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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OE CALIEORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 MMiMMbail^ifa
 
 RULES 
 
 Interpretation of Deeds. 
 
 WITH A GLOSSARY. . 
 
 HOWARD WARBURTON ELPHINSTONE, M.A. 
 
 ACTHOB OF A " PRACTICAL INTRODUCTION TO CONVEYANCING," AND ONK OP THE AUTHORS OF 
 "key and ELPHINSTONE'S COMPENDIUM." 
 
 ROBERT F. NORTON, LL.B., B.A., Lond. 
 
 JAMES WILLIAM CLARK, M.A. 
 
 FELLOW OF TRINITY HALL, CAMBRIDGE, 
 
 AIX OF LINCOLN'S INN, BAREISTERS-AT-LAW. 
 
 WITH NOTES AND REFERENCES TO AMERICAN CASES 
 
 BY 
 
 H. F. STITZELL. 
 
 PHILADELPHIA : 
 THE BLACKSTONE PUBLISHING CO: 
 
 1889.
 
 Entered according to the Acts of Congress, in the year 1889, by the 
 
 Blackstone Publishing Company, in the office of the 
 
 Librarian of Congress, at Washington, D. C. 
 
 T 
 
 %%J 
 
 (2)
 
 
 NOTE. 
 
 We suggest to our patrons that, to facilitate the labor of the 
 Judges and Reporters, they cite the TOP PAGING of books 
 of our SERIES, and add [TEXT BOOK SERIES.]— ^c/^itor. 
 
 S48575 
 
 (3)
 
 (4)
 
 PREFACE. 
 
 The object of this book is to present in a moderate 
 compass the rules for the interpretation of deeds. The 
 only rules of law which are discussed are those whicli . 
 show what is the subject-matter to be interpreted, or what 
 evidence is admissible as to the meaning of the words em- 
 ployed, and those which are at once rules of law and rules 
 of construction. 
 
 A rule of construction may always be stated under the 
 following form : — ''If a given proposition, or phrase. A., 
 may mean B., C, or D.. it must be taken to mean B. 
 when occuring in a deed of a particular nature, unless the 
 circumstances of the parties or the context exclude that 
 meaning." 
 
 A rule of law exists independently of the circumstances 
 of the parties, and is paramount to any intentions that 
 they have expressed. 
 
 Careful consideration of the reported cases will lead the 
 reader to a conclusion for which he is, perhaps, unpre- 
 pared, viz., that the law of England does not require deed'8 
 to be expressed in technical language, but that any words 
 are proper which render the meaning clear ; the only ex- 
 ception being that estates of inheritance could not be 
 created in deeds before 1882 without the word "heirs," 
 and cannot be created in deeds after 1881 without the 
 words "heirs," "fee simple," or "tail." 
 
 (5)
 
 VI PREFACE. 
 
 The question whether a judicial decision on the con- 
 struction of words in a will is a safe guide to the construc- 
 tion of similar words occurring in a deed is one of consid- 
 erable practical importance. Statements will be found in 
 some cases {ex. gr. per Wood, V.-C, in Leiols v. Rees, 3 
 K. «& J. at p. 147) that in construing a de'ed the courts 
 are guided by the strict legal meanings of the words, un- 
 less such meanings create a manifest contrariety or con- 
 tradiction, but that a greater latitude is allowed in the 
 construction of a will, because a testator is supposed to 
 be uiops consilil. If this view is, as it appears to be, 
 correct, it would throw great difficulty in the application 
 of cases on the construction of wills to the construction 
 of deeds, unless perhaps where the will has manifestly 
 been settled by a person skilled in the employment of 
 legal language. 
 
 There is a further objection to the application of cases 
 on wills to the construction of deeds. The reader who 
 has fully grasped the meaning of the rule {10, post, p. 
 47) as to the employment of extrinsic evidence to deter- 
 mine the meanings of words, will perceive that, as the 
 circumstances of the parties to a deed necessarily differ 
 from those of a testator, there is no reason to suppose 
 that words when used in a deed bear tlie same meanings 
 as wlien used in a will. There are a few exceptional 
 cases, as in the case of a voluntary deed, or where a tes- 
 tator has clearly put himself in the same position as that 
 of parties to a deed of a certain class. But, with these 
 exceptions, the difference in the circumstances of the 
 parties makes it unsafe to employ decisions on Avords used 
 in a will for the determination of the meaning of similar 
 words employed in a deed. For this reason I have, un- 
 less in the exceptional cases, founded the rules in this
 
 PREFACE. VU 
 
 book on deed cases only, and have only cited will cases 
 as illustrating the rules. 
 
 Much scattered information on the subject-matter of 
 this book will be found in Coke's Institutes, Sheppard's 
 Touchstone, Cruise's Digest, Bythewood's Conveyancing, 
 and Davidson's Precedents, and the Treatises on specific 
 parts of the law, such as those on Powers and Leases ; but, 
 owing to the absence of any systematic treatise on the 
 subject of deeds generally, the task of collecting the cases 
 and deducing the rules from them has been the labour of 
 many years. 
 
 About live years ago, when I had written the rough 
 draft of this book, I was fortunate enough to obtain the 
 co-operation of Mr. Norton, and shortly afterwards that 
 of Mr. Clark. With their assistance this book has been 
 completely rewritten, with the addition of many cases 
 that had escaped me. I venture to hope that, owing 
 mainly to such assistance, few cases of importance have 
 been omitted, and that no serious error likely to mislead 
 the i^ractitioner who refers to the cases cited will be found 
 in ihe text. 
 
 At the request of several gentlemen I have added a 
 short Glossary of some of the words occurring in deeds, 
 with the purpose rather of indicating the authorities than 
 of discussing moot points. I should feel grateful to any 
 gentleman who would give me further information as to 
 the meanings of doubtful words. 
 
 Students are advised to master the 3rd, 4th, and 8th 
 chapters before they read any other part of this book; 
 and, having regard to the difficulty of the subject-matter, 
 to remember the words of that great lawyer Lord Mans- 
 field. "'The more we read, unless we are very carefnl to 
 distinguish, the more we shall be confounded." Taylor
 
 VIU PREFACE. 
 
 d. AtJcyns v. Horde, 1 Burr. 60, at p. 110; S. C, 2 Sm. 
 L. C. 
 
 Owing to unavoidable causes this book has taken a long 
 time in passing through the press, and consequently sev- 
 eral recent cases of importance, as well as some older 
 cases which had escaped my attention, will be found in 
 the Addenda. 
 
 H. W. ELPHINSTONE. 
 
 Lincoln's Inn, July, 1885.
 
 CONTENTS. 
 
 [The paging refers to the [*] pages. ] 
 
 PAGE 
 
 Preface v 
 
 Table of Cases xxi 
 
 CHAPTEK I. 
 
 Extrinsic Evidence to vary Deed . . 
 
 Extrinsic evidence inadmissible to vary terms of deed, 1; Simul- 
 taneous deeds, 6; Counterparts, 7; Subsequent conduct, 8; Cus- 
 tom, 9. 
 
 CHAPTER II. 
 
 Alterations 17 
 
 Presumption as to time of alterations, 17; Deeds partly in print 
 and partly in writing, 18; Pencil alterations, 18; Material altera- 
 tions by party, 19; "What is a material alteration, 19; Altered 
 deed evidence of rights resulting from its execution, 19; A de- 
 fendant may give altered deed in evidence, 19; Eule applied to 
 instruments not iinder seal, 23; Alterations -with consent of all 
 parties, 25; Blanks filled up, 26; Presumption of fresh execution, 
 27; Alterations after execution by some parties, 27, 28; Transfers 
 in blank, 28; Cancellation of seal of one party, 30; Material 
 alterations made by a stranger, 31; Immaterial alterations, 32; 
 Fraudulent alterations, 33; Alterations made by mistake or acci- 
 dent, 34. 
 
 CHAPTER III. 
 
 Expressed Intentions 36 
 
 Kxpressed intentions only regarded, 36; Word "Intention," 
 meaning of, 36; General purpose effected notwithstanding inepti- 
 tude of form u.sed, 40; Examples of instruments construed as cove- 
 nants to stand sei.sed, 41 ; as grants, 42; as releases, 43; as bargains 
 and sales, 43; as feoffments, &c., 44; as lea.ses, 44; and as appoint- 
 ments, 45; Power executed by deed not referring to it, 45. 
 
 (9)
 
 X CONTENTS. 
 
 [The paging refers to the [*] pages.! 
 
 CHAPTER IV. 
 
 PAGE 
 
 Extrinsic Evidence as to Meaning of Words 47 
 
 Words to be taken in primary meanings, 47; Extrinsic evi- 
 dence admissible to determine the primary meanings, 47; "Pri- 
 mary meaning " explained, 48; Technical words, 48; Unexpressed 
 intentions, 49; Evidence of circumstances, 50, 51; Foreign lan- 
 guage, 56; Illegible document, 56; Dictionary, 56; Intei-pretation 
 of mercantile contracts, 57; Technical legal terms, 62; Practice 
 of conveyancei-s. 63 (n. ); Rules applied to wills, 63; "Word de- 
 fined by Act of Parliament, 65. 
 
 CHAPTER V. 
 
 Ancient Documents 66 
 
 Contemporaneous interpretation, 66; Word "usage," ambiguity 
 of, 67; Contcmporanea expositio applied to statutes, 68; Debates 
 in Parliament, 68; Evidence of usage, 68; Modern usage, 70; 
 Usage admissible only where words ambiguous, 74. • . 
 
 CHAPTER VI. 
 
 Intrinsic Evidence 76 
 
 Deed to be construed so as to be consistent with itself, 76; Omis- 
 sions, transpositions, and repugnancies, 78; False grammar, 78; 
 Incorrect spelling, 78. 
 
 CHAPTER VII. 
 
 Miscellaneous General Rules 84 
 
 The expression of that which is implied has no effect, 85; ex- 
 cept that it may alter the construction of a subsequent clause, 89; 
 Express provisions exclude implication, 89; Repugnant clauses, 
 91; Words to be taken against the person using them, 93; except 
 in the case of the king, 99; Election by grantee, 100. 
 
 CHAPTER VIIL 
 
 Ambiguities, Equivocations, Inaccubacies 102 
 
 Ambiguities and inaccuracies defined and distinguished, 102, 103; 
 Patent ambiguities, 104; Deed void for uncertainty, 104; Ambi- 
 guity determined by election, 105; Equivocations, 107; Intrinsic 
 evidence to resolve equivocation, 107; Direct evidence of inten- 
 tion, 108; Verbal or parol evidence, 109; No direct evidence of 
 intention to explain patent ambiguity, 112; Effect of general 
 joined to particular statement, 113; Inaccuracies, 114; Where 
 
 10
 
 CONTENTS. Xi 
 
 [Tho paging refers to the [•] pages.] 
 
 PAGE 
 
 neither whole description nor any part applies. 114; Where part 
 of the description renders it certain what is intended, 115; Where 
 part applies to one, part to another, but whole to no object, IIG. 
 
 CHAPTER IX. 
 
 Date, Parties 119 
 
 Deeds take effect from delivery, 119; "From henceforth," 120; 
 Deed retained by grantor. 1"20; Concealed deed, 120; Effect of want 
 of notice to trustees, 121; Escrow, 121; Deed bearing impossible 
 or erroneous date, or no date, 122; Reference to "date," how 
 construed, 123; "From the day of, &c.," 124; Description of 
 parties, 125; Name of baptism, 125; Name of firm, 126; Class 
 name, 126 ; Corporation, 127: False additions to parties, 127; 
 Reputed wife, 128; Divorced woman, 128; Change of surname, 
 128. 
 
 CHAPTER X. 
 
 Recitals 129 
 
 Variance between recitals and operative part, 129, 132; Descrip- 
 tions, general and specific, 128, 132; Recital of agreement for .sale, 
 134; Parcels, 134; Omission of name from operative part, 136; 
 Covenants, i;>7; Releases, 137; MisrecitaLs, 139; Estoppel by re- 
 cital, 140; Recital creating covenant, 143; Power exercised by 
 recital, 144; Other effects of recital, 144. 
 
 CHAPTER XL 
 
 Consideration, Receipt 145 
 
 Proof of consideration not .stated in the deed, 145; Dealings with 
 wile's land, 148; Voluntary conveyance of leasehold, 149; Con- 
 sideration st'ited in deed to be paid by A. but reall}' paid by B., 
 149: Consideration necessary for raising a n.se, 149; Covenants to 
 .stand .seised, 149; Effect of receipt in body of deed, and of en- 
 dorsed receipt, 150, 151; Receipt qualified by recital, 151: En- 
 dorsed receipt, 152. 
 
 CHAPTER XII. 
 Parcels 153 
 
 General and special descriptions explained, 153; " Non accipi 
 del)ent verba in demon.strationem falsam qua; competunt in lim- 
 itationem veram," 156; "Falsa demonstratio non nocet," 1.57; 
 Descriptions by locality, occupancy, enumeration, map. inventory 
 or schedule, tenure, quantity, boundaries, c^c. 159 r< i^cq.; Vill 
 and Parish, 168 fn.); Ejusdem generis, "And also." &c., 173; 
 
 11
 
 Xii CONTENTS. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Exception of something not ejusdem generis, 177: Rule applied 
 to statutes, 177; Whether leaseholds or copyholds can pass by as- 
 surance proper to convey only freeholds, 178; Soil of public road 
 and adjoining strips, 179; Footpaths, 179; Strips communicating 
 with commons, 182; Bed of river, 182; Private roads,, 183; Streets 
 in towns, 184; Party walls, 184; Creation of easements and profits 
 h prendre, 184; Rights of way, 184. 
 
 CHAPTER Xm. 
 
 General VVoeds — All Estate Clause 186 
 
 Things legally appendant and appurtenant, 186 : ' 'General words, ' ' 
 meaning, 186 (n.); "Appendant" and "appurtenant," meaning, 
 187; " Appurtenances, "188; "Appurtenant," secondary meaning. 
 188; General words, how restricted, 189; Grant of part of tene- 
 ment, 189; "Continuous and apparent" ea-sements, 189; "Neces- 
 sary" easements, 189; Way of necessity granted or reserved by 
 implication, 191; Ways of convenience, 192; Cesser of way of ne- 
 cessity, 192; New road over adjoining tenement, 194; Road for 
 sole use of house, 193; Ancient road over adjoining tenement. 
 194; Suggested rule as to ways over tenement retained by gran- 
 tor. 196; Effect of express grant of right of way, 198; No implied 
 reservation to grantor, 199; Except as to reciprocal easements, 
 200; And as to ways of necessity, 200; Extent of implied way of 
 necessity for grantor, 201; Contemporaneous sales, 202; When 
 way across tenement passes by grant of adjoining tenement, 192, 
 194, 196; Revivor of right of common extinguished by unity of 
 possession, 203; "All estate" clause, 204: Conveyance of "es- 
 tate," "right," or " interest." 204; Conveyance by a trustee who 
 has also beneficial interest, 206. *. 
 
 CHAPTER XIV. 
 Habendum 210 
 
 Oflfice of premises and habendum explained. 210; Thing granted 
 named in premises only, 211; named in habendum only, 212; No 
 habendum, 213; Grantee named in habendum only, 214; Grant 
 to A., habendumto A. and others, 214; No express estate limited 
 in premises, 215; Express estates limited in both premises and 
 habendum, 217 ; Different estates limited in habendum and 
 premises, where some further act besides delivery is necessary to 
 perfect one of them, 221. 
 
 CHAPTER XV. 
 
 Estates of Inheritance 223 
 
 Limitations "to A. and his heirs," 224; to A. "in fee simple," 
 224; A. "and his issue," 225; A. "and his successors," 225; "Heir" 
 
 12
 
 CONTENTS. XIU 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 in the singular, ^^o; '-Heir or Heirs," •225; Omission of "his," 
 225; Word '"heirs" rejected, 225; Fee simple without the word 
 "heirs," 22G; The King. 226; Corporations, 22(j; Releases, 227; 
 Fee by reference, 227; Partitions, 227; Fines and recoveries, 228; 
 Vesting declaration under the Conveyancing Act, 1881, s. 34. 228; 
 " Heirs " of a deceased person, 228; " Heirs " of the grantor, 228; 
 " Heirs " of a living person who is not the grantor, 229; A. " or " 
 his heirs, 230; Qualification added to heirs, as " heirs male," &c., 
 230; Estates Tail, 231; A. "and the heirs of his body," 231; 
 " Heir " (in the singular) "of body," 232; Words "of his body " 
 implied or supplied by context, 233; Limitation in default of 
 heirs of A. to B., who is capable of being A.'s heir, 234; Designa- 
 tion of person from whom the heirs are to proceed, 235; " Begot- 
 ten," "To be begotten," 236; Estate tail created by reference, 
 236; "Male" supplied by context, 236; Limitation to heirs of 
 body of deceased person, 237; of living person, 237; "A. and the 
 heirs of the body of B.," 237; Limitation to husband, or to wife, 
 and the heirs of the bodies of husband and wife, 239; To A. and 
 B. and the heirs of their bodies, 239; In marriage settlement 
 " heirs " or "heirs of the body " extended by parenthesis, &c., to 
 all children, 240; Fee simple conditional in copyholds, 241; Rule 
 in Shelley's Case, 242; Where estate of ancestor mt y determine in 
 his own lifetime, 242; Ancestor taking estate of freehold by im- 
 plication, 243; Copyholds. 243; Limitations to heir and ancestor 
 must be in the same instrument, 243; Deeds exercising powers, 
 243; One limitation legal, the other equitable, 244; Words added 
 to limitation to ancestor, 244; Words of limitation or distribution 
 added to limitation to heirs, 244 ; Conditional and determinable fees, 
 245; Limitation to "A. and his heirs" for years, 245; to "A. and 
 his heirs" for life of B., 246; Estate gained by entry under power, 
 246; Lease, or grant of rent till certain sum is paid, 246. 
 
 CHAPTER XVI. 
 
 Death without Issue '^■+' 
 
 Death without issue, 247; Gift over on death before the happen- 
 ing of a certain event, "or" without issue, 248; J>imitation to A. 
 and his heirs, followed by a gift over on death " without issue," 
 or "without heirs of his body," 248; f^state for life not enlarged 
 by gift over on death without issue, 249; Fee simple, with gift over 
 " in default of such i.ssue," or " without leaving issue," 250; Per- 
 ■ sonalty, 250; "Such issue" proceeding from spcciiied body, 250; 
 Limitation to children, with gift over in default of such issue, 
 251. 
 
 13
 
 XIV CONTENTS. 
 
 [The paging refers to the [•] pages. ] 
 
 CHAPTER XVII. 
 
 PAGE 
 
 Heirs as Purchasers 252 
 
 Limitation to A. for life, remainder to " heir," or to " heir of his 
 body," in the singular, 252; Remainder to heir of his body, and 
 the heirs, or heirs of the body, of such heir, 252; " Heir,-" in sing- 
 ular, construed "heirs," 253; Heir at common law takes under 
 limitation to "heirs," or "heir," as purchasers, 253; "Heirs" 
 as purchasers with superadded qualification, 254; "Heirs male of 
 the body," as purchasers, 254, 255; "Heirs of the body" may 
 mean children, 256; " Heirs " applied to personalty, 257; Substitu- 
 tionary gift of personalty to "heirs," 257, 258; "Heirs of the 
 body," applied to personalty, 260; Trust of personalty for A. and 
 heirs of his body, or A. for life, remainder to heirs of his body, 
 260; Heirs of body, "their executors," &c„ 261; Executory trust, 
 261 ; Heirs of wife's body taking husband's property, 261; Trust 
 of personalty in remainder for heirs of body, 262. 
 
 CHAPTER XVIII. 
 
 Uses: Estates of Trustees 264 
 
 Use, how created, 264; Use on use, 267; To use of A. yielding rent 
 to B., 267; Where grantee to uses and cestui que use are the same 
 person, 267; Where grantee to uses and cestui que use not same 
 person and use limited less than estate of grantee to uses, 270; 
 Limitation in tail to uses, 271; When trustees take legal estate, 
 271; Active and passive trusts, 271; Separate use, 272; " Pay to 
 or permit to receive," 273; Legal estate of trustees not enlarged 
 or diminished by nature of trusts, 273; Limitation to trustees and 
 their heirs cut down by context, 275, 276; Equitable limitations, 
 276; Leaseholds for lives, 278. 
 
 CHAPTER XIX. 
 
