when power of, may be reserved in the exercise of a power, 278. 
 RICH. III., 1 Stat. 1, c. 1. 
 
 observations on this statute with reference to uses, 474, 475. 
 " RIGHT," 
 
 if this word in a will gives a fee, 375.
 
 576 INDEX. 
 
 RIGHT, 
 
 what, 224. 
 
 of action, will not support a remainder, 181. 
 is now grantable over as to lands in England, 225, 226. 
 as well as to lands in Ireland, 226. 
 was not devisable before 1 Vict. c. 26., 226. 
 but by that stat. now devisable, ib. 
 may be bound by estoppel, ib. 
 release of estates, and rights distinguished, 331. 
 release of, cannot be on a condition nor partially, 333. 
 of entry, will support a vested remainder, 181. 
 RIPLEY V. WATERWORTH, 
 
 effect of this case fully considered, 71, 74. 
 
 SCINTILLA JURIS, 25], 252. 
 SCHOOLS, 
 
 statutes relating to sites of, 522. 
 SEAL, 
 
 if stamp equivalent to, xxviii. 
 " SEED," 
 
 if this word gives a fee, 370. 
 SEISIN. 
 
 actual, of heir without receipt of rent, 62. 
 
 destruction of, destroys, shifting or contingent use, 251. 
 
 use and trust, distinguished, 141. 
 
 livery of seisin, when presumed, 296. 
 SELECTION, 
 
 power of, when useful, 116. 
 SEPARATE ESTATE, 
 
 discrepancy of cases as to, xxvii. 
 
 where a married woman may dispose of, as 2, feme sole, 403. 
 404, 433—444. 
 SETTLEMENTS, 
 
 See Infant. 
 
 of a testamentary character, 309. Add. 525, 526. 
 SEVERANCE, 
 
 See Mortgage — Equitable Mortgage. 
 
 of joint-tenancy, 165. 
 
 of equitable severance of a jointure by contract for sale, 171. 
 " SHARE," 
 
 if this word in a will gives a fee, 377. 
 
 "share and share alike," create a tenancy in common, 174.
 
 INDEX. 
 
 577 
 
 SHELLY'S CASE, 
 
 observations on the rule in, 110. 
 
 the eight requisites to its operation. Ill — 112 
 
 its operation on resulting use, IQG. 
 SOCAGE, 
 
 guardian in socage, entry of, 149. 
 SON AND CHILDREN, 
 
 may mean issue in a will. 115. 
 SONS. 
 
 of limitations to, in tail, 1 15. 
 SPECIAL OCCUPANTS, 
 
 See Estate piir aider vie, 70 — 73. 
 SPECIAL TAIL, 
 
 by what words created, 108, 109. 
 SPECIALTY DEBTS, 
 
 how they attach on fee simple estates, 137, 517- 
 SPRINGING USES, 
 
 destroyed by the destruction of a seisin, 251. 
 STAMP, 
 
 if equivalent to seal, xxviii. 
 STAMP ACTS, 499. 
 STATUTE, 
 
 tenant by, has a freehold, G5. 
 STATUTES, • 1 
 
 as they relate to conveyances, 469 — 523. ". 
 
 STOCK, 
 
 if limitation to gives a fee, 370 
 STRICT SETTLEMENT, 
 
 limitations in, 109, 115. 
 STUDY, 
 
 course of, xxx. 
 SUBINFEUDATION, 
 
 its effects, 470. 
 " SUCCESSORS," 
 
 when necessary to give a fee to a corporation, 141. 
 
 who entitled under a devise to, 372. 
 SUFFERANCE. 
 
 observations on the tenancy by, 23 — 28. 
 
 tenant by, does not claim adversely, 24. 
 
 the King's tenant is an intruder and cannot hold by suffer- 
 ance, 25. 
 SURRENDER. 
 
 what, 339. 
 
 cannot be hifuturo, 341. 
 
 by implication, 1 i, 35, 42, 341. 
 p P
 
 .578 INDEX. 
 
 SURRENDER— cow/mweJ. 
 
 should contain words of assignment, 42. 
 
 of presuming surrenders of outstanding terms, 48 — 57. 
 
 of copyholds, power of revocation may he reserved in, 243, 244. 
 
 wherein it differs from a release, 339. 
 
 intervening estate prevents, ib. 
 
 livery not necessary to complete, 340. 
 
 infants, &c., enabled to surrender leaseholds, by I Wm. 4, 
 c. 65., 509, 510. 
 
 to will of copyholds, dispensed with by stat. 55 Geo. 3., 499. 
 SURVIVOR, 
 
 limitation to, creates contingent remainder, 159, 160. 
 
 cannot appoint, where power given to husband and wife, 270, 
 271. 
 SURVIVORSHIP, 
 
 chance of, cannot be granted to a stranger, 169, 
 SUSPENSION, 
 
 See Severance. 
 
 of joint tenancy, 165, 166. 
 