 Joint Tenancy: Tenancy in Common 279 
 
 Joint tenancy', how created, 279; Under Statute of Limitations, 
 280; Limitations to corporations, or a corporation, and an ordinary 
 person, 280; To husband and wife, 280; And stranger, 281; Joint 
 purchasers, 281 ; Partnership property, 281 ; Mortgagees, 282; 
 Executory instruments, 282; Where estates of different natures, 
 282; Joint tenancy for life, with several inheritances, 282; Where 
 one grantor incapable, 283; Benefit of survivorship, 283; A. and 
 B. and the survivor, and heirs of survivor, 283; Joint life estate 
 and joint limitation to heirs, 283; " Heirs of A. & B.," 283; Ten- 
 ancy in common. 283; Words implying distinct interests, 284; Ex- 
 press gift to survivor, 284; "Survivors" construed "others," 285. 
 14
 
 CONTENTS. XV 
 
 [The paging refers to the [•] pages.] 
 
 CHAPTEK XX. 
 
 PAGE 
 
 Estate by Implication: Resulting Trusts 286 
 
 Keversion iu grantor, 286; Kesultiug uses to grantor Avhere no con- 
 ■ sideration and no declaration of uses, 286; where uses declared do 
 
 not exhaust whole fee simple, 2S7; where use limited not to com- 
 mence till grantor's death, resulting use lor life to grantor, 287; 
 Difference between limitations in remainder to heirs special and to 
 heirs general of grantor, 288; Xo resulting estate in person not 
 owner of estate granted, 288; Cross remainders not implied, 289; 
 Cross remainders of accrued shares, 291 ; Executory instruments, 
 294 ; Kesulting trusts, 294; Trust for wife " during coverture," 294. 
 
 CHAPTER XXI. 
 
 Estates for Life: Separate Estate 295 
 
 Limitations to "A.," "A. and his assigns," "A. and his issue," 
 &c., 295; Indefinite gift to A. not enlarged by direction that A. 
 shall pay money, or by fee being given to trustees, 296; Words 
 creating separate use, 296; Whether separate use arises immedi- 
 atelj', 299; Whether it revives on second marriage, 300; Restraint 
 on anticipation, how imposed, 301; Separate estate alienable with- 
 out express power, 302; Restraint on anticipation annexed to jiower 
 only, 302; Restraint on anticipation annexed to reversionary fund, 
 303. 
 
 CHAPTER XXII. 
 
 Next of Kin: Executors: Personal Representatives . . . 304 
 "Xextof kin," meaning of, 304; Next of kin of A. "ot his own 
 blood and fomily," 306; Next of kin take as joint tenants, 306; 
 Realty limited to next of kin, 307; Next of kin according to the 
 statute take as tenants in common, 307, Husband, or wife, does not 
 take as next of kin, 307; Next of kin, when ascertained, 309; Next 
 of kin, "ofnameof B., 311; Gifts to the "executors of A." or to 
 "A., with remainder to his executors," 312; "Executors" and 
 "next of kin" distinguished, 313; "Executors or administra- 
 tors" meaning " nextof kin," 314; "Executors or administrators" 
 of A. take for benefit of A.'s estate, 314; "Personal representa- 
 tives" of A., trust for, 316; "Legal representatives," 317; "Rep- 
 resentatives" applied to realty, 317; Realty limited to "A. and 
 his executors," &c., 317. 
 
 CHAPTER XXIII. 
 
 Issue: Children: Marriage 31S 
 
 " Issue" and "children " always words of purchase, 318; Limi- 
 tation of realty to " issue " gives life estates only, 319. " Is.sue,." 
 
 15
 
 XVI CONTENTS. 
 
 [The paging refers to the [*j pages. ] 
 
 PAGE 
 
 meaning of, 320; Cut down to " children ' ' by context, 323; " Male 
 issue" meaning ''sons," 326; "Issues females, " 326; " Issue" re- 
 stricted to "children" by reference to parent, 326; restricted in 
 one clause only. 327; "Children," meaning of, 327; may mean 
 grandchildren, &c., 327; Trust for children "living at," a par- 
 ticular time includes a child en ventre at that tinae, 327; "To be 
 born " or " begotten," 328; "Children " prima facie means legiti- 
 mate children, 329; Meaning of "legitimate," 329; "Children" 
 may mean illegitimate children, 330; Gifts to unborn illegitimate 
 children, 331; Illegitimate child en iJcw^re, 331; "Marriage," "sol- 
 emnized," meanings, 331; Divorce, 332; Marriage never .solemn- 
 ized, 332; "Under coverture," 333; Death "unmarried," 333; 
 "as if she had died intestate and unmarried," 334; " vpithout 
 being married," 335; " without having been married," 335. ■ 
 
 CHAPTER XXIV. 
 
 Eldest Son: Younger Children 337 
 
 "Eldest child," 337; "Younger children," 337; "Eldest" 
 meaning child succeeding to estate, 338; Time at which "eldest" 
 ascertained, 338; "Younger children," children by second mar- 
 riage, 338; eldest daughter taking estate, 343; eldest child daugh- 
 ter not succeeding to estate, 344; Eldest son tenant for life only, 
 345; Younger child succeeding to estate, but not under same set- 
 tlement, 345; Eldest son who has disentailed, 347; Where pro- 
 visions made for children nominatim, 347 ; Interests indefeasibly 
 vested before time of distribution, 349; In loco parentis, 350; Where 
 no estate limited to eldest child, 352; Children "besides" or 
 "other than" an eldest, 354. 
 
 CHAPTER XXV. 
 
 Vesting of Gifts to Classes 355 
 
 " Vest," defined, 355; " Class " defined, 355; Gift to class and A. 
 where A. is, and where A. is not, a member of it, 356; " The chil- 
 dren of A. and B.," 357; " Heirs of A. and B.," 357; Immediate 
 gift to clas.s, 357; to "A. and his eldest child," 358; Gift in re- 
 ' mainder to class, 358; Gift by direction to pay, &c., 361; Gift con- 
 fined to members of class living when remainder falls in, 361 ; Vest- 
 ing of express interests in default of appointment, and notwith- 
 standing existence of power, 361; Implied interests in default of 
 appointment, 363; where the power is testamentary only, 365. 
 
 16
 
 CONTKNTS. XVll 
 
 [The paging refer? to the [•] pages.] 
 
 CHAPTER XXVI. 
 
 PA OF. 
 
 PORPIOXS '^^'' 
 
 Portions charged on land, when vested, 3G8; where no time ap- 
 pointed for payment. 369; where payable on event personal to 
 portionist. 372; Payment postponed Jor convenience of estate, 375; 
 or of per.sonality fund, 377; Portions out of " rents and profits." • 
 37!); Annuities, 380; Portions charged on annual rents and profits. 
 381; Portions not charged on land, 382; when vested. 383; where 
 the only gift is in the direction to pay, &c., 391; Maintenance 
 clauses, 393; Divesting of portions, 394; Gifts over. 394; Death 
 before parents. 396; When children must survive parents, 396, 405;, 
 Indefeasible vesting at twenty-one or marriage, notwithstanding 
 death before parents. :i96; where no reference to age or marriage, 
 402: Death before portion "payable," &c., 403; ''Leave" con- 
 strued "have." 404; Substitutionary gift to issue of child dying 
 before distribution, 405; Kecapitulation, 406. 
 
 CHAPTER XXYII. 
 
 Covenants 40 r 
 
 "Covenant" explained. 407; Executory and executed covenants 
 distinguished, 408; Covenant operating as assignment, 408; As- 
 sl"-nment operating as covenant, 408; Xo .set form of words neces- 
 sary to create covenant. 409; "upon condition that." 411; Proviso 
 411; Covenants implied from wh)le deed. 411; Words of exception, 
 412; Recital creating covenant. 415; Admission of debt by recital, 
 418; Clauses introduced by a participle, or words "to bo." 419; 
 Breach of trust, when a specialty debt, 421; Covenants in law by 
 words "demise," "let," "give," "grant," 422, 423; As.sign 
 nient implying covenant, 424; Implication negatived by express 
 covenants, 424; Agreement under seal to execute deed which is 
 to contain covenants, 425; Construction against the covenantor, 
 425; " It is hereby agreed and declared," 426; Exception to ab- 
 solute covenant, 427; Proviso repugnant to, or limiting, personal 
 liability. 427; Covenants with penalty or licjuidated damages. 
 427; Specific performance or injunction where penalty or liqui- 
 dated damages, 430. 
 
 CHAPTER XXVIII. 
 
 Covenants whether Joists or Several 434 
 
 Liability, whether joint or several. 434; Several liability under a 
 covenant joint in form, 434; Liability under covenants implied in 
 law, 436; P.enefit of covenant whether joint or several, 437; Where 
 one of several covenantees has no beneficial interest. 413. 
 
 2 IN-Tr.KI'KKTATION OF DKEDS. 17
 
 XVIU CONTEXTS. 
 
 [The paging refers to the [*] pages.] 
 
 CHAPTER XXIX. 
 
 PAGE 
 
 Mutual Covenants 445 
 
 Covenants dependent and independent distingnished, 445; Con- 
 ditions precedent, 445; Whether covenants are independent is a 
 question of construction, 446; Causes of dependency, 448; Depen- 
 dency owing to Time fixed for performance of covenants, 448; 
 Covenant by defendant to be performed (1) before, 448, (2) after, 
 454, (3) simultaneously with, 458, the covenant by plaintiff; Ar- 
 bitration clauses, 457; Dependency arising from nature of cove- 
 nants, 4!50; Covenant by plantift, the whole, or part only, of the 
 consideration for the covenants by the defendant 460; clauses in- 
 troduced by participles, or by the words "To be " 464. 
 
 CHAPTER XXX. 
 
 Qualified Covenants and Covenants foe Title 466 
 
 Covenant general or absolute qualified by context, 467; Covenant 
 followed by words " but that," &c., 469; Whether qualifying 
 words in one covenant afiect other covenants, 479; Covenants for 
 title, 473; Covenant for quiet enjoyment, 474, 481; Covenant 
 against incumbrances, 481 ; Disturbance by suit in equity, 482, 
 "Without interruption, disturbance," &c., means lawful inter- 
 ruption, disturbance, &c., 483; Except where interruption, &c., 
 are by covenantor "'and his heirs," or, "and his executors," 485; 
 or by specified persons, 486; Disturbance caused by covenantee's 
 own acts, 486; Construction of special words: "Acts," "means," 
 "procurement," "neglect," '^default," "permit and suffer, " 487; 
 Who are persons "claiming under " the covenantor, 491 ; things 
 appurtenant, &c., 493; Covenants for further assurance, 493; 
 Estoppel, 499. 
 
 CHAPTER XXXI. 
 
 Covenants to Settle Property 500 
 
 Agreement that wife's other or after-acquired property " shall be 
 settled," binds both husband and wife, 501; Agreement that 
 one party shall settle property does not bind the other, 501 ; Ef- 
 fect of recitals, 505; Covenant to settle wife's property by hus- 
 band only, 506; by both husband and wife, 507; Exception of 
 property settled to wife's separate use, or " otherwise settled," 
 508; No expression of wish of person giving property to wife can 
 exempt it from operation of covenant, 508; Property over which 
 the wife has mere power of appointment, 510; "Shall become 
 entitled." means during the coverture, 510; "Is now entitled," 
 or " at the time of the marriage shall be entitled," 511; Words 
 
 18
 
 CONTENTS. XIX 
 
 [The paf^ng refers to the [•] pages.] 
 
 PAGE 
 
 descriptive of fntnre acquisition only, 512; ^vhere •vrife becomes 
 entitled to pro pert}- to which slie had no title at the time ciC the 
 marriage, 514; property to which wife was entitled (1) in posses- 
 sion, 514, (2) in remainder, 518, at the time of the settlement 
 or marriage; Keversionary interest foiling into possession after 
 determination of coverture, 519; vested reversionary title accruing 
 during coverture, 521; Contingent interest to which wife is en- 
 titled at date of settlement or marriage, 522, 523; Contingent in- 
 terest acquired during coverture, 524; Malins' Act, 524; ISIarried 
 Women's Property Act, 1882, 525; Life interests, 525; Property of 
 named minimum value, 526; Covenant to settle particular in- 
 terest by a person who acquires a different interest, 527; Infant 
 wife, 529; Election by wife, when of age. to confirm covenant, 
 529; Covenants to settle husband's property, 530; Covenants to 
 leave by will, 530; Miscellaneous, 530. 
 
 CHAPTER XXXII. 
 
 Marriage Articles 532 
 
 Trusts executed, 532; Executory, 532; Direction to convey, 533; 
 " to settle as counsel shall advise,'' 533; In executory trusts tech- 
 nical language may be disregarded, 534; In marriage articles the 
 children of first taker to take by purchase, if possible, 535; But 
 tlie contrary may appear by the context, 537; Where one parent 
 alone could not defeat settlement, 537; Where articles settle part 
 .strictly, 537; Where limitation to heirs of the bodj' follows lim- 
 itations to sons Jis purchasers, 537; Discrepancy between articles 
 and settlement, 538; Construction of executory trusts in A-olun- 
 tary deeds or wills, 539; " Heirs male of the body," 542; " Is.sue 
 male," 542; "Heirs female of the body," 542; "Heirs of the 
 bodj'," 542; " Issue," 542; Order of estates tail of children, .542; 
 "Issue, whether son or daughter," 545; "Child or children of 
 marriage," 545; "Nearest relative in male line,'' 546; Miscel- 
 laneous, 546; Life estates, 546; Covenant to settle chattels bj' ref- 
 erence to limitations of realty, 547; Articles to settle personalty, 
 547; Interests of vrife, 548; of children, 548; Ultimate trn.sts, 
 .549: " Issue," meaning children, 549; General power of appoint- 
 ment cut down to power to ap^wint among children, 552; What 
 powers should be inserted in the settlement, 552; Aliens, 556. 
 
 CHAPTER XXXIII. 
 
 Glossaby 557 
 
 Abatement, 5.57; Acre, .5.58; Advantage, .5.58; Advow.son, Advo- 
 cation, 558; Ager, 5.59; Allodium, 559; Altaragium, .560; Amer- 
 
 19
 
 XX CONTENTS. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 ciament, 560; Ancient Demesne, 5G0; Annats, or Annates, 560; 
 Appropriation, 561; Approvement, 561; Assart, 561; Aumoue, 
 561; Average, 561; Balk, 562; Baronia, 562; Beast Gate, 562; 
 Beneficium, 562; Benerth, 563; Benework, or Boonwork, 563; 
 Bercaria, or Berquarium, 563; Berewica, or Berewit, 563; Boe- 
 land o» Bookland, 563; Boon, 563; Boonwork, 563; Borde, Bor- 
 darii, Borduanni, 563; Bordlands, 563; Boscus, 563; Bote, 563; 
 Bovate, Bovata Terrse, Oxgang, or Oxgate, 564; Bruera, Brna- 
 rium, Bruyrium, 564; Butt, 564; Cablish, 564; Cantaria, 564; 
 Cantred, or Kan tred, 564; Carucate. or Carve, 564; Castle, 565; 
 Cattlegate, 565; Cell, Cella, 565; Chase, 565; Chauntry, 566; 
 Chimin, Chiminage, 566; Church, 566; Common, 566; Common 
 Fields, 566; Con mote, or Commote, 567; Consuetudo, 569; Coopa- 
 tura, 568; Cope, 568; Cottage, Cotagium, 568; County, 568; 
 Court, 568; Croft, 568; Cursus Ovium, 579; Curtilage, 569; Cus- 
 tom, Consuetudo, 569; Day-work, 569; Debitum, 573; Deforce- 
 ment, 570; Delfs, 570; Demand, 570; Demesne, Demaine, Do- 
 main, Dominicum, Terrae Dominicales, 570; Denariata, or Dena- 
 riatus Terraj, 572; Dene, 572; Deodand, 572; Dismes, 573; Dis- 
 seisin, 573; Dole, 573; Domain, Dominicum, 570; Driftway, 573; 
 Duty, Debitum, 573; Erw, 573; Essart, 573; Estover, 573; Es- 
 tray, 573; Estrepement. 573; Fair, 574; Faldage, 574; Faldagium, 
 582; Fallow, 574;- Fardella, Ferdella, Fardendela. Fardingdela, 
 Farding, Ferdingel, Farthindel, Farundel, Ferlingus, 574; Farm, 
 574; Farthing l^and. 575; Farthing of Land, 575; Fee Farm, 575; 
 Ferry, 575; Fine, 575; Firma Burgi, 575; Fishery, Piscary, 576; 
 Foldcourse, Sheepwalk, Cursus Ovium, 579; Forera, 580; Fore- 
 shore, 580; Forest, 580; Franchise or Liberty, 581; Frankfold- 
 age, Faldagium, 582; Fother, 583; Frankpledge, 582; Freewar- 
 ren, 582; Frith or Frydd, 582; Furlong, Ferlingus. or Ferlingnm, 
 582; Gabel, Gavell, Gablum, Gaulum, Gabellum, Gabettum, 
 Galtellethnm, Gavelletum, 582; Gale, 582; Gorce, Gors, or Gort, 
 583; Gore, Fother, or Pyke, 583; Grange, 583; Greenhue, 627; 
 Ground, 583; Haia, 583; Halymote, 584; Ham, 584; Hamlet, 
 584; Haybote, 584; Hedge, 584; Herbage, Vestura Terra?, 585; 
 Hereditament, 586; Hide or Hyde, 587; Honour, 588; House, 588; 
 Hundred, 588; Husbandland, 589; Inland, 590; Kantred, 564; 
 Kidel, or Kiddle, 590; Knights fee, 590; Lammas Meadows, 590; 
 Land, 590; Law Day, 591; Leet. 592; Liberty, 581; Librata Ter- 
 rse, 592; Linces, 592; Lot Meads, 592; Lynches or Linces, 592; 
 Manor, 592; Manurable, 595; Market, 595; Meadow, 595; Mease, 
 Mese, 596; Measures of Land, 596; Messuage, 602; Mill, 603; 
 Mines and Minerals, 603; Next Presentation, 605; Noka, 605; 
 Nummata Terrte, 605; OfiFerings, Oblations, Obventions, 605;Obo- 
 lata Terrse, 605; Occupation, 605; Oxgang, 606; Pannage, or 
 Pawnage, Pannagium, 606; Park, Parens, 606; Particata Terra>, 
 
 20
 
 CONTENTS. XXI 
 
 [The paging refers to the [" ) pages.] 
 
 PAGE 
 
 G06; Party-wall, (596; Pasture, "607; Pathway, fil5; Pawnage, 
 606; Perch, Glo; Perquisites, 615; Picle, Pickle, Pightel, Pitle, 
 Pigtle, 616: Pickage, 620; Pischary, 616; Ploughland, 616; Pool, 
 616; Porca, 616; Pound, 616; Precaria>, 616; Prime-way, 616; 
 Purliew, 616 ; Purpresture or Pourpresture, 617 ; Pyke. 683; 
 Quadrantata terroe, 617; Quarentena ternc, 617; Rectory, 617; 
 Reuts, 617; Reut.simd Profits, 619; Ridge, 619; Selda, 619; Selion, 
 620; Sheepheaves, 620; Sheep-walk, o79; Soke, 620; SoUar, 620; 
 Solidata terrai, 620; Solinus, 620; Stiche, 621; Stint or Stinted 
 Pasture, 621; Stray, 621; Tenement, 621; " That is to say, " 622; 
 Toft, 622; Toll to the Fair or Market, 622; Toll Traverse and 
 Thorough Toll, 623; Township or Vill, 624; Trees, 626; Turbary, 
 627; Utiand, 627; Velindre, 627; Vert, Viridis, or Greenhue, 627; 
 Vestura terrae, 585; Vill, 628; Virgate or Yardlaud, 628; Viva- 
 rium, 628; Viver or Vivier, 628; Warectum, Wareccum, or Varec- 
 tum, 628 ; Warren, 629 ; Water, 629 ; Way, 630 ; W^ike, 630; 
 Wista, 630; Wood, 631; Yardland, 631; Yoke, 631. 
 
 21
 
 C22)
 
 TABLE OF CASES. 
 
 Abbot of r. Benteley . 622. G2r, 
 
 of Strata Mercella's Case . oio, 
 5G0, 573, iiSl 
 
 [The paging refers to the [*] pages, j 
 
 I Alpass r. Watkins 236,24.") 
 
 I Alsager v. Close 35 
 
 Altham v. Anglesey 268 
 
 Altham's Case . ."111,112,157,205. 
 216, 218, .570 
 
 Abbott V. Burton 229 Alton Woods, Case of ,572 
 
 Miildleton 36,t>.S 
 
 Abraham r. Twigg 231 
 
 Ackland r. LutU-y ..."... 124 
 
 Ackroyd v. Smith 185 
 
 Adams v. Beck 346 
 
 V. Frye 34 
 
 V. Gibiiev 423 
 
 re, and Kensington Vestry 31(J 
 and Lambert's Case . 566 
 
 V. Steer 42 
 
 V. Tertenants of Savage 287. 
 288 
 
 Addington v. Clode 613 
 
 V. Mellor 3:',2 
 
 Addis r. Power 12; 
 
 Addison v. Otway ...... 7. 168 
 
 Adey v. Arnold 431 
 
 Adsetts r. Hives 27 
 
 Agar V. George ...... 512. 524 
 
 Agricultural Cattle Insuraiue Co. 
 
 r. Fitzgerald 25 
 
 Ailoffe V. Scrimpshire 4(t 
 
 Ainslie, AV 627 
 
 Aldous V. Cornwell 32, 33 
 
 Alexander v. Crosbie 1.32 
 
 V. Young 302 
 
 Alger r. Parrott 316 
 
 Allan r. Backhouse 38') 
 
 Allen i. Babington 465 
 
 and Palmer's Case . . 22!).243 
 
 Jle :!.-,(! 
 
 r. Taylor '.'02 
 
 V. Thorp 31 1 
 
 Alleync v. AlU-ync 120 
 
 All;;ood r. (iibson 579 
 
 .Mlliuscn r. Brooking 45 
 
 Alliii r. Crawshiiu- 204 
 
 A II nut t. 7iV, Pott r. Brassey .507, .5(W 
 Almack v. Horn ' . . . 328 
 
 Amies, In re 298 
 
 Anderson r. Dawson 313 
 
 V. Martindale . . 441, 443 
 V. Oppenheimer . . . 491 
 V. St. Vincent .... 32(i 
 
 Anderson's Case 7 
 
 Andrews v. Andrews 529 
 
 r. Paradise . 48."), 491, 493 
 Andrew's Case, of Gray's Inn . 485 
 
 Andros, He 330 
 
 Angell V. Duke 6 
 
 Anon. (1 Anders. 25, pL 55) . . .266 
 
 (31 Beav. 310) 1.38 
 
 (1 Benl. & Dal. 12, pi. 12) 18 
 (Bendl. 121, pi. l.-)3) . . .266 
 (Dyer, 19 a, pi. 110) . . . 631 
 (Dyer, 30 b. pi. 209) . . . 629 
 
 (Dyer, 142 b) 584 
 
 (Dyer, 1H« a, ])). 1) . . . 271 
 {Dyer, 2,")5 a, i>l. 4) . . . 490 
 (Dyer, 19 b, pi. 115) ... 88 
 (Dver, 30 b, j.l. 209) . . .594 
 (D'yer, 48 b, pi. 3) . . . . 559 
 (Dver. 99 b. pi. 64) ... 239 
 (Dyer, 160 b,'pl. 43) . . . 219 
 (Dyer, 261 b, pi. 28) . . 96, 97 
 (Dyer, 312 b, i)l. 16) . . . 101 
 (Dyer, 323 b, j)!. 30) . . . 558 
 
 (1 Gifl". 392) 294 
 
 (Godb. 42. pi. 48) .... 246 
 
 (Godb. 333) 492 
 
 (Keilw. 49. pi. 6) .... Ill 
 (Keihv. 57. pi. 7) . . 569, 603 
 (Keihv. IIH, pi. GO) . . .585 
 (Keilw. 162, pi. 2 ; 161. 
 
 pi. 7) 21. 32 
 
 (Keilw. 19H) .')82 
 
 (Latch. 226) 34 
 
 (1 Leon. 227) .... 105. 106 
 
 (23)
 
 XXIV 
 
 Anon. (2 Leon. 11) 141 
 
 (3 Leon. 4, pi. 10) .... 239 
 (3 Leon. 6, pi. 18) ... . 266 
 
 (3 Leon. 16) 43 
 
 (3 Leon. 87) 236 
 
 (3 Leon. 202. pi. 254) 613, 614 
 (4 Leon. 2, pi. 3.', . . . . 264 
 (4 Leon. 8. pi. 37) . . . .619 
 
 (4 Leon. 50) 465 
 
 (1 Mad. 36) 306 
 
 (1 Mod. 180) . . . .105, 106 
 ( (Ca. 51) 11 Mod. 42) . . 44 
 (12 Mod. 546, pi. 912) 
 (12 Mod. pi. 912) 
 (Moore, 24, pi. 82) . . 
 (Moore, 35, pi. 116) . 
 (Moore, 43, pi. 133) . 
 (Moore, 46, pi. 139) . 
 (Moore, 124, pi. 270) . 
 (Owen, 31) . . . 
 
 (Palmer, 403) 34 
 
 (1 KoU. Abr. 396, pi. 4) .609 
 (1 Itoll. Abr. 406, pi. 10) . 608 
 (2 Roll. Abr. 409) ... . 1.38 
 (2 Roll. Abr. 7S3, pi. 5) . 149 
 (2 Roll. Abr. 783, pL 1; 
 784, pi. 1, 2, 3, 4) . . . 100 
 
 (I Roll. Rep. 40) 35 
 
 (2 Roll. Rep. 23) 7 
 
 (2 Vent. 355) ....... 284 
 
 Aprice r. Rogers 594 
 
 Archer v. Bennett 188 
 
 ('. Kelly .... 5i5, 516, 522 
 
 Archer's Case 232, 2.32 
 
 Arlett c. Ellis 627 
 
 Arlington w. Merricke 137 
 
 Ariuitt r. Breaine 124 
 
 Armstrong v. Cahill 435 
 
 d. Neve v. Wolsey . .287 
 
 Arnold ?'. Kayess 303 
 
 Arthur c. Arthur 297 
 
 Aspdin I'. Austin 89, 415 
 
 Astley Weldon 429 
 
 Aston V. Aston 375 
 
 Astry V. Ballard 604 
 
 Atcherley v. Dumoulin 523 
 
 Athill, In re 63 
 
 Atkinson i: Baker 246 
 
 r. Smith 148,461 
 
 Atkyns v. Oave 188. 589 
 
 ('. Kinnier 429 
 
 Atto V. Hernraings 82 
 
 Att.-Gen. v. Boston (Mayor of) . 73 
 V. Brazenose College . 68,73 
 V. Bristol (Mayor of) . 73 
 
 V. Burridge 580 
 
 V. Clapham 53,74 
 
 V. Dartmouth (Mayor 
 of) 73 
 
 24 
 
 TABLE OF CASES. 
 [The paging refers to the [*] pages. ] 
 
 584 
 
 V 
 
 626 
 
 V 
 
 603 
 
 V 
 
 25 
 
 V 
 
 219 
 
 V 
 
 606 
 
 
 493 
 
 V 
 
 188 
 
 V 
 
 Att.-Gen. i'.jDownshire 
 ^of) . . . 
 
 JUIS 
 
 100, 
 ?'. Drummond . . 
 V. Evvelme Hospital 75, 
 i\ Fishmongers' Co. . . 
 
 r. Gaunt lett 
 
 V. Hartley 
 
 V. Horner 
 
 V. Jones ." 
 
 V. Malkin 
 
 V. Mathias 
 
 V. ISIurdoch 
 
 Parker 67 
 
 Parmenter 
 
 Plate Glass Co. . . . 
 Reveley .... 567, 
 Rochester (Corpora- 
 tion of ) 
 
 V. St. Cro.ss Hospital 
 
 St. John's College . . 
 'V. Tomline .... 580, 
 Att.-Gen. of Isle of Man v. Myl- 
 
 ohreest : 570, 
 
 Attwater v. Attwater 
 
 Auditor Curie's Case 
 
 Audley's Case 
 
 Aulton V. Atkins 414 
 
 Austen v. Taylor 277, 
 
 Austin V. Anihurst 
 
 Aveling v. Knipe ...... 
 
 Avern v. Lloyd 
 
 Ayray's Case 126, 
 
 581 
 
 67 
 559 
 
 74 
 608 
 
 73 
 595 
 
 72 
 314 
 613 
 
 73 
 . 74 
 580 
 
 50 
 582 
 
 68 
 
 75 
 
 75 
 
 604 
 
 604 
 164 
 100 
 287 
 424 
 533 
 615 
 281 
 314 
 127 
 
 B 
 
 Babbage r. Coulburn 
 
 Bache v. Proctor 
 
 Back r. Andrew 
 
 Backhouse r. Middleton . . . . 
 
 Badcock, Be 
 
 Baddeley v. Baddeley . . . 
 
 Badger v. Ford 
 
 Baggett V, Meux 
 
 Bagshaw v. Spencer . . 257, 261 . 
 
 Bailey v. Llovd ]3o! 
 
 V. Wright 308, 
 
 Bailiff. &c., ot Tewkesbury v. 
 
 Bricknell 
 
 Baillie v. Jackson 399, 
 
 Bainton v. Bain ton 
 
 Baird v. Fortune 
 
 Baker v. Bradley 
 
 V. Bulstrode, 
 
 V. Dewey 
 
 V. Lade 
 
 V. Liine ......... 
 
 V. Richardson 
 
 V. White 
 
 458 
 82 
 281 
 380 
 539 
 298 
 204 
 
 ;;o3 
 
 319 
 133 
 317 
 
 404 
 292 
 168 
 302 
 493 
 151 
 41 
 41 
 162 
 273
 
 TABLE OF CASES. 
 
 XXV 
 
 adge 
 Jiise . 
 Cooper 
 
 Baldwin 
 Baldwin 
 Ball'ou'- 1 
 Ball. Le 
 
 Ballard c. Dyson 
 
 Balmaiu v. Shore . . . 1577. 384, 
 Bamberger i: Comiuercial Credit . 
 Bank ui" England's Case .... 
 Bank of Hindustan r. Smith . . 
 
 Barbat r. Allen 
 
 Barber's Estates. lie 
 
 Bardon c. Bardon 389, 
 
 Barfoot v. Freswell 
 
 Barker r. Lade 
 
 Barksdale r. Morgan 
 
 Barkshire v. Grubb .... 194, 
 Barlow v. Batemau 
 
 r. lleneage 
 
 V. Orde 
 
 r. Khodes . . . 16-3, 188, 
 Barned's Banking Co.. Be . . 28, 
 
 Barnes v. Peter.sou 
 
 Barnett r. Blake 
 
 V. Tugwell 
 
 Baruhart r. Greenshields .... 
 
 Barraclough v. Shillito 
 
 Barrat r. "Wvatt 132, 
 
 Barrett v. Bedford 97, 
 
 V. Blagrave 
 
 Barron c. Barron .... 224, 
 Barrow r. Barrow . .... 
 
 r. Dyster 
 
 Barrymore r. Ellis 
 
 Bartlett v. Green 
 
 r. Hodg.son 
 
 r. Wright 
 
 Barton r. Barclay 
 
 r. Dawes 4, 
 
 r. Fitzgerald . 78, 97, 42(i, 
 Baskerville r. Baskerville .... 
 
 BiLstard r. Proby 
 
 Ba.stiu V. Bid well . , 
 
 Bates r. Grabham 
 
 I>ath and .Mountague's Ca.se . . . 
 Bath's (Bishop of) Case 124, 139, 
 Bathiirst r. Erringfon, . . . 126, 
 liawfll and Lucas's Ca.se .... 
 Bayley r. (i.W. Kv. Co. 190. 192. 
 r. Morris 232, 2.50, 2.53, 319, 
 
 lie 
 
 Bayley's Settlement, .Br: . 12G, : 
 
 313. 
 
 Baylis v. Tyssen .Vnihurst . . aOO, 
 
 Bayly v. (Jarford 
 
 Baynes r. BcIsdii 
 
 Baynhain /•. Guys Hospital 74. 7o, 
 
 Bays i: jiird 
 
 Bayspoolc r. Collins 
 
 Beale r. Boalc 327, 
 
 [The paging refers to the [*] pages.] 
 . . . .-)G0, .592 Beauchanip iLord) r. Winn . (520, 629 
 Beaufort (Duke of) c. Swansea 
 
 ( Mayor of ) 70. 72 
 
 Beaumont r. Field 116 
 
 V. Salisbury (Marquis 
 of ) . . \ . 40, 45, 276 
 
 Beavan v. Delahay 12 
 
 Beckett v. Coriioratiou of Leeds 179, 
 
 184 
 
 Beck's Case 249, 250 
 
 Beckwith's Case 287 
 
 Bedell's Case 43, 146 
 
 Bedford's (Earl of ) Case . . . .288 
 Bedford (Duke oi ) v. Abercorn 
 (Marque.ss of ) . . .554,555.556 
 
 Bedford r. Kussell 229, 288 
 
 Bedle v. Beard 559 
 
 Beecher's Case 560 
 
 Beer r. Beer 439 
 
 Behn v. Burners 47 
 
 Belcher v. Sikes .... 81, 82. 481 
 
 Belfast Dock Act, Be 70, 71 
 
 Bell V. Bell .551 
 
 V. Wil-son 604 
 
 Bellasis' Trust, Be . . . 282. 54S, 549 
 Benecombe's and Parker's Ca.se . 44 
 
 Bennet r. Bennet 350, 352 
 
 Bennet's Case 493 
 
 Bennett v. Costar .579 
 
 r. Ingoldsby 494 
 
 r. Reeve 609,. 612 
 
 Bennington v. Goodtitle .... 565 
 
 V. Taylor 621 
 
 Bensley v. Burdon 140 
 
 Benson v. Benson 421 
 
 Benton, Be 303 
 
 Beresford r. Browning . . . 435, 436 
 
 Beresford's Case 233, 250 
 
 Berkeley's Case (Lord) 625 
 
 Berridge r. Ward ]H0 
 
 Berry v. Berry 327 
 
 & Goodman's Case .... 179 
 
 Bestall r. Bun bury 300 
 
 Best's Settlement' Trusts .... 316 
 
 Bettini r. Gye 446, 4()4 
 
 Betts V. liur'ch 428. 429 
 
 Bettuan's Case 265 
 
 Bettv V. Elliott 278 
 
 Bil.son V. Crofts 141 
 
 Bingham's Case 229 
 
 Bird V. Lake 131,4.32 
 
 Be 317 
 
 ]^>iron, Be 327 
 
 Blackburn v. Stable.s5.34, 535, 5.3(). 540 
 1.50 i Blackett v. K. E.xchangc Assur- 
 
 407 ' anceCo 11, 1:5 
 
 5H9 Blackhjw r. Lawes 29!y 
 
 14H Blague r. Gold 171 
 
 .iAr) I'Aake, Ex parte 5 is, ,529 
 
 25 
 
 592 
 
 221 j 
 
 380' 
 
 335 [ 
 
 630 I 
 
 405! 
 
 34 
 
 281 
 
 31 I 
 
 68 I 
 
 246 , 
 
 :!94 i 
 
 416 I 
 
 41 I 
 
 54 I 
 
 197 1 
 
 128 i 
 
 121 
 
 331 
 
 195 
 
 30 
 
 565 
 
 394 
 
 330 
 
 152 
 
 327 
 
 133 
 
 426 
 
 4:;2 
 
 319 
 529 
 
 15 
 302 
 261 
 409 
 160 
 219 
 161 
 479 
 .546 
 541 
 4()6 
 
 26 
 129 
 246 
 3.37 
 559 
 197 
 3.59 
 
 78 
 539, 
 349 
 613 
 
 34
 
 XXVI 
 
 TABLE OF CASES. 
 
 [The paging refers 
 Blaker r. Anscombe .... 272, 274 
 
 Bland v. Dawes 298 
 
 V. Lipscombe 579 
 
 Blanford i: Marlborougb .... 534 
 Blaukley r. Winstanley .... 73 
 
 Blaiin V. Bell 619 
 
 Blatchford v. Plymouth (Mayor 
 
 of ) 492 
 
 Blewitt V. Tregonning 613 
 
 Blocklej, Be 518 
 
 V. Blockley, 518 
 
 Blodwell V. Edwards 330 
 
 Bloomfield v. Johustou . . . 576, 578 
 
 Blundel v. Stanley 209 
 
 Blundell v. Catterall 580 
 
 V. Dunn 330 
 
 Blythev. Granville 515,518 
 
 Boddington v. Kobinson .... 221 
 
 Bois V. Koswell 284 
 
 Bold V. Hutchinson ..... 539 
 Boldero v. East India Co. . . .50, 85 
 
 Bolton V. Bolton 189, 193 
 
 V. Carlisle (Bishop of) . . 24 
 
 V. Lee 436 
 
 V. Williams 7 
 
 Bond V. Taylor 332 
 
 Bond's Case 374 
 
 Bony r. Taylor .... 225, 2.32, 253 
 
 Boone t). Eyre 420,460,465 
 
 Booth r. Ak'ock 189 
 
 Boraston v. Green 12 
 
 Boreton r. Nicholls 249, 250 
 
 Borrowes v. Borrowes 415 
 
 Boteler r. Bristow 612 
 
 Bottomley v. Forbes 13 
 
 Bottrell V. Summers .... 137, 152 
 Boughton V. Sandilands . . 128, 332 
 Bouverie v. Bouverie .... 402, 404 
 
 Bower i\ Hodges 420 
 
 r. Smith 510, 526 
 
 Bowes V. Shand 59 
 
 Bowles's Case 243. 319 
 
 Bowlston V. Hardy 629 
 
 Bowman r. Kostron 140 
 
 V. Tavlor 140, 141 
 
 Bown, Re . .' 303 
 
 Boycot V. Cotton . . 369,' 372. 374, 375 
 
 Bovd V. Petrie 131 
 
 BoVdell r. Walthall 265 
 
 Boyes v. Bed ale 330 
 
 Boys t'. Ancell . .• . . .428,429 
 Bradburne r. Botfield 437.439.440,443 
 
 V. JMorris 630 
 
 Bradford v. Romney 518 
 
 V. Williams 461 
 
 r. Young 56 
 
 Bradish i\ Bradish 405 
 
 Bradley v. Newcastle-on-Tyne . 73 
 V. Peixoto 81 
 
 26 
 
 to the [*] pages. ] 
 
 Bradley r. Powell 378 
 
 Bradshaw v. Eyre 203 
 
 Brand t. Todd 106 
 
 Brandon v. Brandon ..:... 305 
 
 Bralhwaite v. Brathwaite 327, 339, 
 
 369, 371 
 
 Bray broke (Lord) v. Iiiskip . . .139 
 
 Brenan r. Boyne 278 
 
 Brennau v. Fitzmaurice .... 542 
 
 Brent's Case 280, 358 
 
 Breton, In re 298 
 
 V. Woolven 298 
 
 Brett V. Beales 623 
 
 Brew V. Haren . 72 
 
 Brewer v. Hill 45 
 
 Brewin v. Brewin 370 
 
 Brewster r. Ansiell . . 5.53, 554, 556 
 
 V. Kicigell 18 
 
 Brice?;. Carr 418 
 
 Brigg V. Brigg 306, 307 
 
 Briggs V. Upton 317 
 
 Bright V. Cowper 455 
 
 Bristow V. AVarde 552 
 
 Britton r. Wade 561 
 
 Broadmead v. AVood 342 
 
 Broderick v. Brown 45 
 
 Broking r. Cham 484 
 
 Brook V. Hustler 592 
 
 Brooke r. Haynes 141 
 
 Brookes?". Drysdale .... 407.413 
 
 Brookham, Re . '. 530 
 
 Brooks V. Brooks 215 
 
 V. Keith 507, 522 
 
 Broughton r. Conway 469 
 
 Brown r. Armstrong 8 
 
 x\ Bam ford 303 
 
 i\ Barkham 115 
 
 r. Brown 467 
 
 I'. Byrne . . 9, 10, 15, 60, 61 
 
 «'. Jones 42 
 
 V Nichols 188 
 
 Browne i\ Burton 119 
 
 ('. Dunnery 86 
 
 V. Phillips 429 
 
 r. Tavlor 46 
 
 Browne's AAlfl, Re 515, 516 
 
 Browning v. Beston 99 
 
 V. AA>ight 426. 471. 475, 479 
 Brownlow v. Meath (Earl of) . . 44 
 
 Bruen v. Bruen 370 
 
 Brunton r. Hall 630 
 
 Bryan r. AA'etherhead 188 
 
 Brj'dges r. Chaudos (Duchess of) 4 
 
 Buckeridge v. Ingram 587 
 
 Buckler r. Millerd 3 
 
 r. Symons 266 
 
 Buckler's Case 210, 217 
 
 Bull V. Comberbach 257 
 
 Bullen V. Denning 95
 
 TABLE OF CASES. 
 
 XXVll 
 
 [The paging refers to the [*] pages.] 
 
 277 
 4-22 
 105 
 339 
 115 
 583 
 250 
 420 
 420 
 229 
 ,93 
 80 
 282 
 522 
 214 
 377 
 304 
 433 
 
 Bullock r. Menzies 299 
 
 Bunting v. Lepingwell 224 
 
 Burchell v. Clark 8 
 
 Burchtieki r. Moore 23 
 
 Burges v. Mawbey 
 
 Burgess c. Wlieate 
 
 Burnett v. Lynch 2, 
 
 ]>urnitt and Burland In re ... 
 