 T. 
 
 " TEMPORAL ESTATE," 
 
 if these words in a will give a fee, 377. 
 TENANCY BY ENTIRETIES, 
 
 See Entireties. 
 
 and joint-tenancy, distinguished, 177. 
 TENANCY FROM YEAR TO YEAR, 
 
 favoured, 11, 12. 
 
 observations on this estate, 29- 
 
 never raised by implication if it will work a forfeiture, 4, 12. 
 
 arises by construction, when, 12, 30. 
 
 transmissible to personal representatives, 29. 
 TENANT, 
 
 holding over, after notice to quit, liable to double yearly value, 
 489. 
 
 giving notice and holding over liable to double rent, ib. 
 TENANTS IN COMMON, 
 
 See Partnership. 
 
 of the creation of their estate, 173. 
 
 have separate freeholds, ib. 
 
 words in devises and bequests creating, ib. 
 TENANT IN FEE. 
 
 cannot bar an executory devise, 212, 213.
 
 INDEX. 579 
 
 TENANT FOR LIFE, 
 
 is entitled to emblements, 82. 
 
 without impeachment of waste, bound to repair, 82, 83. 
 
 holds of the reversioner, 473. 
 
 recovery by, was void, 481, 482. 
 
 but might join in recovery without a forfeiture, ib. 
 
 may be produced once a-year, 483, 484. 
 TENANT TO THE PRECIPE, 
 
 deed making, proveable by recovery after twenty years, 491 
 TENANT PURAUTER VIE, 
 
 See E.STATE/>«r outer vie. 
 
 effect of his continuation in possession after death of celles que 
 vie, 26. 
 TENANT RIGHT, 
 
 gratuitous on landlord's part, 324, 325. 
 TENANT BY SUFFERANCE, 
 
 observations on, 23, 24. 
 
 does not hold adversely, 27, 28. 
 TENANT IN TAIL, 
 
 of discontinuance by, 118. 
 
 effect of his alienation, 117 — 124. 
 
 his power of alienation under 3 & 4 Wm. 4, c. 74., 127, &c. 
 
 condition to restrain his alienation void, 123. 
 
 assignment on bankruptcy of tenant in tail in possession passes 
 the absolute fee, if in remainder, a base fee, 125. 
 
 where joint commission issues against tenant for life and 
 tenant in tail in remainder, has the effect of a separate 
 commission, ib. 
 
 powers of commissioners and assignees over estates tail of 
 bankrupt, 125, 131—132. 
 
 if he might suffer a recovery after a tine, 402. 
 
 holds of reversioner, 473. 
 
 after possibility of issue extinct, qualities of his estate, 106. 
 
 privileges of, 107. 
 TERM, 
 
 of years, nature of, 29. 
 
 as to requisites to creation of, 32. 
 
 certainty in the commencement of, ib. 
 
 may be limited to commence infutnro, 34. 
 
 but must not e.xceed the rules of perpetuity, ib. 
 
 entry necessary to perfect, 35. 
 
 created by use gives a vested estate, 36. 
 
 and it should seem by devise, 37. 
 
 may be devised, but if entailed, vests absolutely, 43. 
 
 there may be a remainder of, by way of trust, 44. 
 p p 2
 
 580 INDEX. 
 
 TERM — continued. 
 
 origin and progress of terms for years, 45, 46. 
 
 attendant, elucidation of doctrine of, 47 — 60. 
 
 its effect as a protection, 49, 50. 
 
 against the dower of vendor's wife, 99, 100. 
 
 one term will merge in another, 56. 
 
 incidents to, 60. 
 
 held by entireties, husband may assign, 178. 
 
 there can be no contingent remainder of, 184. 
 
 should be assigned to attend on a purchase, 257, 367. 
 
 trust of, would not before 1 Vict. c. 26, pass by a will not duly 
 executed, 368. 
 TERMOR, 
 
 possession of, is possession of freeholder, 46, 61. 
 
 of his acquiring the fee by fine and feoffment, 389 — 392. 
 " TESTAMENTARY EFFECTS," 
 
 if these words in a will give a fee, 376. 
 THELLUSON'S ACT, 495. 
 
 observations on, 208. 
 TRANSMUTATION OF POSSESSION, 
 
 conveyances, operating by, where, 264 — 267, 295, 302, 347, 359. 
 TRUST, 
 
 See Equitable Estate. 
 
 no dower of, in what cases, 86, 89, 90. 
 
 seisin and use distinguished, 141. 
 
 executory and executed, distinguished, 144, 253. 
 
 precautions on creating, 260. 
 
 breach of, by investment of money in wrong funds, 262. 
 
 all declarations of, must be in writing, 486. 
 
 in tail, might have been barred by equitable recovery, 255. 
 
 may now be barred by deed under 3 & 4 VVm. 4, c. 74., ih. 
 TRUSTEES, 
 
 See Escheat, Forfeiture. 
 
 of their tenancy when out of possession, 16 — 19. 
 
 to preserve contingent remainders, their estates should be con- 
 fined to the life of preceding tenant for life, 114. 
 
 their estate vested, 340. 
 
 when they advance money, estates should be limited to them 
 in joint -tenancy, 158, 159. 
 
 of- lands held of the King, dying without heirs, Crown em- 
 powered to appoint a trustee, 502. 
 
 incapacitated, persons empowered to convey for, 507. 
 
 statute respecting, ib. 
 
 devise to, 3S1.
 