 Burrell v. Crutchley 
 
 Burtenshaw v. Weston 
 
 Burton v. Browne 
 
 V. Nichols 249, 
 
 Buch V. Calis 
 
 V. Cole or Coles 
 
 V. Locke 
 
 V. Watkins . . . . 81, 91 
 
 Bustard v. Coulter 
 
 i\ Saunders 
 
 Butcher v. Butcher . . 339, 503, 
 Bntler v. Dodton 80, 
 
 V. Duncomb 
 
 V. Gray 
 
 V. Powis 
 
 V. Swinnerton 488 
 
 V. Wigge 82 
 
 Butterfield v. Heath 149 
 
 Button V. Wrightman 127 
 
 Byain r. Byam 549 
 
 Bythesea v. Bythesea . 396, 400, 402 
 
 Bywater r. Clarke 93 
 
 He 93 
 
 Cabell V. Vaughn 1 
 
 Cage & Paxlin's Case 631 
 
 Caister v. Etcles 424 
 
 Caldwell v. Fellowes . . . 505, 511 
 
 V. Parker 19, 33 
 
 Calmady v. Rowe 71 
 
 Calthorp i\ Hayton 482 
 
 Calthoip's Case 106 
 
 Calvert r. Sebright 491 
 
 Campbell v. Bainbridge . . 503, 504 
 
 V. Ingilby 461 
 
 V. .Jones 452 
 
 V. Prescott 294,383, 393, 394 
 
 V. Sandys 550 
 
 Camp.jeH's Policies, Re 510 
 
 Canipden Charities, In re . . . T^. 75 
 
 Canhani r. Fisk 191, .591 
 
 Cannock r. .Jones 120 
 
 Cannon r. Vi liars ... 47, 1^4. 198 
 
 Canon's Case 249 
 
 Cape V. Scott ! 615 
 
 Capital Fire Insurance Associa- 
 tion, Re 7 
 
 Cardigan (Earl of) tJ.Armitage 88, 190 
 
 [ Careless r. Careless 116 
 
 Carew's Case 211 
 
 Carlisle Banking Co. r. Thompson 152 
 Carpenter r. Bulier .... 140, 141 
 
 V. Creswell 462 
 
 v. Parker 491 
 
 Carr v. Lambert (;09 
 
 V. Roberts 418 
 
 Carruthers v. Sheddon 126 
 
 Carter v. Carter . . . .141, 208, 510 
 r. Ducie (Earl ol) . 341,3.50 
 
 V. Kungstead 265 
 
 V. Madgwick 220 
 
 V. Murcot 577 
 
 V. Salmon 6 
 
 r. Scargill 461 
 
 Carter's Trusts, Re 140 
 
 Casterton v. Sutherland 366 
 
 Castle V. Dod 288 
 
 Catten r. Bennett 429 
 
 Cavan (Lady) v. Pulteney . . . 489 
 
 Cave V. Brookesby 485 
 
 Cecil V. Butcher 122 
 
 Chad V. Tilsed 70, 71 
 
 Chad wick v. Doleman . . . 342, 348 
 Challenor r. Thomas .... 583, 630 
 
 Chalmers r. North .311 
 
 Chamberlaine v. Turner .... 171 
 
 Chambers v. Chambers 537 
 
 V. Taylor 22.5, 232, 251, 252, 
 256, 296 
 Chand flower v. Waterhouse and 
 
 Presbye 484 
 
 Chantflower v. Priestly 484 
 
 Chaplain v. Southgate 485 
 
 Chaplin r. Chaplin 619 
 
 Chaplin's Trusts, Re ... . 35,5, .3.56 
 
 Chapman v. Beecham 125 
 
 V. Bradley 332 
 
 V. Chapman . . . 316, 317 
 
 V. Dal ton 82 
 
 V. Emery 147 
 
 t. Flexman 60.3 
 
 V. Gatcombe 209 
 
 V. Jones 5(;() 
 
 V. Wood 302 
 
 Charringtou c. Laing 429 
 
 Chattock V. Mullor 105 
 
 Cheiny & Langley's Case .... 422 
 
 Clieney's (Lord) Case Ill 
 
 Cherry i\ Heming 1 
 
 Cheslyn r. Dalby 119 
 
 ('hester v. Wiilan .... 41, 4;>, 1(10 
 
 Chick, Expiirlr ;{7 
 
 (Jhildcrs c. Eardley . . . . 1.36, .52H 
 Chilliner r. Chilliner . . . .432,133 
 Chilton V. Corporation of London (i06, 
 
 613 
 Chitty V. Bray 464 
 
 27
 
 XXVUl 
 
 TABLE OF CASES. 
 
 [The paging refers 
 Cholmondelej^ r. Asliburton . . . 308 
 V. Clinton 38, 47, 76, i 
 115, 137, 254 
 V. Meyrick 362, 377.403 
 
 Chorley's Case 584 
 
 Christie i: Borelly 453 
 
 Chudleigh's Case 235 
 
 Church V. King 436 
 
 Churchill i'. Denny .... 517, 530 
 
 ?;. Shepherd 516 
 
 Churton v. Frewen 566 
 
 Chute V. 150 
 
 City of London's Case 582 
 
 Cla'nrickard v. Sidney 498 
 
 Clarke r. Bickers 435 
 
 V. Bradlaugh 120 
 
 V. Cugge 201 
 
 V. Colls 333, 335 
 
 V. Gurnell 455 
 
 V. Roy stone 12 
 
 V. Samson 425 
 
 Clarke's Trusts, Be 303 
 
 Clarkson v. Edge 432 
 
 V. Hanway 148 
 
 Clavell r. Littleton 9 
 
 Clavering v. Clavering 121 
 
 Clayton's Case 119,120 
 
 Clayton v. Glengall 40 
 
 V. Gregson 50, 61 
 
 Clegg V. Rowland ...'.... 604 
 
 Clements v. Lambert 203 
 
 V. Matthews 409 
 
 Clere's Case 46 
 
 Clerk r. Clerk 284 
 
 Clifford r. Arundell .... 175, 381 
 
 V. Turrell 146, 147 
 
 V. Turrill 146 
 
 Clifton V. Good bun 330 
 
 V. Walmesley 8, 75 
 
 Clinton's Trust, In re 513, 514, 515, 
 517, 519, 520, 523, 526 
 
 Clive V. Clive 546 
 
 Clyde Navigation (Trustees of ) v. 
 
 Laird 70 
 
 Cochin V. Heathcote 220 
 
 Cochran v. Graham 530 
 
 Cockell V. Gray ....'.... 124 
 
 Codringt(m ti. Lindsay 504 
 
 Cogan i\ Duflfield 548 
 
 Cole & Friendship's Case .... 358 
 Cole r. Ireland ........ 549 
 
 V. Levingston 290 
 
 V. Parkin 26, 27 
 
 V. Sewell 285, 294 
 
 Cole's Case 420 
 
 Coleman r. Sherman 436 
 
 Coles V. Huhne 80 
 
 V. Kinder 194 
 
 I'. Sims 433 
 
 28 
 
 to the [•] pages.] 
 
 Colley, Ee 391 
 
 Collier v. Squire 314 
 
 CoUingwood v. Stanhope 339, 341, 347 
 
 Collins V. Blauteru 5 
 
 V. Locke 458 
 
 r. Plummer 537 
 
 V. Prosser 31, 436 
 
 Collyer v. Isaacs . 408 
 
 Colmore r. Tyndall' 40, 275 
 
 Colt & Glover v. Coventry and 
 
 Lichfield (Bishop of ) 46 
 
 Colthirst V. Bejushin 358 
 
 Coltman v. Senhouse . . . .41, 264 
 Combe v. Combe .... 382, 384, 390 
 Commissioners of Sewers v. Glasse 615 
 Compton V. Richards . . . .191, 202 
 
 Connor, Ee 330 
 
 Constable v. Nicholson 613 
 
 Constable's Case 573 
 
 Cook V. Cook 328 
 
 V. Gerrard 290 
 
 V. Jennings 455 
 
 Cooke V. Booth 74 
 
 V. Founds 468 
 
 Coombes, Ee 303 
 
 Cooper V. Franklin 271 
 
 V. Kynock 275 
 
 ^e 2 
 
 V. Robinson 123 
 
 V. Wells 299 
 
 Cope V. Cope 92, 93 
 
 Copland i: Laporte 435 
 
 Copley V. Hepworlh 45 
 
 Coppin V. Coppin 151 
 
 Corbet's Case , . 615 
 
 Corbett v. Hill 591 
 
 Cornmell v. Keith . . . 512, 524, 526 
 Corporation of Newcastle r. Att.- 
 
 Gen 6. 8 
 
 Cort V. Birkbeck 603 
 
 V. Sagar 162 
 
 Corns V. 485 
 
 Coryton v. Helyar 77 
 
 V. Litliebye 603 
 
 Cother v. Merrick 91, 93 
 
 Cottee V. Richardson 45 
 
 Cotterel r. Franklin 169 
 
 Cotton V. Scarancke 306 
 
 Cotton's case 233 
 
 Coulson V. Alison 332 
 
 Coultman v. Senhouse . . . .41, 264 
 
 Counden v. Clarke 254 
 
 Courtney v. Taylor . . 144, 410, 418 
 Coventry v. Coventry . 506, 507, 508 
 Coward v. Gregory 466 
 
 Cowie r. Halsall 
 Cowlan V. Slack . . . 
 Cowling V. Higginson 
 Cowper V. Frankline 
 
 23 
 612 
 630 
 271
 
 TABLE OF CASES. 
 
 XXIX 
 
 [Tha paging refers 
 
 Cowper V. Rcott 381 
 
 Cowper Smith r. Anstey . . . .5-22 
 
 Cox r. Batcinan 421 
 
 V. BeuiHtt 172 
 
 r. Chamberlaine 1^62 
 
 V. Cox <")56 
 
 r. Day 123 
 
 V. Matthews 191 
 
 Craig, Be 1«2 
 
 Cramer v. Moore o07 
 
 Cranmer's Case 243 
 
 Cranswitli v. Pearson 284 
 
 Crayford r. Craylbrd 480 
 
 Creation of Jlarunets (121 
 
 Creswick v. Hobbon 237 
 
 Crewe v. Dicken 40 
 
 Crofton V. Ormsby 4'A 
 
 Crofts V. Middleton 140 
 
 Cromwell v. Grnnsden 83 
 
 Cromwell's (Lord) Case 6, 7, 207, 271 
 
 Crone v. Odell . 357 
 
 Croockewit v. Fletcher . . . 22, 455 
 
 Cross r. Faustenditch 150 
 
 Crosse v. Yoiinge 485 
 
 Crosse's Will, Ee 402 
 
 Crossfield v. Morrison 47i) 
 
 Crossing r. Scudamore 41 
 
 V. Skidmore 41 
 
 Crossley v. Lightowler 199 
 
 Croughton's Trusts, lie 303 
 
 Crovdou Hospital v. Failey . . . 127 
 
 Crux V. Aid red 429 
 
 Cubitt ('. Porter . . . .184,006,007. 
 
 Cuff c. Brown 402 
 
 Cumberlege r. Lawson 122 
 
 Cummins r. Cummins 421 
 
 Cunningiiam r. Butler 172 
 
 V. Moody . . .361, 362 
 
 Cupit V. Jackson 380 
 
 Curie's Case l'»0 
 
 Currie v. Larkins . . . 384, 403, 404 
 
 V. Nind 149 
 
 Curtis V. Price 243, 270 
 
 Cusack V. Cusack 536, 542 
 
 Cuthbert v. Cumming ..... 13 
 
 D 
 
 Dacres (Lady) v. Hazel 150 
 
 Dairenie c. I'.olt 202 
 
 Datlorn v. Goodman .... 262, 327 
 
 Dailies r. Heath 170 
 
 Daintrcc v. Hutchinson 00 
 
 Dale r. Humfrey 14 
 
 Dalrvmple r. Hall 3:53 
 
 DaltMii r. Hill 402 
 
 Dam pier v. Pole 170 
 
 Danbv v. Coutts 133, 137 
 
 to the [•] pages.! 
 
 Dand r. Kingscote 184, 190 
 
 D'Angibau. Jic 520 
 
 Daniel c. Dudley 314 
 
 lie 80, 137. 530 
 
 r. Ubley • . . . 46 
 
 Dann v. Spurrier 97, 107 
 
 D'Arcv f. Askwith 190 
 
 Darcy"/-. Croft 298 
 
 Darcy t^ Sharpe's Case 32 
 
 Darell r. Wrybarne 594 
 
 Danell r. (hinter 101 
 
 Dart V. Clayton 80, 13(i 
 
 Darvill c. Koper 004 
 
 Davenant r. Kaster Ill 
 
 Davenport v. Davenport .... 540 
 
 r. Hanbury 320 
 
 Davidson r. Cooper 21, 23, 24, 31, 34 
 
 V. Gwynne 464 
 
 Davie v. Sacheverell 485 
 
 Da vies c. Da vies 535, 536 
 
 r. Games 281 
 
 r. Huguenin . 342, 344, 309, 
 371, 372, 377 
 
 V. Kempe 283 
 
 V. Kirk 229 
 
 V. Lowden 589 
 
 V. Lowndes 128 
 
 V. Pentou 428, 429 
 
 V. Sear 203 
 
 V. Speed 289 
 
 V Williams 013 
 
 Davis V. Tollemache 494, 495, 490. 497 
 
 Dawes r. Tredwell . . 130, 131, 143, 
 
 418, 426, 501, 504, 505 
 
 Dawson r. Dawson 232, 320 
 
 V. Dyer 405 
 
 V. Fitzgerald . . . 457, 458 
 
 Day V. Dav 310 
 
 r. Kadcliffe .... 400 401. 400 
 
 V. Trig 172, 178 
 
 Dean v. Gibson 170 
 
 Dearden, lie 128 
 
 Deerhurst r. St. Albans . . 5.36. 539 
 Deering v. Farrington . . . 424, 478 
 Delacherois v. Delaclierois . 5!)2, 594 
 De la Wurr (Earl) c. Miles . .71, 75, 
 580, 014. 628 
 
 Delmer r. Mc.Cabe 408, 498 
 
 Denison r. Holiday 137 
 
 Denn d. Creswick r. Hob.son . . 237 
 d. Trickett r. Gillott . . . 235 
 d. Wilkinst'. Kemevs . . . 45 
 V. Gillott ....'.... 236 
 
 Dennehy r. Delany 549 
 
 Dennett r. Atherti)!! . . . .482,487 
 Dennis, lie . . 320, 324, 375, :',91, 4(11 
 
 Denny's Kstate, lie 241 
 
 Dent V. Clayton 13() 
 
 Denton <.*v: Fcttiplace's Case ... 42 
 
 2!J
 
 XXX 
 
 TABLE OF CASES. 
 
 [The paging 
 
 D'Epinenil, Ee 
 
 Derby (Earl of) v. Taylor . . . . 
 
 Bering i\ Kynaston 
 
 D'Estanipes, i^e, D'Estampes v. 
 Hankey , 504, 
 
 Deverell v. Whitmarsh 
 
 Devon's Case (Earl of) 
 
 Devonshire v. Lodge 
 
 Dickinson r. Dillwyn . . .510, 
 
 Dillon V. Blake 
 
 Dimeck r. Corlett 
 
 Dixon V. Barkshire 
 
 V. Dixon 
 
 Dixon's Trusts, Be 
 
 Doble, Ex parte 
 
 DocI V. Dod .53(3, 
 
 Dodd r. Burchell 
 
 Doddington's Case 160, 
 
 Dodds ('. Thompson 
 
 Dodson V. Kayes 83, 
 
 Doe d. Abdy r. Stevens 
 
 d. Ash forth v. Bower . . . . 
 
 d. Beacli v. Jersey 
 
 d. Bhike v. Luxton 
 
 d. Borwell r. Abey 
 
 d. Brown i\ Brown 
 
 d. Brown v. Greening . . . 
 d. Brnne v. Martyn .... 
 d. Clayton r. Williams . . . 
 d. Clements r. Collins" . . . 
 d. Clift V. Birkhead 290, 292, 
 d. Daniell v. Woodroffe . . 
 d. Davies & Williams v. Wil- 
 liams 96, 
 
 d. Devine v. Wilson . . 
 d. Dunning v. Cranstoun 
 d. Farmer v. Howe . . . 
 d. Fotinereau i\ Fonnereau 
 d. Foquett v. Worsley 
 d. Gaisfbrd v. Stone . 
 d. Garnons v. Knight . 
 d. Gord V. Needs . . . 
 d. Hiscocks v. Hiscocks 
 d. Hubbard v. Hubbard 
 d. Hutchins:)n v. Prestwid 
 d. Jackson r. Asliburner 
 d. James v. Hallett -. . 
 d. Jones r. Williams . . 
 d. Kinglake v. Beviss 
 d. Lee Compere r. Hicks 
 d. Leicester v. Biggs . 91, 93, 
 d. Lempriere t\ Rlartin 
 d. Lewis x\ Bingham . 
 d. Lewis i\ Davies . . 
 d. Littledale v. Smeddle 234 
 d. Lloyd V. Passiiighani 
 d. Luniley r. Scarljorough 
 d. Luscombe v. Yates 
 d. Merceron v. Bragg . . 
 
 refers to the ['] pages.] 
 
 409 Doe d. Meyrick t\ Meyrick . 90, 175 
 219 d. Milbourne v. Salkeld . . 42 
 
 511 d. Norton v. Webster 4, 8, 188, 603 
 
 d. Parkin v. Parkin .... 164 
 
 d. Pell V. Jeyes 176 
 
 d. Pring v. Pearsey . . . .181 
 
 d. Rust V. Eoe 560 
 
 d. Kyall v. Bell 165 
 
 d. Scholefield v'. Alexander . 86 
 
 512 
 152 
 231 
 629 
 .522 
 544 
 42H 
 404 
 316 
 323 
 149 
 543 
 192 
 173 
 622 
 123 
 
 97 
 164 
 165 
 246 
 284 
 165 
 164 
 231 
 595 
 588 
 294 
 
 41 
 
 ge 
 
 24 
 
 d. Scruton v. Snaith .... 87 
 d. Shelton v. Shelton . . . .142 
 d. Simpson v. Simpson . . . 241 
 d. Smith V. Galloway . 1.58, 168 
 d. Spencer v. Clarke .... 241 
 d. Spicer v. Lea 65 
 
 290 
 
 41 
 362 
 . . 17 
 92, 218 
 . . 164 
 
 d. Starling r. Prince 
 
 d. Tanner v. Dorvell . 
 
 d. Tatum r. Catomore 
 
 d. Timmis v. Steele 
 
 d. Tyrrell v. Lyford . 
 
 d. Watts r. Wainewright 285, 293 
 
 d. Webb V. Dixon ... 97, 107 
 
 d. Were v. Cole 42 
 
 d. Whatley v. Telling ... 119 
 
 d. White V. Osborn 135 
 
 d. Willis V. Martin . . 240, 362 
 d. Winter v. Perratt . . 115, 2.54 
 d. Woolley v. Pickard ... 42 
 d. Wright V. Plnmptre . . .311 
 
 d. Wyatt V. Stagg 46 
 
 V. Burt 591 
 
 V. Purchasers under assignees 
 
 of Simpson 42 
 
 178 Domville v. Winnington . . 353, 3.54 
 106 Donaldson v. Donaldson .... 121 
 
 172 Doncaster v. Doncaster 533 
 
 178 Donoghue r. Brooke 323 
 
 243 Dorin v. Dorin 329 
 
 290 Douglas c. Congreve 506 
 
 143 Doungsvvorth r. Blair 175 
 
 120 Downs r. Hath wait 83 
 
 111 Dowse's Case 219 
 
 117 Dowtie's Case 172,173 
 
 164 Drake v. Monday 44 
 
 269 Drakes v. Wiglesworth 603 
 
 44 Drew v. Norbury (Earl of) . 206, 208 
 328 Drummond v. Attorney -General 
 41 (for Ireland) . . . 52, 53, 67, 75 
 
 Drury r. Scott 506 
 
 4 Dubber v. Trollope 232 
 
 273 Dublin v. Blount 565 
 
 588 Dublin & Kingston Ry. Co. r. 
 
 27 Bradford 158, 160 
 
 41 Duckett V. Gordon 417 
 
 235 Dudley r. Folliott 485 
 
 267 Duke v. Doidge 339 
 
 142 I Dunbar (Corporation of) r. Rox- 
 128 j burghe (Duchess of ) . . 68. 74, 75 
 87 I Duncan v. Cannon 525 
 
 30
 
 TABLE OF CASES. 
 
 XXXI 
 
 [The paging refers 
 
 Dunn r. Savles 41:5 
 
 Diiniiiirs trusts. Fc r)48 
 
 Diinraven r. Llewellvn . . . (iOH, (514 
 J)iitch W. I. Co. (The) r. Van 
 
 Moses 127 , 
 
 Dutton V. Taylor '201 j 
 
 Dwver v. Kic-li IK? 
 
 Dyer v. Awister 4() 
 
 r. (ireen 170 
 
 Dvne r. Nutlev IGl 
 
 Co. 
 
 Eagleton r. Gutteridge . 
 
 Eales V. Conn 
 
 Earle c. Wilson .... 
 
 Eastern Counties lly. 
 
 Philipson 
 
 East London Waterworks Co. r. 
 Trustees for ISIile End Old 
 Town 
 
 Eaton r. Loyn 7.^, 
 
 Ecclestou V. Clipsham . . . 4:57, 
 
 Edgeworth r. Mgeworth . . . . 
 
 Edgington, Re 
 
 Edward.-- 
 
 .\pplebee . . . 
 ('. Aberayron, &c., So- 
 ciety 
 
 r. Alliston ...... 
 
 r. Broughton 
 
 and Denton's Case . . 
 
 V. Fashion 
 
 Ee 
 
 Edye ?". Addison 
 
 Eeies V. Lambert 
 
 Egerton i: Brownlow (Earl) . . . 
 
 Egremont v. Saul 5G9, 
 
 Elerdeby r. Maucovenant . . . 
 
 Ellard ;-'. Hill 610, 
 
 Ellen v. Topp , 461, 
 
 Elliott V. Davis 
 
 f. N. E. Railway . . . . 
 V. Koyal Exchange A.ssur- 
 
 pnce Co 
 
 Ellison V. Bignold 
 
 V. Thomas . . 3:j8, .3:50, 
 
 :j4;',, 
 
 Ellis' Tru.st. Re 
 
 Elni.sley r. Young 30o. 
 
 Else V. Osborn 
 
 Elton V. Elton 
 
 ]-;iw()od r. B>nl1ock 
 
 Einerton r. Scll)y 
 
 ICruMiiiis r. Bradford 
 
 Emperor r. Kulfe 377, 395, 398. 
 40-2, 
 
 Empson's Case 
 
 Emu.ss )■. Smith 
 
 26 
 
 6 
 
 331 
 
 463 
 
 178 
 407 
 439 
 :J72 
 361 
 494 
 
 458 
 292 
 5j>8 
 178 
 281 
 510 
 5:50 
 214 
 533 
 ()-23 
 625 
 615 
 46r> 
 2 
 
 190 
 
 458 
 411 
 :541 
 :545 
 
 :w.i 
 
 , 309 
 2:58 
 5.").5 
 621 
 5(iS 
 :535 
 
 399. 
 40:', 
 141 
 165 
 
 to the [*] pnge«.] 
 
 Engli.sh V. Eurnell 61-2 
 
 Enys r. Donnithorne 436 
 
 Erskine v. Adeane 6, 585 
 
 Esserv r. Cowlard 332 
 
 E.stateofC. Blake, A'(> 79 
 
 Evans v. Angell 164, 188 
 
 V. Brenibridge 2 
 
 V. Davis 330 
 
 and Finch's Ca.se .... 002 
 
 c. Grey 1. Lio 
 
 (". Jones 140 
 
 r. King 1:25 
 
 V. Massey :5:51 
 
 V. Pratt (iO 
 
 r. Scott 374, :577 
 
 V. Stevens 568 
 
 r. Vaughan . . . :59, 487, 492 
 
 Eveleigh v. Turner 558 
 
 Evelyn v. Evelyn . , 380, 381, 382 
 
 Evers r. Strickland 127 
 
 Ewart V. Belfa.st Guardians . . . 202 
 
 V. Cochrane 190 
 
 i: Ewart 510 
 
 Ewer i\ flayden 591 
 
 V. Hendeu 591 
 
 Ewre r. Strickland 127 
 
 Exchange Bank of Yarmouth r. 
 
 Blethen, 1 
 
 Exel V. Wallace 250 
 
 Exeter v. Smith 589 
 
 Exton I'. Scott 121 
 
 Fain v. Avers 494 
 
 Fairlie v. Chri.stie 21 
 
 Fanshawe's Case 127 
 
 Farewell c. Coker 138 
 
 Farncombe's Trusts, Ee . . . :528 
 
 Farrall f. Hilditch 14:3,410 
 
 Farrer r. Barker .... 383, 400, 402 
 
 Farrowes v. Farmer 7 
 
 Faulkner r. Lowe 407 
 
 Fau.ssettr. Carpenter . . 206, 208. 209 
 
 Fazakerly r. M' Knight . . . .23,27 
 
 Fearon r. Ayle.sford (Earl of) . .461 
 
 Featherstone's Trusts, /?e . . :!56, :5.")7 
 
 Fendall v. Goldsmid 128 
 
 Fenn I'. Grafton 602,603 
 
 Fetiton V. Fenton 82 
 
 Fenwick v. Grecnwcll :'61 
 
 V. Mitlorlh 2--'9 
 
 ?'. Schmalz 177 
 
 Ferrars r. Cherry 1 17 
 
 Ferrers v. Fermor 7 
 
 Fever.shanir. Wats )n 150 
 
 Field r. Evans :!'•! 
 
 V. Lelean 15 
 
 *^ t 
 t»l
 
 XXXll 
 
 TABLE OF CASES. 
 
 [The paging refers to the [»] pages.] 
 
 Fielder v. Tovy 84 
 
 Filmer v. Gott 148 
 
 Finch V. Great Western Ry. Co . 199 
 
 Finch's Case 127, 595 
 
 Fisher r. Wigg 284 
 
 Fitz- Alien v. Roger 025 
 
 Fitzgerald v. Fanconberge ... 18 
 
 V. Field 405 
 
 Fitzherbertv. Heatheote 280, 319, 326, 
 
 359 
 
 Fitzhnghe's Case 84 
 
 Fleet r. Murton 14 
 
 Fleetwood. Re 170 
 
 Fleming v. Fleming 284 
 
 Fletcher v. Dvcke 429 
 
 V. Fletcher . 120, 121, 357, 
 360 
 
 Flight V. Lake 79 
 
 Flinn i\ Calow 4 
 
 Foiston V. Crachroode 614 
 
 Foley V Addeubrooke 440 
 
 Foorcl ?'. Wilson 470, 477 
 
 Foot V. Berkly 139 
 
 Ford V. Hill {In re) 63 
 
 V. Stuart 6 
 
 V. Yates 15 
 
 Forshaw i\ Chabert 22 
 
 Forster r. Davies 525 
 
 Ee 382 
 
 Fort V. Ward ......... 204 
 
 Fortescue v. Hannah 530 
 
 Fosters. Mapes 486 
 
 r. Lister 148 
 
 Fothergill r. Walton 464 
 
 Fowell V. Forrest 138 
 
 Fowkes V. Manchester and Lon- 
 don Life Assurance 
 Association . . . 91, 94 
 
 r. Pascoe 350 
 
 Fowl-e r. Welsh 426 
 
 Fowler r. Dale 613, 614 
 
 r. Hunter 6 
 
 Fox v. Amhur.st 615 
 
 V. Hawks 298 
 
 V. Scard 432 
 
 Fox's Case 43,264,265 
 
 Foxley's Ca.se - . . . . 573 
 
 Frail r. Ellis 148 
 
 France v. Clark 28, 29 
 
 Francis v. Hay ward 167 
 
 V. Miiiton 178, 209 
 
 Francklyn r. Fern 6 
 
 Franklin's Case 271 
 
 Franklyn r. St. Cross 560 
 
 Franks r. Price 533 
 
 Fraser v. Skey 422 
 
 Frazer v. Pendlebury 141 
 
 Frederick r. Frederick . . .328,359 
 Freeland r. Pearson 365 
 
 32 
 
 Freeman d. Vernon r. West 
 Freme v. Clement .... 
 French v. Macale .... 
 r. I*atton .... 
 
 Fre.shfield v. Reed 
 
 Frogmortou d. Robinsjii v. Whar 
 
 432, 
 21 
 
 rey 
 
 Frowd's Settlement, L'r . . . . 
 Fry V. Lord Sherbbrue 396, 398, 
 
 Furnival r. Com1)es 
 
 Funsaker v. Robinson . . . . , 
 Fyfe V. Arbuthnot , 
 
 124 
 
 1 
 
 433 
 
 , 26 
 
 1 
 
 239 
 512 
 403 
 
 427 
 49!l 
 526 
 
 G 
 
 Gabay v. Lloyd 
 
 Gabb V. Prendergast . 236, 329, 
 
 Gaffee, Re 
 
 Gainsford r. Griffith . . 428, 470, 
 
 Gale V. Williamson 
 
 Galesworth3' r. Strntt 
 
 Galley ii Barriiigton 
 
 Gape r. Henley 
 
 Garde v. Garde 
 
 Gardner v. Sheldon 
 
 Garland r. Beverley 
 
 Garnish v. Wentworth 
 
 Garrickr. Camden (Lord) . . . . 
 
 Garth r. Baldwin 
 
 Gartside i\ Silkstoue, &c., Co 7, 
 
 Gascoigne r. Barker 
 
 Gaskell, Re 
 
 Gataker r. Reynardson 
 
 Gateward's Case 608, 
 
 Gawler v. Standerwick 
 
 Gayford r. Moffatt 
 
 General Finance Co. r. Liliernlor 
 
 Society 140, 
 
 Gennings r. Lake 
 
 Gerard v. Lewis 413, 
 
 Gerrard r. O'Reilly 
 
 Gerrarde v. Worseley 
 
 Gervis r. Peade 
 
 Gery r. Redman 
 
 Gibbon r. Mendez 
 
 Gibson v. Clark 
 
 Gibson r. Goklsmid 
 
 V. Small 
 
 Gier v. Ossiter 
 
 Gilford V. Manley 
 
 Gilbert r. Lewis 
 
 Gilb'ert.son r. Richards . . . •. ; ', 
 
 Giles V. Hooper 
 
 r. Jones 
 
 Gill eft V. Abbott 
 
 Gilmore v. Harris 233, 
 
 Girland r. Sharp 
 
 Gladholm v. Havs 
 
 IG 
 330 
 300 
 479 
 148 
 429 
 241 
 
 73 
 227 
 286 
 254 
 149 
 300 
 540 
 1-20 
 165 
 303 
 596 
 613 
 373 
 201 
 
 143 
 
 188 
 424 
 428 
 l.-iO 
 469 
 182 
 455 
 C8 
 463 
 11 
 46 
 421 
 299 
 267 
 420 
 558 
 144 
 236 
 267 
 455
 
 TABLE OF CASES. 
 
 XX^lll 
 
 [The paging refers to the [*1 pnses.] 
 
 Glave r. Harding 189, 193 
 
 Glazebrook r. NVoodrow .... 459 
 Glenorchy r. Bosville . 5:>;>, ooG, r>M 
 
 Glover r. Andrew l>;51 
 
 Glvn V. Baster 'Mf2 
 
 Ex pm-le 131 
 
 (Joblett V. Beechv 50 
 
 (; )dbold i: Freestone .... 2-29,-28>i 
 
 (ioddard's Ca.se 119, 123 
 
 CioiUrey's Case 560. 589,592 
 
 (Joihnaiidiester r. Phillips . . . 562 
 
 (ioldring r. Inwood 365 
 
 Giildsmid r. Great Eastern Ky. Co. 595 
 
 Goodiar i: Clarke 247 
 
 Goodier c. Clerke 247 
 
 Goodi.son c. Nunn 459 
 
 Goodman r. Mayor of Saltash 613,614 
 Goodman's TriLsts. i?<' .... . '.VM 
 Goodright d. Burton v. Rigby . . 236 
 d. Goodridge r. Good- 
 ridge 250 
 
 V. Moses 149 
 
 Goodtitle d. Dodwell v. Gibbs . 213, 
 
 216, 220 
 
 d. Edwards v. Bailey 40, 42 
 
 d. Hood r. Stokes . . . 284 
 
 d. Paul V. Panl .... 171 
 
 and Pettoe 150 
 
 d. Ivadtbrd v. Southern 171 
 d. Weston v. Burten- 
 
 shaw 256 
 
 Groodwin v. Clark 247 
 
 r. Noble 178 
 
 Gordon v. Gordon 331 
 
 V. Hope 404 
 
 V. Levi 360, 362 
 
 r. Kavnes . . . 378, 384, 405 
 
 V. Whieldon 281 
 
 Gorham t'. E.xeter (Bishop of) . 68 
 
 Gorissen v. Perrin 61 
 
 Goshawke r. Chickell 220 
 
 Goss V. Nelson 382 
 
 V. Nugent (Lord) 3 
 
 Gossage r. Taylor 239 
 
 Gould V. Barnes 126 
 
 V. Gould 552 
 
 Gower r. Grosvenor ..... 547 
 Gratrtev v. Ilumpage 308, 313, 314, 
 510, 517, 520 
 Grafton c. Eastern Counties Ky. 
 
 Co 456 
 
 Graham v. Wickham 530 
 
 Grant r. Maddox 16, 60 
 
 Grattan r. Langdale ....'.. 209 
 
 Gravely v. lianiard 432 
 
 Grave.s r.. Hicks 381 
 
 V. Legg .... 446,461,466 
 
 V. Long 461 
 
 r. White 417 
 
 3 INTKKl'KKTATIOX OF DEED.S 
 
 Gray c. Limerick (Earl of )134. 342,345 
 Great Northern Ky. Co. r. Harri- 
 
 s..n 413 
 
 Great Western Rv. Co. r. Swin- 
 
 don 
 Green r. 
 
 (i22 
 
 Belchier 379 
 
 V. Britten 298 
 
 d. Crew v. King 281 
 
 r. Ekins 537 
 
 V. Green 339 
 
 r. Price 429 
 
 Green's Case 100 
 
 Greenslade v. Dare 1.52 
 
 Greenwood v. Greenwood .... 81 
 
 V. Tyler 215 
 
 Grendon r. Lincoln (Bishop of) 561 
 
 Greneley's Case 281,537 
 
 Grenelife (E.xecutors of "i r. W 4><6 
 
 Gresty v. Gibson 127 
 
 Grey v. Friar 466 
 
 V. Pearson .... 36,40, 36. 97 
 
 V. Stewart 506 
 
 Grier r. Grier 53(), 543, 556 
 
 Grieveson r. Kirsopp 209 
 
 Griffin v. Clowes 2, 122 
 
 " 1). Tavlor 591 
 
 Griffith V. Buckle 536 
 
 Griffiths V. Pen.s; n 90. 160. 161, 169 
 Grimesby (Prior of ) r. B. ... 358 
 Grimestead r. Marlowe . . .6i!8, 613 
 
 Grose v. West 179, 182 
 
 Grugeon v. Gerrard 121 
 
 Grymes r. Peacocke 204 
 
 Gulliver d. Jeffreys v. Poyntz . . 588 
 
 Guy V. West 584 
 
 Gwvn V. Neath Canal Co. 79,H1,82,134 
 
 H 
 
 Haddlesey r. Adams 284 
 
 Haddon v. Ayres 439 
 
 Hagarty v. Nally 219 
 
 Haggerston v. Hanbury .... 42 
 
 Half head r. Shepherd 364 
 
 Hall V. Byron 204,615 
 
 I'. Brewery Co. (City of Lon- 
 don) "... 422,485 
 
 V. Cazenove 12:5 
 
 r. Chandless 28 
 
 V. Fisher 161 
 
 r. Hurt 38(» 
 
 V. .lauson 13 
 
 V. Pahuer 120 
 
 V. Peart 160 
 
 r. Seabright 44 
 
 Halh-lt r. Middlcton 494 
 
 Hailifa.x r. Wilson 396 
 
 Halton r. Foster 306 
 
 33
 
 XX uv 
 
 TABLE OF CASES. 
 
 [The paging refers to the [*] pages.] 
 
 Hanies ?'. Hames -514, l>ir> 
 
 Hamilton v. Att. Gen 72 
 
 r. James 517 
 
 r. Mills 258 
 
 Hamlin<;ton's Case 55!) 
 
 Hamiuersley, Re 22« 
 
 Hammond i\ Hammond lol, 505, 50() 
 
 r. Hill 487, 489 
 
 Hamond v. I)od 484 
 
 Hampson r. Brandwood . . 1526,542 
 
 Hanbury v. Tyrell 81 
 
 Hankinson r. Sandelands .... 436 
 
 Harbin v. Greene 60;5 
 
 Harcourt v. Spicer ...... 608 
 
 Harding, Ex parte 4:>6 
 
 ('. Ambler 151 
 
 Hardman r. Moffatt 3:56 
 
 Hardwic-k v. Hard wick 171 
 
 Hardy v. Martin 429,432 
 
 V. Martini 432 
 
 Hare r. Horton 90 
 
 V. Hhearwood 5 
 
 Hargreaves v. Diddams 578 
 
 Harman v. Kichards . . . . 6, 148 
 & Uxbridge Ry. Co. Re 144 
 
 Harnett v. Macdougal 303 
 
 Harper ?'. Bird . '. 419 
 
 V. Bnrgh 419 
 
 Harrington v. Lawrence .... 327 
 V. Pole ..'..... 622 
 
 Harrison r. Austin 41 
 
 V. Barton 281,2-^2 
 
 V. Blackburn 176 
 
 r. Naylor 546 
 
 ?^ Symons 322 
 
 r. Wright 429 
 
 Harrison's Trusts Be 627 
 
 Harslet ;•. Butcher 480 
 
 Hart V. Hart 47 
 
 V. Middlehurst .... 536, 543 
 
 V. Windsor 423 
 
 Hartford v. Power 299 
 
 Hartley i\ Tribber 330 
 
 Harvey v. Ashley 454 
 
 V. Aston". . . . 374,384,385 
 V. Municipal, &c., Build- 
 ing Society . - 152 
 
 flaslewood r. Green 254 
 
 Hastings', Lady Case 46 
 
 (Corporation of) v. I vail 70 
 
 Hatter r. Ashe 124 
 
 Hatton's (8ir Christopher) Case 149 
 
 Havelock r. Geddes 464 
 
 Havergill r. Hare 7 
 
 Hawes i\ Hawes 228, 283 
 
 Hawkes v. Hubback 300 
 
 Hawkins v. Gardiner 151 
 
 V. Hawkins 294 
 
 V. Kemp 7 
 
 34 
 
 Haydon v. Wilshere 322 
 
 Hayes v. Alliance. &c., Co . . . 298 
 V. Bickerstafte . . . 465, 484 
 
 V. Britlges 608 
 
 V Kingdome 281 
 
 Hayne r. Cvimmings 407 
 
 Haynes c. Hare 2, 5 
 
 Hay ton v. Irwin 14 
 
 r. Holliday 15 
 
 Hay ward r. Canniugton .... 627 
 
 V. Ope 5 
 
 Hay ward's Case . . 107 
 
 Healv r. Tliorne 71. 72 
 
 Heard v. Wadham 459, 461 
 
 Heath, Re 325, 405 
 
 r. Crealock 140 
 
 Hebblethwaite r. Cartwright . . 236 
 Heddy v. Wellhouse .... 595, 621 
 
 v. Wheel ho use . . .581, 623 
 
 Hedley r. Joans 120 
 
 Hellier r. Casbard 420 
 
 Hemans r. Picciotto 468 
 
 Henderson, i?e 316 
 
 Henfree r. Bromley 31, 34 
 
 Henn v. Hanson 138 
 
 Henning r. Burnett 185 
 
 Henty v. Wray . . 368, 370, 372, .573 
 Herbert r. Blunden .... 277, 533 
 
 Heion r. Stokes 359, 362 
 
 Herring v. Brown 7 
 
 Heshord v. Wills 623 
 
 Hesse r. Albeit 468 
 
 V. Stevenson 479 
 
 Hewisun r. Xegus 148 
 
 Hewet T. Ireland 329 
 
 Case 
 
 53 
 504 
 101 
 335 
 330 
 
 Hewley's. Lady, 
 
 Hext (". Gill .' . . . 
 
 He}' ward's Case . . . 
 
 Hevwood V. Heywood 
 
 Hii)bert r. Hibbert .. 
 
 Hibblewhite v. Mc^Ioriuo .... 29 
 
 Hickman's Case 621 
 
 Hide V. Whistler 631 
 
 Higgenson r. Barneby 556 
 
 Higginbottom's Case . . . 493, 494 
 
 Highway r. Banner 537 
 
 Hilbers ('. Parkinson 39.531 
 
 Hill V. Carr 409 
 
 r. Crook :'.29. 330 
 
 V. East & West Ind ia D.jck 
 
 Co 47, 56 
 
 V. Grange . . . 77,-79, 188, 603 
 V. Hill. . . . 553. 554, 555, 556 
 V. Manchester Waterworks 140 
 
 Hillman, Ex parte 149 
 
 Hills r. Cooper 84 
 
 Hinchinbroke r. Seymour . . 369 
 
 Hinton r. Sparkes, 429 
 
 Hix r. Gardiner 603
 
 TABLE OF CASES. 
 