 INDEX. '581 
 
 U. 
 
 UNBORN, 
 
 limitation for life valid, to a person, 207. 
 UNDER LEASE, 
 
 if a breach of a condition not to assign, 39. 
 
 distinctions between it and an assignment, ib. 40. 
 
 avoided by breach of condition in original lease, 42. 
 UNDERTENANT, 
 
 how he is affected by the covenants in the original lease, 321. 
 USES, 
 
 See Chai'ter ON Uses, 240. 
 
 trusts, and seisin distinguished, 246. 
 
 observations on the statute of, 240. 
 
 requisites to its operation, 240, 241. 
 
 the technical ojieration of the statute explained and illustrated, 
 245, 264—267, 299, 302, 347, 359. 
 
 statute of, how it operates on wills, 242. 
 
 at common law and by statute distinguished, 245 — 248. 
 
 when uses result, 114, 254. 
 
 cannot be a use limited upon a use, 247- 
 
 may commence infuturo, 251. 
 
 conflicting declarations of, 262, 263. 
 
 raised by exercise of powers, springing, 274. 
 
 VENDOR, 
 
 a trustee for purchaser, when, 366, 367. 
 VESTED, 
 
 when an estate is, 180. 
 VOID AND VOIDABLE ESTATES, 
 
 distinguished as to confirmation, 335, 
 
 acts of an infant considered, 417 — 420. 
 VOLUNTARY, 
 
 conveyance, its operation as against purchasers and creditors 
 distinguished, 307. 
 
 settlement, power of revocation in, if it makes it testamentary, 
 308, 309. '-^dd. 525, 
 VOUCHER, 
 
 of common vouchee) 302, 304, 410, 412.
 
 582 INDEX. 
 
 w. 
 
 WARRANT OF AITORNEY, 
 
 its origin and effect, 472. 
 WARRANTY, 
 
 observations on lineal and collateral, 122, 123. 
 
 clause of, was usually added to feoffments, 300, 301. 
 WASTE, 
 
 tenant pour outer vie is subject to, 79. 
 
 by tenant for life, its consequences, 82. 
 
 what if he be without impeachment for waste, 83. 
 
 punished by fine and treble damages, 470. 
 
 statute giving damages for, ib. 
 WAIVER, 
 
 of notice to quit by subsequent acceptance of rent, 32. 
 WIDOV/, 
 
 prohibited from levying a fine of her jointure lands, 396. 
 WILL, 
 
 publication, an essential ceremony to its validity, before 1 Vtct. 
 c. 26., 368. 
 
 but not now necessary under that statute, 374. 
 
 of real estate need not be proved, 369. 
 
 what words in, give an estate in fee, 370 — 382. 
 
 statutes relating to, 478, 485, 519- 
 
 infant above eighteen might make a will of personalty, pre- 
 viously to 1 Vict. c. 26., 424. 
 
 but now by that statute no will Can be made by infant under 
 twenty -one, 424. 
 
 married woman may have power to make, reser,ved to her on 
 marriage, 433. 
 
 witness to, cannot take any benefit under, except as a creditor. 
 375, 376. 
 
 an executor may attest the will, 376. 
 
 a person who cannot write may attest, 37 1 . 
 
 a blind person should have a clear knowledge of the contents 
 of his will, 369. 
 
 revocation of, 376 — 384. 
 
 and codicil, are parts of the same assurance, 184. 
 WILL, ESTATE AT, 
 
 what, 1 . 
 
 may be created by express agreement, 7, 12. 
 
 acceptance of, when an implied surrender, 11. 
 
 if mortgagor holds as tenant by, 13. 
 
 a remainder cannot be limited upon, 11
 
 INDEX. 58S ' 
 
 WITNESS, 
 
 to will, cannot take a benefit under, where, 375. 
 incompetency of, does not invalidate his attestation under 
 
 1 Vict. c. 2G., 374. 
 creditor may be a witness to a will, 376. 
 " WORLDLY SUBSTANCE," 
 
 if these words give a fee,. 374. 
 
 YEARS, 
 
 See Term. 
 
 as to the commencement of a term for, 32. 
 YEAR TO YEAR, 
 
 See Tenancy. 
 
 tenancy from, favoured, 3, 12. 
 
 observations on this species of tenancy, 29. 
 
 JHK END. 
 
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