 XXXV 
 
 [The paging refers 
 
 Hoare r. Hornby 515 
 
 Hobson r. Middleton 490 
 
 Hodgson r. Bussv ...... 2(Jl 
 
 r. Field 100 
 
 Hodsel r. Bussy 2()1 
 
 Hodson r. Coppard ...... 41:5 
 
 Hofitr v. Cross 217, 2-22 
 
 Holdeu V. Sniallbrooke 2:l(i 
 
 Holder v. Tavloe 411 
 
 r. Taylor 422 
 
 Holding V. Pigott 12 
 
 Holdsworth r. Fairfax 559 
 
 Holtord V. Bailev 577, 578 
 
 Holland r. Holland 421 
 
 Holies V. Carr 409 
 
 Holliday i'. Overton .... 1:50, 277 
 
 Hollis 1-. Carr 14:5, 409, 4 1« 
 
 Hollo way v. Clarkson 314 
 
 r. Holloway 47 
 
 r. Smitb 623 
 
 Holmes r. Bellingham lt*3 
 
 V. Goring 192 
 
 r. Ivy 82 
 
 V. Seller .... 42, 184, 630 
 
 Holroyd v. Breare 592 
 
 r. Marshall 408 
 
 Holt r. Col Iyer 55 
 
 V. Koper 139 
 
 Homer v. Homer 164, 171 
 
 Honor r. Honor 5:57,5:58 
 
 Honywood v. Honywood .... 125 
 
 Hood r. Franklin 526 
 
 Hooper's Trust. lie 526 
 
 Hope r. Clifden 404 
 
 r. Harman 120 
 
 Hopehill r. Searle 83 
 
 Kopjiood V. Ernest . 7 
 
 Hopkinson v. Lee 441 
 
 V. Lusk . . . . i:J7, 178 
 
 Hore V. Dix 41 
 
 Hornc v. Barton 556 
 
 Horner r. Flintoff 429 
 
 Horseman r. Abbey . . . . :514, 3:53 
 
 Horslall v. Hey 144 
 
 r. Testar 468 
 
 Ifoskins ?•. liobins 614 
 
 Hotchkin r. Hiimfrcy 405 
 
 Hotbam r. East India Coy . . . 447 
 
 Houston r. Barry 405 
 
 Howard v. Ducane 6:5 
 
 r. Hopkvns 4:52 
 
 V. Maitland 48:5 
 
 r. Shrewsbury (Earl of) 1:50, 
 1:54, 163 
 
 f. Woodward 4:53 
 
 Howard's Trusts, lie :52:5, 375, 377. 
 :{H4, 3S.-) 
 
 Howel V. Howcl 5:57 
 
 Howell r. Gayler 314 
 
 to the [•] pages.] 
 
 Howell r. Richards 470, 475, 479, 481 
 
 Howes V. Brushtield 489 
 
 Howgrave r. Cartier . . 397, 400, 404 
 
 Howman i"t Others G17 
 
 Howton V. Freavson 192 
 
 V. Pearson 201 
 
 Hubert v. Parsons 384. 392, 393. 394 
 
 Hudson r. Clemeutson 60 
 
 V. Macrae 578 
 
 r. Reyett 27 
 
 Hudson's Case (Lady) . ... 23 
 
 Hughes V. Bennett 480 
 
 r. Humphreys . . . .462 
 
 r. Rickman 41)0 
 
 V. Statham 4 
 
 Trust, nc 5-20 
 
 V. Young 521 
 
 Hulbert v. Long 83 
 
 Humble v. Langston 29 
 
 Hume V. Rundell 78 
 
 Humfreston's Case 337 
 
 Humfrey r. Dale .... 11, 14, 15 
 
 Humi)hries, Ee '3:50 
 
 Humphrey v. Tayleur 283 
 
 Hungerford r. Becher 143 
 
 Hungerford's Case 106 
 
 Hunt V. Allen 4^5 
 
 r. Bishop 209 
 
 r. Burn 560 
 
 v. Dan vers 482 
 
 I'. Remnant 209 
 
 r. White i:;7. 481 
 
 Hunter r. Tedlie 310,311 
 
 Huntingdon v. Mountjoy .... 184 
 Hurd V, Fletcher, ...'.... 491 
 
 Hutchins ?•. Scott 25. :52 
 
 Hutchinson v. Bowker (51 
 
 r. Tatham 13 
 
 Hutley r. Marshall 112 
 
 Hntton V. Warren 10, 12 
 
 Hnzzey v. Field 575 
 
 Hynes' r. Rediugton . . 362, 384, 387 
 
 I 
 
 Ibbetson r. Grote 530 
 
 Idle r. Cooke 225, 2:5:5, 250 
 
 Iggulden r. May 9. 74, 75, 407, 420,422 
 Im]>erial Bank 1: London & St. 
 
 Katherine Docks 1-1 
 
 Inglebv V. Swilt 1:50 
 
 Inglclield v. Coglilan 299 
 
 Inglis V. Buttery 47 
 
 Ipswich (Inhabitants of) v. Brown 575 
 
 Iroson r. Pcarman 244 
 
 Irnham (Lord) v. Child .... :55 
 
 Isaacs r. Green 127 
 
 Isaacson v. llarwood .... 418, 421 
 
 35
 
 XXXVl 
 
 TABLE OF CASES. 
 
 [The paging refers 
 
 Isherwood v. Oldknow B'S 
 
 Iven V. Elwes, . .143, 145, 410, 418 
 
 Ive's Case 594, 6:31 
 
 Ivison V. Gassiott HT 
 
 Ivy V. Gilbert • ■ ■ ^^^ 
 
 Jack r. Mclntyre 166, 173 
 
 d. Westby v. Featherstone 233, 
 235 
 
 Jackson r. Dover 281 
 
 V Jackson 281 
 
 V. North Eastern Ry. Co. 144, 
 418 
 
 Be . . 356, 512 
 
 Jacobs V. Amyatt 299 
 
 James i'. Cochrane 411,415 
 
 V. Dnrant 516. 517 
 
 V. Emery 438. 441 
 
 V. Plant 195 
 
 V. James . ., 516 
 
 %). Johnson 624 
 
 Re 128 
 
 Janes v. AVhitbread 126 
 
 Jardine, Ex parte 170 
 
 Javne v. Hughes ........ 120 
 
 Jeaftreson's Trusts, Re 263 
 
 Jeffery v. Jeftery 405 
 
 Jeffrey's v. Revnous 403 
 
 V. Small 281 
 
 Jeffryes r. Evans 485 
 
 Jehu Webb's Case 623 
 
 Jeinmot v. Cooly 246 
 
 Jenkins v. Green 107 
 
 V. Quinchant 365 
 
 V. Young . . . 268, 270, 271 
 
 Jenuer v. Jenner . 135 
 
 Jenning v. Roche 617 
 
 Jennings v. Blencowe 495 
 
 Jerman v. Orchard 220 
 
 Jermyn v. Fellowes .... 348, 349 
 
 Jervis v. Wolferstan 530 
 
 Jervoisejj. Northumberland, Duke 
 
 of 535 
 
 Jeston i\ Key . ..." 454 
 
 Jeudwine v. Agate 433 
 
 Jeyes r. Savage .... 399, 400, 405 
 
 Johnson v. Barnes 612 
 
 ' V. Edgware, &c., Ry. Co. 94, 
 
 176 
 
 V. Ravlton 16 
 
 V. Webster 206 
 
 Jolly V. Arbuthnot 142 
 
 Jones V. Cannock 456 
 
 V. Frost 142 
 
 V. Heavens 432 
 
 V. Jones 28 
 
 36 
 
 to the [*J pages.] 
 
 Jones V. Kearney 496, 527 
 
 V. King 497 
 
 V. Langton 536 
 
 V. Martin 530 
 
 V. Morley 7, 44, 266 
 
 Will Re 519,520 
 
 Jopp V. Wood 361, 384, 387, 393, 395 
 
 Jordan v. Attwood 201 
 
 Judson V. Bowden 453 
 
 K 
 
 Kane v. Kane 508 
 
 Kay V. Oxley . . .188, 193, 196, 197 
 Kean v. Strong . . . 422, 470, 472 
 
 Keane r. Smallbone 27 
 
 Keay v. Boulton 260 
 
 Keays v. Lane 300 
 
 Keele v. Wheeler 18 
 
 Keightley v. Watson . . 4:>7, 438, 442 
 
 Kell V. Charmer .56 
 
 Kelner r. Baxter 427 
 
 Kemble v. Farren . . . 428, 429, 430 
 
 Kendall v. Hamilton 436 
 
 V. Micfield .... 218, 219 
 
 Kenisham v. Redding 89 
 
 Kennedy v. Green 152 
 
 Kensington v. Dolland 297 
 
 Kentish v. Newman . . . .81, 549 
 
 Kerr v. Kerr 213,215 
 
 Kerslake n White 189 
 
 Kew V. Rouse 284 
 
 Kidd V. Boone 425 
 
 V. Frasier 306 
 
 Kidner r. Keith 122 
 
 Kilner r. Leech 308 317 
 
 Kimberly v. Tew 400 
 
 King ?'. Accumulative Assurance 
 
 Co 413, 415 
 
 r.Ellis 578 
 
 r. George 170 
 
 V. Hake 396. 404 
 
 V. Jones 497 
 
 V. Lucas .300, ,529 
 
 V. iMorris 584 
 
 V. Sal way 75 
 
 The. .sr^'Rex 
 Kingston r. Prest tn . . 447. 460, 470 
 
 Kirl)V V. Hansaker 484 
 
 Kirk c. Paul in 299 
 
 Kirkman & Reignold's Case . . 215 
 
 Knight r. Cole .^ 138,208 
 
 r. Gravcsend. &c., Co . . 413 
 
 V. King 613 
 
 v. Pursell Ift4, 607 
 
 Knill )•. AViUiams 23 
 
 Knotsford v. Ecks 42 
 
 V. Gardiner 178
 
 TABLE OF CASES. 
 
 XXXVU 
 
 Knowlcs. Re 
 Kuox c. Wells 
 
 [T^e paging refers to the [*] pages.] 
 
 . 40-2 
 
 . 280 
 
 Lacy V. Kiiiaston 46 
 
 Lainson r. Tieiuere 4, 140 
 
 I.aird v. Briggs 47, 62, 76 
 
 V. Tobin 47 
 
 Lake y. Craddock 2S1,2S2 
 
 r. Gibson 281, 282 
 
 Lainbe v. Keaston 169 
 
 Lambert c. Peyton 542 
 
 r. Tliwailcs . 361, 363, 364, 
 366 
 
 Lanibourue v. Cork 151 
 
 Lampon r. Corke . . . 137, 138,151 
 
 Uliue r. Coups 337 
 
 V. Cowper 337 
 
 r. Drinkwater 441) 
 
 V. Pannell 239 
 
 Langdon i\ Goole 83 
 
 Langfbrd v. Pitt 495 
 
 Langliam r. Nenny 294 
 
 Langhorn r. Cologan 22 
 
 Langlay v. Hammond 193, 194, 195, 
 
 197 
 Lanning r. Lovering . . . .487,489 
 Lansdowne v. Lansdovvne ... 76 
 
 Lant ('. Norri.s 409 
 
 Large v. Cheshire 461, 465 
 
 Lascelles r. Onslow (Lord) . . . 627 
 
 La.«sels r. Catterton 494 
 
 Law r. Urlwin 45 
 
 Lawrence v. lioston 87 
 
 V. Hitch 624 
 
 ?'. .Jenkins 
 
 V. Maggs . 360, 362, 
 
 Lawric r. Lees 2 
 
 Lawson r. Burn ess 60 
 
 Lay V. Mottram . . 143, 417, 419 
 
 Lazarus r. Andrade 4(19 
 
 Lea r. Whitaker 429 
 
 Leach ?•. Jay 63 
 
 Leahy v. Dancer 148 
 
 Lee r. Alexander 3 
 
 V. Browne 100 
 
 r. Lee 505, 520 
 
 r. Prieaux 299 
 
 Lee's Ca.sc; (Sir Thomas) .... J06 
 
 Leech r. Leech 23 
 
 Leeds, &c.. Bank v. Walker . 19, 23 
 
 585 
 390 
 
 Lees V. Lees 
 
 144, 54 H, 
 
 Legg v. (rohlwire 53H 
 
 V. Harlock 12^< 
 
 Leggott 7'. Barrett 3,130 
 
 Legh r. Lillie 431 
 
 Leicester Forest (Case of) ... 580 I 
 
 Leicester's (Earl of ) Case .... 7 
 
 Leideniann v. Wchultz 60 
 
 Leifchild's Case 147 
 
 Leigh V. Brace 249 
 
 r. (rotyer 484 
 
 *. Jack 184 
 
 r. l.cigli 128 
 
 r. Norbury .... 320, 322 
 
 Leighton r Wales 409 
 
 Leonard v. Hu.ssex .... 541, 546 
 
 Lc Kousseau v. K'ede 261 
 
 Leventhorpe v. Ashbie 260 
 
 Lever v. Hosier 168 
 
 Levett V. Withrington 481 
 
 Levin v. Weatherall 291 
 
 Levy ('. Sale 441 
 
 Lewen and Mody's Case . . . .139 
 
 Lewis Bowles' Case 319 
 
 Lewis V. Hellior 492 
 
 r. Madocks ,525 
 
 r. Marshall . ... 57, 59 
 
 r. Matthews 299 
 
 r. Payne 25, 32 
 
 V. Kees 275 
 
 Leyfield's Case • 17 
 
 Lifidard v. Liddard 548 
 
 Li ford's Case 190, 631 
 
 Lilley t?. Whitney 220 
 
 Lilly V. Hodges 441 
 
 Lincoln i\ Pelham 357 
 
 V. Wright 5 
 
 Lindo V. Lindo ],38 
 
 Lindow 11. Fleetwood .... 55.3, 556 
 
 Lindsay v. Ellicott 317 
 
 Lindseil v. Thacker 299 
 
 Line v. Stephenson . . .90, 422, 424, 
 472, 478 
 
 Lisle r. Gray 256 
 
 Lister r. Pickford 164 
 
 Litchfield (Vicars Choral of) v. 
 
 Ayress 167 
 
 Littlehani r. St. Leonards ... 25 
 Littleton & Peine's Case .... 45 
 Llanclly Ky. Co. r. London & 
 
 North-Western Ky. Co ... . 147 
 Llewellyn v. Jersey'(Earl of) 1.58. 166 
 
 JJewelyn r. Williams 120 
 
 Lloyd r. Cocker 405 
 
 r. Lloyd .... 47, 137, 454 
 
 V. Tnmkics 485 
 
 Lock r. Writiht 148 
 
 Lodcr r. I,(i(lcr .'!fi5 
 
 Logan r Wimlioli .... l:;2. i;!3 
 Ijondoii (('dip ii'.itidii ' f I r. K'iuiis 
 
 l9->. 201 
 London I^'inanciiil .\ssnciatioii r. 
 
 Kelk 47 
 
 London Gas LiglitCo. r. Chelsea 
 Vestry 147, 463 
 
 37
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 [The paging refers 
 London Guarantee Co. v. Fearn- 
 
 ley 447, 451 
 
 London and South Western Ry. 
 
 Co. V. Blackiuore 138 
 
 London (Mayor &c., of) v. Long . 73 
 London v. Southwell .... 558, 561 
 London's (City of) Case . . . .582 
 
 Long r. Buckeridge 268 
 
 r. Heming 558 
 
 i\ Henimings 558 
 
 Lonsdale r. Rigg 565 
 
 Lord V. Commissioners of Sydney 183 
 
 Love ('. Pares 426 
 
 Lovel's (Lord) Case 231 
 
 Lovie's Case 361 
 
 Lowe V. Peers 428, 429 
 
 Lowther v. Condon .... 369, 37G 
 r. Westmoreland (Earl 
 
 of) 257 
 
 Lucas r. Brandreth . 277, 296, 307 
 
 V. Bristow 14 
 
 Lucton School v. Scarlett .... 74 
 
 Lucy V. Englefield 42 
 
 V. Leviston 486 
 
 Ludwell V. Newman 481 
 
 Luke V. South Kensington Hotel 
 
 Co 2 
 
 Lutterell's Case 589, 591 
 
 Lyall V. Edwards . . - 138 
 
 Lyburn v. Warrington . . . . G, 18 
 
 Lyddon r. Ellison 350 
 
 Lyie r. Richards 161 
 
 Lynch ')'. Nelson 218 
 
 Lyndon v. Standhridge . . . 174. 178 
 Lvnue's (Mayor and Burgesses of) 
 
 'Case 127 
 
 Lvster v. DoUond 281 
 
 M 
 
 MacAndrew v. Gallagher ... 42 
 M'Carogher v. Wheldon .... 530 
 
 M'Cleau v. Kennard 2 
 
 M'Clintock v. Irvine 278 
 
 MacDonnosh v. Stafford .... 125 
 
 Machil r. Clerk ....... 271 
 
 Mackenzie r. Mackenzie . . . .313 
 
 Mackenzie's Settlement, Be 511. 512, 
 524, 526 
 Mackintosh v. Midland Counties 
 
 Ry. Co 463 
 
 McLaren v. Baxter 127 
 
 Maclurgan v. Lane 136 
 
 Macnamara r. Carey . . . 132, 133 
 Macouhrey v. Jones . . . 339, 346 
 Madock v. Jackson . . . 362, 364 
 
 Magee r. Lavell 429 
 
 Magennis v. MacCullogh .... 25 
 
 38 
 
 to the 1»J pages.] 
 
 Magrane ?'. Archbold 433 
 
 Maguire r. Scully . . 536, 542, 545 
 
 Maitlaud v. Mackinnon 188 
 
 Mainwaring's Settlement, Ee . . 508 
 
 Major r. Salisbury 138 
 
 Makepiece v. Fletcher ... . 232 
 Malcomson v. O'Dea . 476, 577, 583 
 
 Mallett V. Mallett 5r5 
 
 Mallory's Case 230 
 
 Maltalent v. De Romyley . . 612, 625 
 Manchester College v. Trafford . 97 
 Maudeville's Case . . 237, 239, 287 
 
 Manlove ??. Bale 6 
 
 Manning's Case 246 
 
 Mara v. Manning 300 
 
 March Re . . 281 
 
 Margetts ?). Bariinger . . . . . 299 
 
 Mariot r. Mascal 127 
 
 Markham v. Fox 26 
 
 V. Gonaston 26 
 
 Marler v. Toninias 144 
 
 Marryatt v. Marryatt 418 
 
 Marshall v. Baker 325 
 
 r. Collett 315 
 
 V. Frank 45, 178 
 
 r. Peascod 228 
 
 V. Ulleswater Co. . 182, 578 
 Marsham r. Hunter .... 203, 204 
 Marshe and Smith's Case . . 594, 595 
 Martyn v. McNamara .... • . 468 
 
 Martyr r. Laurence 1 68 
 
 Mason i\ Chambers 100 
 
 Massey r. Parker 299 
 
 Massy v. Rowen 297, 299 
 
 Master v. De Croismar 556 
 
 V. Miller ... 19. 21, 23, 34 
 
 Mather r. Eraser 90 
 
 Mathew v. Blackmore 90 
 
 Mathewson's Case :50. 435 
 
 Mathewson r. Lydiate . . . 30, 435 
 Matthew r. Purchings ... 56, 83 
 
 Matthews, Re 128 
 
 r. Temple . 280, 282, 359 
 
 Matlock V. Kinglake 451 
 
 Matts V. Hawkins 607 
 
 Maugham r. Sharpe 126 
 
 Mavor r. Davenport 421 
 
 Mav r. Woodward 436 
 
 Mavhew v. Middled itch .... 372 
 
 MaVn r. Mavn 282, 584 
 
 Mead's Trusts. Re ... . 325, 364 
 
 Mease r. Mease 3 
 
 Med worth r. Pope 331 
 
 Megson v. Hindle 329 
 
 Melbourne Banking Corporation 
 
 r. Brougham 142 
 
 IMellington v. Goodtitle .... 565 
 Mellor r. Spatf-man . . . .609,613 
 Meudham v. Williams 402
 
 TABLE OF CASES. 
 
 XXXIX 
 
 [The paging 
 
 Mercer v. Irving 
 
 Aleredith r. Fair 
 
 r. Joans '2^iS, 
 
 He 
 
 /•. Tieirry . . . . I'JG, 
 Merrill v. Frame . . DO, •1-24, 
 
 V. lianisay 
 
 Mervyn v. Lyds UHJ, 
 
 Meryon r. CoUctt 
 
 Metcaile V. Hiitehinsim . . . oTS), 
 Metropolitan District Ky. Cj. anil 
 
 Cosli, Re ' 
 
 Mexhorough r. Wood 
 
 Meyler v. Meyler 
 
 Meyrick v. Whishaw 
 
 Michael r. Scockwith 
 
 Michell's Trusts. Itc . . 133, rv23, 
 
 Middleton v. IJarker 
 
 Midland Kaihvay v. Checkley . . 
 Ry. Co. r. iraunchwood 
 
 Miiinan r. I'arrv 
 
 Mildniav's Case 146, 
 
 Mill r. ilill 
 
 Millar i: Turner 
 
 Miller v. Gulson 
 
 V. Main waring 
 
 V. Tetlieringtou 
 
 r. Travers 
 
 Mills r. Banks 
 
 r. Lad broke 
 
 Milner r. Harewood 
 
 V. Milner 298, 
 
 Minor's Trusts, lie 3G7, 
 
 Mitclicll /•. Darthez 
 
 MitcheH's Trusts, Ec ... 523, 
 
 Mitford c. Peile 
 
 Mocatta v. I.indo 403, 
 
 Molyneux's I-:state. Ee . . . 298, 
 
 Montrose Peerage Case 
 
 Monypenny v. Monvpenuv . 37, 
 7(), 143, 
 
 Moody V. Lewen 
 
 Moon r. Wliitney Union .... 
 
 Moor ('. Parker 
 
 Moore v. Foley 
 
 V. Magiath . . . 133, 137, 
 
 r. Morris 21)7, 
 
 r. Ivawson 
 
 Morgan F.x jxirtc T), 
 
 r. Hunt 4d2, 
 
 V. Morgan 
 
 ('. Thomas ,320, 
 
 Morgan's Patent Ain'lior Co. v. 
 
 Morgan 
 
 Morley r. Iiird 
 
 ?'. Cli fiord 
 
 Morrell r. I'-Jslier 157, 
 
 Morris r. Jiarrett 
 
 V. Cuutle 
 
 refers to the ['J pages.] 
 
 429 , Morris r. Dimes 629 
 
 r. Edgiugtou . . 18S, 192. 493 
 
 V. If owes 314, 333 
 
 V. Mil lord 138 
 
 V. Smith ,595 
 
 Morse r. Faulkner 196, .527 
 
 and Wel)))'s Case .... 615 
 
 Mortimer r. Slater 311 
 
 . 157 
 
 330 
 
 271 
 
 37 
 
 337 
 
 478 
 242 
 115 
 
 315 Mortimer's (Margery) Case 
 
 380 
 
 591 
 429 
 278 
 291 
 
 35 
 524 
 278 
 604 
 604 
 538 
 150 
 
 80 
 328 
 144 
 
 13 
 163 
 
 380 
 442 
 529 
 472 
 392 
 455 
 524 
 507 
 406 
 300 
 
 68 
 47, 
 413 
 1.39 
 
 15 
 243 
 407 
 173 
 300 
 61 1 
 141 
 4H(; 
 219 
 327 
 
 419 
 
 282 
 614 
 158 
 281 
 260 
 
 :\Iorton r. Woods . . . 81,141,142 
 
 Moseley r. Motteanx 140 
 
 Moser v. Piatt 16,3 
 
 Mostyni'. Mostvn 362.384.390,396,404 
 V. West Mostyn Coal Co . 423 
 
 Mounson r. I\edshaw 572 
 
 Mount V. Jlodgkin 139 
 
 r. Mount 384 
 
 Mountjoy's (Lord) Case . . 42, 184 
 Mucklestone r. Thomas .... 420 
 
 .Mumlord r. Gething 61 
 
 Mniidy u. Rutland (Duke of) . .105 
 
 Mnsgrave r. Cave ()08 
 
 Mns.set V. Biireh 578 
 
 Mutton's Case 280 
 
 Myers v. Sari 57, 60 
 
 N 
 
 Naldred r. Gilham 120 
 
 Nandicke or Naudike v. Wilkes 433, 
 
 536, 543 
 
 Napper r. I.,ord Allington .... 494 
 
 Nash V. Ash ....... . 42, 272 
 
 t\ Ash ton 47.5 
 
 V. Aston 493 
 
 V. Flyn 121 
 
 V. Palmer 484, 480 
 
 Nash, Ee 294 
 
 Navlor v. Wealherell .361 
 
 Neale v. Patclirt" 466 
 
 Neale's Trusts, Ec 134 
 
 Neame r. Moorsom . . . 131.209 
 Neath Canal Co. t\ Ynisarwed 
 
 lie.solven Colliery Co 184 
 
 Ncedham r. Smith 530 
 
 Neill r. Devonshire ( Duke of )71, 75, 
 
 94, ,577, .579, .590, 614 
 Nelthorpe iS: Farrington v. Dorring- 
 
 ton '. 24 
 
 Nervin r. Munns 75 
 
 Nevil'sCase 621 
 
 Nevill r. Nevill 2;!->. 290 
 
 Newca.stle, Corporation of, r. Att.- 
 
 (;en 68 
 
 Newcastle r. Lincoln 517 
 
 Newcomcn v. Couls;)n 198 
 
 Newman, Re 429, 430 
 
 Newport V. Bryan 121 
 
 39 •
 
 xl 
 
 TABLE OP CASES. 
 
 [The paging refer. 
 Newson v. Smithies .... 4.3.J, 4fl"2 
 
 Newton v. Cubit t . r*?.) 
 
 V. Osboru 4-2U 
 
 Nichloson v. Wordsworth .... 40 
 Nic'hohis c. Chamberhuii .... 188 
 
 Nic-holls V. Mitfcjid 627 
 
 Nichols V. Haj'wood 34 
 
 Nicol V. Beaumont . . . ^. . . . 179 
 
 Nightingall v. Smitli 171 
 
 Nind i\ Marshall . . . 'J7, 470, 477 
 
 Ni.Kon V. Hamilton 146 
 
 Noble V. Kennoway 13 
 
 Noel r. Bewley . " . 495, 496, 499, 527 
 
 Nokes r. James 478 
 
 Nokes' Case . 90, 422, 424, 425, 478 
 
 Nokes r. 138 
 
 Noon V. Lyon 308 
 
 Norden Steam Comjiany r. Demp- 
 
 sey 16 
 
 Norfolk ('. Arbutlmot 566 
 
 Norman v. Foster 475, 479 
 
 Norman, Re 335 
 
 Norris t\ Le Neve 586 
 
 V. Sadleir 421 
 
 North V. Chamjieinoon 277 
 
 ( Lord) f. Ely ( Bishop of l90, 174 
 
 r. Martin . ' 257 
 
 North Stafford Steel Co. v. Ward 89 
 Northam v. Hurley .... 43, 408 
 Nortluunberland (Duke of i v. Er- 
 
 rin<i;t on 479 
 
 Northumberland (Earl of) r. Egre- 
 
 mont (Earl of) 77. 344 
 
 Northumberland (Dnke of) r. 
 
 lioughton 581 
 
 Nottage /•. Buxton 402 
 
 Nottingham (Mayor of) r. Lam- 
 bert 623 
 
 O 
 
 Oakley v. Young 284 
 
 Occleston v. Fullalove 331 
 
 O'Donnell u. O'Donuell . . 65,558 
 
 Osiilvie V. Foljambc 4^1 
 
 Ognell'sCase -. .160,583 
 
 O'Halloran r. King ?,0?> 
 
 O'Hare v. Fahy 627 
 
 Okcden r. Okeden 380 
 
 Olivante r. Wright 250 
 
 Oliver ?). Fielden 455 
 
 O'Neill V. Bell 14 
 
 Ongley v. Chambers 189 
 
 Ordeway v. Ormc 613 
 
 Orford (Mayor of I v. Richardson 577 
 
 Orlebar, Ee"^ 396.405 
 
 Orme, Re ... . 384, 388, 394, 405 
 Orme's Case 269 
 
 40 
 
 to the [*] pages.] 
 
 Orr Ewing v. Colquhoun .... 183 
 
 Osborn v. Churchman 43 
 
 Osborn's Case 83 
 
 Osbrey r. Bury 362 
 
 Osbustou V. James 623 
 
 Usenay's (Abbot of) Case .... 79 
 
 Oshey v. Hicks 119 
 
 Osman r. Sheafe 41 
 
 Osmere r. Sheafe ' 41 
 
 Otter ?•. Melvill 515,516 
 
 ?'. Lord Vaux 495 
 
 Otway's Estate, In re 162 
 
 Owen V. Smyth . ." 240 
 
 Owen's Trusts, Re 130 
 
 Oxford's Case (Bishop of) .... 585 
 
 Packham v. Gregory . . . 
 
 . . 377 
 
 Padwick r. Knight . . . 
 
 . . 613 
 
 Page ('. Sojier 
 
 . . 314 
 
 Piget'sCase 
 
 . . 149 
 
 Palmer v. Blackburn . . . 
 
 . . 61 
 
 V. Cracroft . . . 
 
 . ;i2K 
 
 V. Fleshees .... 
 
 . . 191 
 
 V. Fletcher . . 
 
 . . 190 
 
 V. Johnson .... 
 
 . . 3 
 
 ('. Stone 
 
 . . 615 
 
 Papillon r. Voice . . '. 
 
 . . 541 
 
 Paris, SocictcGuii^'rale de. v. 
 
 Tram- 
 
 ways Co., Limited . . . 
 
 . . 28 
 
 Parker v. Hodgson .... 
 
 . . 382 
 
 Parkins v. Hiudc .... 
 
 . . 570 
 
 Parkhurst c. Smith . . . 
 
 37, 76, 82 
 
 Parkinson v. Dashwood . 
 
 . . 528 
 
 Parry n. Allen 
 
 . . 45 
 
 V. Dale 
 
 . . 84 
 
 Parteriche v. Powlett . . 
 
 2 
 
 Partyn r. Roberts .... 
 
 . . .539 
 
 Patch V. Shore 
 
 . . 5:50 
 
 Pate r. Brownlow .... 
 
 . . 61<) 
 
 Pattenden v. Holison . . . 
 
 . . 257 
 
 Pattius^n v. Buckley . . . 
 
 . . 19 
 
 Paul V. Paul 
 
 . . \1\ 
 
 Pawlet V. Pawlet .... 
 
 369, 375 
 
 Pawson V. Brown .... 
 
 . . %)l 
 
 Payler v. Homersham . . 
 
 . . i:;8 
 
 Peacock v. Eastland . . . 
 
 . . 2:;i) 
 
 V. Monk .... 
 
 146, 147 
 
 ?•. Pares .... 
 
 . .316 
 
 r. Spooner . . . 
 
 . . 262 
 
 Peacock's Trusts, Re . . . 
 
 . . •?98 
 
 Peake v. Penlington . . . 
 
 . . ■ '•> > 
 
 Pearce v. Graham .... 
 
 . . 531 
 
 1?. Scotcher .... 
 
 . 579 
 
 V. Watts 
 
 . . . 105 
 
 Pearse r. Baron 
 
 . 554. 556 
 
 Pearson v. Spencer .... 
 
 . . 192
 
 TABLE OF CASES. 
 
 xli 
 
 [The paging refers 
 
 Pedder's Settlement Trusts, A'c ! 
 
 313, 519 \ 
 
 Pedley r. Dodds 159 
 
 Pelis t^ Jervit's Case 4()U 
 
 Pelham r. Pickersgill ... . G"J 1 
 Pelly V. Koyal Kxchauge A.ssur- 
 
 ance Co 13 
 
 Penn r. Cilover 48(i 
 
 Penuing r. Piatt 485 
 
 Perfect v. Lord Curzon . . . 397, 404 
 
 Perkins r. Tliornton 454 
 
 Perrott v. Perrott 34 
 
 Perry r. Edwards 48ti 
 
 r. Watts 4-2 
 
 Pet & Galley's Case 493 
 
 Peter v. Kendal 575 
 
 Petty V. Styward 282 
 
 Phene's Trusts, Be 3G4 
 
 Phevsev r. Vicary 192 
 
 Phillips r. Ball 595 
 
 V. Briard 14 
 
 r. Clift 462 
 
 V. Edwards .122 
 
 r. Gibbons 144 
 
 V. James 232. 294, 53(J, 543, 
 
 544 
 
 Pibus (or Pvbusi r. Mitford . .115, 
 
 239, 243, 287 
 
 Pierson r. Garnett . 345 
 
 Pilot's Case 20,21,24,33 
 
 Pils worth V. Pyev 218 
 
 Pini r. Curell 575 
 
 Pi7icombe r. Kudge 411 
 
 c. Thomas 031 
 
 Pinder r. Pindcr 311 
 
 Pinnington v. (iarland . . . 192, 201 
 
 Pitfield's Case 377 
 
 Pits r. James 127 
 
 Place r. Fagg <)03 
 
 Plant r. James 1S8 
 
 Plnmstead Board of Works r. 
 Briti.sh Land Company . . 180, 183 
 
 Pogson r. Thomas 1()4 
 
 Polden r. Bastard 190 
 
 Polley r. Pollev 254 
 
 Pomfret v. Kicioft 201 
 
 Poole r. Hill . .' 442 
 
 Pope r. Whitcombe 17(i 
 
 Pordage v. Cole . 1, 411, 42fi, 448. 449, 
 451, 451, 158, 4f)0 
 
 Porter v. Fox 350 
 
 r. Shepherd 447 
 
 r. S wet nam 120 
 
 Portman r. Mill 558 
 
 Portmore r. Morris 1 
 
 Pott r. r.rassey 507. 50H 
 
 r. Todhuiitcr 14^ 
 
 Potter r. North 580, (;14 
 
 Pougett V. Tomkyns 125 
 
 to the [•] pages ] 
 
 Poulet r. Poulet 3fi9, 375 
 
 Poulson r. Wellington . . . 4(i, 144 
 
 Poussard r. Spiers 462 
 
 Powell V. Divelt 23 
 
 r. Hurton 61 
 
 r. Price .... 536, 537, 545 
 
 r. Smith 107 
 
 Powis r. Burdett . . . 377. 404, 405 
 
 Powys c. Manslield 350 
 
 Pratt r. Groome 573 
 
 V. Mathew . . ,331, 334, 335 
 Prebble r. Boghurst . 433,511, 530..543 
 
 Price i: Jenkins 1^9 
 
 V. Price 116 
 
 Prichard r. Ames 299 
 
 Primrose v. Bromley 436 
 
 Prince i: Green 1.50 
 
 Pringle r. Pringle 2.-9, 294 
 
 Prison Commissioners, The, r. 
 
 Clerk of the Peace for Middlesex 4 
 Pioctor V. Hodgson . . . . . .192 
 
 r. .Johnson 425 
 
 Prowse r. Abingdon .... 373, 383 
 
 r. Worthinge 361 
 
 Pudsey r. Newson 493, 494 
 
 Pugh V. Leeds . 124 
 
 r. Springtield 442 
 
 PuUen V. Middleton 242 
 
 Pullin ?•. Pullin 165 
 
 Pun.sany & Leader's Case .... 579 
 
 Pybus V. Smith 302 
 
 Pye, Ex parte 350 
 
 V. Daubitz 495 
 
 Pyer v. Carter 189, 199, 200 
 
 Q 
 
 Qncade's Trusts. Re 529 
 
 (}ueen. The, fice Keg. 
 
 QuenncU v. Turner 165 
 
 R 
 
 Race r. Ward 613 
 
 Kalph ?•. Carrick 62, 320 
 
 Kamsden v. Hvlton 137 
 
 r. Smith . 126, 501, .">03. 504 
 
 Kandall v. Daniel 5 
 
 V. Lynch 412 
 
 V. Willis 530. 5;:m 
 
 Kanking. Rr 307 
 
 h'ashleigh r. S. E. L'v. Co. . 410. 114 
 
 K'ateliffr. 1^5 
 
 Kawley r. Holland 287,288 
 
 K'ay. kx ),(iiir 297 
 
 K'ead r. Erington 229 
 
 lieado ('. Kcado _ . 362 
 
 41
 
 xlii 
 
 TABLE OF CASES. 
 
 [The paging refer: 
 
 Reading r. Norris 270 
 
 iiedferu. Re 81 
 
 Heed V. Fairbanks 220 
 
 Kees d. Cliamberlain v. Lloyd . . 43 
 
 V. Overbaugh 32 
 
 Reeves v. Barlow 4(i9 
 
 V. Watts 127 
 
 Eeg. v. Archdall 09 
 
 V. Buccleugh 606 
 
 V. Canterbury (Archbishop 
 
 of) 68 
 
 V. Chamberlains of Alnwick 612 
 V. Dulwicli College .... 72 
 
 V. Isle of Ely 568 
 
 V. Nevill 177 
 
 V. Northumberland .... 99 
 
 V. Payne 177 
 
 V. Inhabitants of 8toke upon 
 
 Trent 61 
 
 V. Train 179 
 
 V. United K. Telegraph Co. 179 
 
 V. Watson 168 
 
 Reid V. Hoar 341 
 
 t'. Kenrick 504 
 
 Reilly v. Fitzgerald 375. 384, 386, 402 
 
 V. Jones 429 
 
 Reindell v. Schell 429 
 
 Remnant r. Hood . 344, 370, 372, 375, 
 - 377, 402, 405 
 
 Remon r. Hayward 56 
 
 Renwich v. Daly ,''213 
 
 Reniger v. Fogossia 581 
 
 Repington v. Roberts-Gawen . . 115 
 
 Reps V. Bonham 235 
 
 Rex V. Bellringer 73 
 
 1-. Boston (^Corporation of) . 623 
 
 V. Bridges 580 
 
 r. Briggs 580 
 
 V. Capper 100, 581 
 
 V. Chester (Bishop of) . . . 127 
 t'. Chester (Mayor of ) ... 73 
 
 V. Churchill \ 613 
 
 V. Crundeu 580 
 
 v. Davie 74 
 
 V. Gt. Wakeriug 436 
 
 V. Hewson 5S4, 592 
 
 V. Hortou ...... 584. 626 
 
 V. Honghton-le Spring ... 2 
 V. Inhabitants of Eatington . 605 
 r. Inhabitants of Rodley . . 617 
 
 V. Kingsmill 589 
 
 V. Level 588 
 
 V. Llangunnor 149 
 
 V. ^laideuhead .... 621, 62.'! 
 
 r. Maydeuhead 620 
 
 ^'. Norwich 5.5-< 
 
 r. Osbounie 73 
 
 V. Rochester (Bi.shop of) & 
 Sir F. Clerke 100 
 
 42 
 
 to the ['] pages. ] 
 
 Rex V. Scamouden 147 
 
 V. Scott 68 
 
 V. Showier 626 
 
 V. Sion, Abbess of 212 
 
 V. Staffertou 592, 595 
 
 V. Varlo 70, 73 
 
 V. Watson 565 
 
 V. Whixley 565 
 
 Reynold v. Kingman 215 
 
 Reynolds v. Bridge 429 
 
 Rice r. Wiseman 629 
 
 Rich V. Rich 478 
 
 V. Wilson 373 
 
 Richard v. Sely 44 
 
 Richards v. McBriffe 68 
 
 V. Rose 200 
 
 Richardson v. Goodman . . 392, 393 
 r. .lenkins . . . 422, 426 
 
 V. Wilson 50 
 
 Rickman v. Carstairs 37 
 
 Ridley, Re 149 
 
 Rigby V. Bennett 202 
 
 V. Gt. Western Rv. Co. . . 413 
 
 Rigden r. Vallier . . '. 41, 282, 284 
 
 Right d. Basset v. Thomas ... 44 
 
 d. Green v. Proctor ... 44 
 
 r. Bucknell 140, 142 
 
 r. Day 247 
 
 Rimm v. Insall 529 
 
 Ringer v. Cann 176, 178 
 
 Ritchie v. Atkinson 464 
 
 Rivers (Lord) v. Adams .... 613 
 V. Derby .... 370, 381, 382 
 
 Re . ." 353 
 
 Roberts v. Barker 12 
 
 V. Brett .... 447, 449, 456 
 
 Robert's Case 574 
 
 V. Dixwell 254, .536 
 
 V. Kingsly 538 
 
 Roberts v. Peake 383 
 
 Re 115 
 
 r. Spicer 299 
 
 r. Young 614 
 
 Robertson r. Clarke 61 
 
 V. French 18, 54 
 
 V. Jackson 60 
 
 Robinson v. Dickenson 332 
 
 r. Dnleep Singh 72, 579, 629 
 
 r. Evans 316 
 
 r. Mollett 16 
 
 r. Preston 281 
 
 V. Trevor 152 
 
 V. Walker 436 
 
 Roche r. Roche 551 
 
 Rochfort r. Fitzmaurice . . 241, 319, 
 5:'.4, 535, 5.37, 540 
 Roddy r. Fitzgerald . . . TitQ, 62, 98 
 Roe d. p]erkeley r. York, Arch- 
 bishop of 25
 
 TABLE OF CASES. 
 
 xliii 
 
 [The paging refers to the ['J pages. ] 
 
 Roe r. d. Conollyr. Vernon &V.vse 157, I Sanders r. Savilp 41 
 
 159, K;:? ; Sander.son v. Berwick (Mayor of) 4*^2 
 
 r. Lidwell 1(50 
 
 V. (^)uartley • . '285 
 
 d. Wilkinson c. Trauuier . . 41 
 
 Roffey V. Bent 490 
 
 Kogers c. Allen 579 
 
 Kolle V. Peterson 429,4:>:> 
 
 Rolls r. Yate 4U 
 
 Rooke I. Kensington 174 
 
 V. Rooke 'M% 405 
 
 Ivooper ('. Harrison .... 208, 559 
 
 Roots V. Snellini; Gl 
 
 Roper r. Bartholomew . . . 432, 433 
 
 Rorke v. Errinn;ton I(i5, 173 
 
 Rose r. Bartlett 178 
 
 Rosewell v. Pryor 191 
 
 Rosewell's Case 493 
 
 Rosher v. Roslier <)l> 
 
 Rossiter v. Ro.ssiter 54(5 
 
 lioss's Trust. J!e 301, 302 
 
 Rowden r. Maltster 242 
 
 Jvowntree r. Jacob 151 
 
 Ruberv v. Jervoise 42(5 
 
 liubv r. Foot 369, 370, 371 
 
 Rudd r. Morton 1(58 
 
 lvud<^ ('. Pinconibe 411 
 
 Ru.ssell V. Smvtliies 259 
 
 r. Watts . . . 199, 200, 202 
 
 Rnsscn r. C'ollcy 452 
 
 Russian Steam Nav. Co. r. Silva . 61 
 Rutland's Case (Countess of ) . . 2 
 
 S 
 
 Sackville West v. Holmesdale . 533, 
 535, 537, 539, 556 
 
 Sadlier v. Biggs 71, 74 
 
 St. Albans v. Ellis 412 
 
 ?'. Shore 4(51 
 
 St. Aubyn r. Humphreys .... 525 
 St. Cross (Master, Sec, ofi r. How- 
 ard do Walden (I^ord ) .... (55 
 
 St. .John r. Piott 5H,S 
 
 Sainter v. Ferguson . . 3(52, 103, 429, 
 433, 428 
 Salisbury (Manjuis of) r. Great 
 
 Northern Railway 1^1 
 
 Salisbury r. Lambe .... 362. 403 
 
 Saltash (Mayor of) r. (ioodman . 577, 
 
 5H-.2, (J 13, 61 4 
 
 Salter r. Kidley 140 
 
 Saltdtin r. lioiistoun . , 
 
 S,iml)ournc r. Harilo (iOH 
 
 Sammes' Ca.se 214, 215. 270, 279. 2^0 
 
 S:inii)ayo v. (iould 553, 551 
 
 S.impson V. Kasterby . . . 143, 417 
 Sandemau v. Mackenzie 3 19, 350, ,352 
 
 MacCullom 
 V. Symonds . . 22, 32, 34 
 
 Sandilands, Re 1 
 
 Sandimau v. Breacli 177 
 
 Sangster r. Cochrane 152 
 
 Sarel, Be 303 
 
 Sargent, Ex parte 28 
 
 Saunder's Case 604 
 
 Saunders v. .Johnson 440 
 
 r. Milsome . . . .419, 425 
 
 r. Re 334, 335 
 
 Saunderson r. Piper . . .'. . .112 
 
 Saundevs r. Oliff 203 
 
 Savage v. Carroll 342, .348 
 
 r. Whitel)read 4S1 
 
 Saward v. Austin 4so 
 
 Saxton V. Saxton 172 
 
 Say (Lord) and Seal's Case ... NO 
 Scarisbrick v. Skclmersdale . . . 341 
 
 Schenck r. Legh 395. 403 
 
 Scliolefield c. Alexander .... 86 
 r. Lockwood .... 141 
 
 Schollield v. Sp!)oner 508 
 
 Scott r. Avery 458 
 
 r. Soans 12.5 
 
 ;•. Steward 554 
 
 Scottish Widows r. Craig .... 380 
 
 Scovel V. Cabel ........ 211 
 
 Scovell and Cavel's Case ... 98, 211 
 
 Scullv V. Scully . 531 
 
 Seaboume /•. Powell . . 495, 496. 527 
 Seagood r. Hone . . 81, 92, 232, 249 
 
 Seal r. Claridge 1 
 
 Scale r. Scale 540 
 
 Scaiuan's Case 92, 96 
 
 Sear v. House Pro])erty and In- 
 vestment Society 421 
 
 Seaton v. Henson 31 
 
 Seddon r. Senate . . .413. 485, 486 
 
 Selby V. Chute 482 
 
 ?-. Robinson 613 
 
 Sellin V. Price 22 
 
 Selwyn v. Selwyn 7 
 
 Sen house v. Christian 1S4 
 
 Sepalino r. Twitty 120 
 
 Sergeant, Re .334 
 
 Servante r. .James 442 
 
 Severn r. Clerke's Ca.se . . . lOS, 417 
 
 Seymour r. Conrtenay .578 
 
 Scvmour's Trusts, Re 314 
 
 Shafto r. Buller 300 
 
 143. 417 Sharp r. Walcrhousc 415 
 
 SIiar|)ley r. .Mablctburix- (Over- 
 seers of) (W 
 
 Shav/ r. Hunt 12(5 
 
 V. .lon.s 140 
 
 r. M'Mahuu ... .... 3.56 
 
 43
 
 xliv 
 
 TABLE OF CASES. 
 
 [The paging refers to the [*] pages. D 
 
 Shaw r. Sten ton 491 
 
 Sheldon r. Dormer oSO 
 
 Slielley's Cajse 242, 245, 283. 287, 5:56 
 
 Shelley v. Earstield 250 
 
 Shelton v. Watson 541 
 
 Sheppard r. Gosnold G8 
 
 Sliiers r. Ash worth 35fi 
 
 Shirley's Trusts, Ee 227 
 
 Shore v. Wilson .... 48, 53, (J8, 7.3 
 
 Shove V. Pincke 42 
 
 Shrewsbury r. Gould . . .412,420 
 
 r. Scott 103 
 
 /■. Shrewsbury . . . 379 
 Shrewsbury's (Earl of) Case . . 7f) 
 Sibthorpe i\ Brunei ...... 452 
 
 Siekelmore r. Thistleton . . 426, 4G8 
 
 Sidney r. Shelley 47 
 
 Simmons i\ Rudall 18 
 
 Simons i\ John.son 138 
 
 Simpson r. Dendy 17!) 
 
 r. Frew 344, .354 
 
 V. Maigetson 9 
 
 Sin net v. WaLsh 365 
 
 Skipper r. King 405 
 
 Slade V. Dowland 571 
 
 Sladen v. Sladen 254 
 
 Sleigh r. Metham 41 
 
 Slingsby r. 329 
 
 r Grainger . - 159 
 
 Slingsbv's Case .... 284, 437, 439 
 
 Sloman' v. Walter 429, 432 
 
 Smiths. Baker 499 
 
 ('. Brownlow 584 
 
 V. Butcher 62 
 
 V. Cam el ford ...... 362 
 
 ti Chad wick 7 
 
 r. C'omptou 472, 479 
 
 r. Dickenson 429 
 
 V. Dudley 314 
 
 V. Farnaby 619 
 
 V. Gatewood 613 
 
 V. Harwich (Mayor of ) 411,414 
 
 V. Howden 183 
 
 V. Doc d. Jersey .... 3, 55 
 
 i\ Kemp 576, 578 
 
 V. Lu.'as . . . .37, 49, 503, 529 
 
 V. Martin 603 
 
 V. Oakes 79, 181, 283 
 
 V. Osborne 499, 528 
 
 r. I'ackhurst 37 
 
 v. Partridge . .■ 376 
 
 V. Pocklington . . . 423, 436 
 
 Be 302 
 
 V. Ridgway 1(14 
 
 V. Risley 150 
 
 V. She])herd 623 
 
 V. Smith 249, 303, 309, 370, 373 
 
 V. Wilson 50, 61, 455 
 
 Smy V. Chown 240 
 
 44 
 
 Smy ?), June 240 
 
 Smyth, E.v parte 346 
 
 Snajie r. Turtou 7, 46 
 
 Snell V. Silcock 251, 295 
 
 Snowe V. Cutler 243 
 
 Societe Gencralede Paris i'. Tram- 
 ways Co., Limited 28 
 
 Sol me V. Bullock 627 
 
 Solly r. Forbes 40, 76, 138 
 
 Somerset (Duke of) v. Fogwell . 578 
 
 Sorsbie r. Park A'.W 
 
 South V. Searle 322 
 
 Southcote V. Hoare 444 
 
 V. Stowell .... 239, 287 
 South Eastern Ky. Co. v. Wartpu 141 
 
 Southgaie v. Cliajilin 485 
 
 Spalding ?'. Spalding 81 
 
 Spanton v. Hinves 189 
 
 Spark V. Spark 312 
 
 Sparke's (Sir G.) Prescription . . 586 
 
 Sparrow v. Paris 429 
 
 Spartali r. Benecke 15 
 
 Spencer v. Boyes 499 
 
 V. Durant 439 
 
 V. Marriott 487 
 
 V. Spencer 346 
 
 Spencer's Case 422 
 
 Spicer v. Cooper 61 
 
 Spirett V. Willows 297, 298 
 
 Spoor V. Green 474, 481 
 
 Spring w. Pride 301,518 
 
 Spyve V. Topham 80,214 
 
 Stamford v. Hobart .... 534, 546 
 
 V. Pawlett 623 
 
 Stammers r. Dixon 71 
 
 Standen v. Christmas 425 
 
 Standard Bank of British South 
 America r. Stokes . . 184, 606, 607 
 
 Stanhope's Trusts, Be 356 
 
 Stanley v. Coulthurst 546 
 
 V. Haves 492 
 
 V. Jackman .... 548, 549 
 
 i\ Leigh 547 
 
 Stannard v. Forbes 424, 478 
 
 Stanton r. Hall 297 
 
 Staple (•. Hevdon 201 
 
 Staples V. Maurice 280, 282 
 
 Stapleton r. Shelburne 459 
 
 Stapleton's Case 46 
 
 Starkey r. Starkey 536 
 
 State Fire Insurance Co., Be . . 427 
 
 vStavers v. Curling 446, 4(!4 
 
 Stedman v. Smith 60(5 
 
 Steedman r. Poole 300, 302 
 
 Steele r. Mart . . . .119,123.125 
 
 v. INIitcheU 492 
 
 Stephen's Case 358 
 
 Stephens r. Frost 389, 394 
 
 Stevens v. Lawton 358
 
 TAllLl-: OF CASES. 
 
 xlv 
 
 [The paging refers 
 Stevens v. Van Voorst . 504. 505, 510 i 
 
 Stevenson v. Powell 488 
 
 Steviuson's Case 41G ! 
 
 Steward v. Popplcton . . . 510. 5-27 
 
 Stewart r. Aston 2ry 
 
 Stile V. Miles 570 
 
 Stile and Miller's Case 570 
 
 V. Tewkesburv (WJ) 
 
 Still V. Hoste . . " IKJ 
 
 Stirum r. Richards ::4 I, ;545 
 
 Stockdale v. Nicholson :>17 
 
 Stoke r. Pope IfW 
 
 Stokes V. Stokes 1:>H 
 
 Stol worthy r. Sancrol't 'MiA 
 
 Stone V. l>'ale 1'2:} 
 
 V. Van Hevthusen .... 419 
 Stonor's Trusts, 'j:e .... 2i)(i, 508 
 
 Storer v. Gordon 455. 464 
 
 Stork V. Fox 108 
 
 Storrv r. Walsh 144 
 
 Strand Music Hall Co.. Ilr. 7(], 81, i)l 
 
 Stratton v. Best 280 
 
 Streattield v. Streatfield .... 5L)o 
 
 Strickland v. Maxwell 81 
 
 Stringer, Re 140 
 
 Stronj;; r. Kean 41'.i 
 
 Stronge i: Hawkes 207 
 
 Stroud, Ee 95, 97 
 
 Strou<rhill V. Buck 141 
 
 Stukeley v. Butler . 88. 89, 109, 173, 
 216, 622 
 
 Sturgis V. Corp 300 
 
 Sty ant v. Staker 204 
 
 Style V. Abbott of Tewkesbury . 589 
 
 V. Hearing ". 422 
 
 Styles V. Att.-Gcn 147 
 
 V. Wardel 123 
 
 Suffell r. Bank of England 19, 23, 33 
 
 Suffield r. Brown 199 
 
 Sumner v. Powell 435 
 
 Siirtees r. Surtees 542 
 
 Sury i;. Brown 85 
 
 i\ Cole S'l 
 
 V. Pigot 191 
 
 Sury's Case 91 
 
 Su.sanni. lie 365 
 
 Sussex (Earl of) r. Temple 280, 282, 
 
 326, 359 
 
 Swallow /•. Binns 351,396,399.402, 404 
 
 Swan, Ex parte . 29 
 
 r. North Britisli Austral- 
 asian Co 29 
 
 I'. Searles 422 
 
 r. Stranshani 422 
 
 .Swann r. Fonnercau 93 
 
 Swansborougb r. Coventry . . . 202 
 Sweeta[ti»le v. llorlock . . . 512, 528 
 
 Swift t;. Swift 550 
 
 Swyftu. Eyres 167 
 
 to the [*J pages.] 
 
 Syjjrs c. .Jonas 14 
 
 Sykes' Trusts, He 303 
 
 Symers i\ Jobson 257 
 
 bymonds r. Green 595 
 
 r. Elovd 60 
 
 V. Wiikes 548 
 
 T 
 
 Taaffe r. Conniee 284 
 
 Taher, Re 30:: 
 
 Taduian i: D'Epineuil 40!i 
 
 Taggart r. Taggart 282, 545 
 
 Tahiti Cotton Co. (Re) 2h 
 
 Tait r. Lath bury 5.")5 
 
 Tainier r. Bvnc 118 
 
 Tapner d. IVckhani r. Merlott . 230 
 
 Targus v. Puget 81 
 
 Tarsey, In re 299 
 
 Tasker v. Small 555 
 
 Tathani r. Venion 277. 327 
 
 Tatton V. Moliiuux 260 
 
 Tawney r. Ward 507 
 
 Taunton r. Pejiler 1 
 
 Tavler r. Great Indian Peninsula. 
 
 ky. Co 29 
 
 Tayleur v. Dickenson . . . 528, 530 
 Taylor d. Atkyns r. Horde . . 7, 570, 
 V. Cor])oration of St. Hel- 
 ens 76, 94, 97 
 
 V. Dabar 527 
 
 V. Debar .... 495, 496, 527 
 V. Liverpool & Great West- 
 ern Steam Co 91 
 
 V. Parrv KJO 
 
 V. Vale' 43 
 
 Teasdale r. P>raithwaite .... 148 
 
 Tebbe r. Popplewell 41 
 
 Teebay v. Manchester, &c., ivy. 
 
 Co 4 
 
 Telegraph & Despatch Intelligence 
 
 Co. r. McLean 41.3, 415 
 
 TeiKiuts of Owning'sCase . . 573. 58(» 
 
 Teiinison ?•. Moore 341, :'.4() 
 
 Terry r. Dunlze 1.52 
 
 Tewkesbni-y v, Brickwell .... 73 
 
 Texeira 7'. Evans 29 
 
 Teynham v. Webb .339. 342, 351, 354, 
 362, 367, 375. 384, 102 
 
 Thackeray r. AVood 192 
 
 Thames Haven Dock Py. Co. r. 
 
 IJrymer 152 
 
 The Pri.sdii Commissioners r. 
 Clerk of (lie Peace for Middle- 
 sex 4 
 
 Theebridge r. Kilburne . . 260, 2(!l 
 
 Thecd, Re 3.52, 392 
 
 Thomas o. Cadwallader . . 421, 460 
 
 45
 
 xlvi 
 
 TABLE OF CASES. 
 
 [The paging refers 
 
 Thompson r. Attfeild 41 
 
 /■. Brown 455 
 
 r. Fisher 541 
 
 V. Hakewell 441 
 
 r. Simpson . . . 545, 551 
 V. Webster . . . . 6, 148 
 
 Thomson v. Entcher G 
 
 r. Waterlow . . ]9:j, 197 
 
 Thorne v. Thorne 41, 150 
 
 Thornton ?j. Bright 506 
 
 Thorp V. Owen 254 
 
 Thorpe v. Thorpe 138,254,450,455,459 
 
 r. Brunihtt 185 
 
 Throckmerton i: Tracy . 37. 77, 211, 
 213, 220 
 
 Tlinrman v. Cooper 7, 218 
 
 Tidmarsh v. Grover 23 
 
 Tippet V. Hawkev 441 
 
 Tippin V. Cosin ' . 238, 244, 268, 287 
 
 V. Piggot 230 
 
 Tipping' s Case 230, 289 
 
 Tippins V. Coates 436 
 
 Tisdale v. Essex 44, 485 
 
 Tomlinson v. Dighton 46 
 
 Topping V. Howard 317 
 
 Torres v. Franro 404 
 
 Tournav r. Tonrnay :'.71 
 
 Town end v. Tuker 146 
 
 Townley r. Gibson ....... 603 
 
 Townshend r. liarrowbyoOS, 504, 507, 
 510, 522, 525 
 
 Trafford v. Ashton 380 
 
 Travers v. Blundell 170 
 
 V. Travers 506 
 
 Tredwen v. H<ilnian 458 
 
 Treloar v. Bigge 421 
 
 Trenchard r. Hoskins . . . .76, 480 
 
 Treswallen r, Penhales 595 
 
 Tresham v. Lambe 596 
 
 Trethewy v. EUesdon 80 
 
 Trevor v. Trevor .... 536, 542, 543 
 
 Trowel r. Castle 17 
 
 Trneman v. Loder 15 
 
 Truman v. Walsham 623 
 
 Tucker r. Burrow 350 
 
 v. Harris 403, 405 
 
 V. Linger . . .' 47. 61, 76, 604 
 
 Tudor ('. Saniyue 300 
 
 Tuiter. Bermingham 126 
 
 Tuustall V. ]5rachen 378 
 
 V. Trappes .... 78, 294 
 
 Turner r. Goodwin 459 
 
 V. Sargent 553, 555 
 
 V. Turner 138 
 
 V. Wardle 418. 422 
 
 Turnman v. Cooper 218 
 
 Turpine v. Forreyner 178 
 
 Twaddle v. Murphv 217 
 
 Tyler v. Fisher 215, 350 
 
 46 
 
 to the [*] pages. ] 
 
 Tyler v. Lake 297. 298 
 
 Tyrrel's Case 267 
 
 Tyrrell v. Hope 6 
 
 Tyrringham's Case 188, 608, 609, 612, 
 
 627 
 Tyson v. Smith 621 
 
 U 
 
 Ughtred's Case 450 
 
 Underbill v. Harwood 2 
 
 United Land Co. r. Great Eastern 
 
 Ry. Co 198 
 
 Upton V. Brown .... 309, 310, 335 
 
 Urch V. Walker 46 
 
 Usher v. Ayleward 281 
 
 Uvedale v. Halfpenny 82 
 
 V 
 
 Valentine v. Penny 627 
 
 Van ti Clark 369 
 
 Vauderzee v. Aclom . . 360, 361. 384, 
 385, 392 
 
 Vane v. Barnard 481 
 
 Vardon's Trusts, Be 529 
 
 Venables v. Morris . . . 243. 244, 274 
 Veners v. Fesch (Abbot of) . . . 215 
 
 Verney r. Verney 374, 377 
 
 Vernon v. Alsop 83 
 
 V. Vawdrv 421 
 
 V. Wright 238 
 
 Vernon's Case 147 
 
 Vianl's Trusts, Be ..... 517, 520 
 Vicars Choral De Litchfield r. 
 
 Ayres 167 
 
 Villars v. Beaumont 147 
 
 Vincent v. Spicer 97 
 
 Vinkeston ?;. Ebden 168 
 
 Voisey, Ex parte 618 
 
 Vowles V. Miller 584, 585 
 
 Vyvyan v. Arthur 419, 420 
 
 W 
 
 Waddy v. Newton 558 
 
 Wadlev v. Bavliss 67, 74 
 
 Wakefield r. Brown 443 
 
 )'. Pichard.son 346, 373, 
 398, 399, 401 
 
 r. Matfett 401 
 
 Waker v. Snowe 225, 253 
 
 Walcott r. Bloomfield 354 
 
 Waldron r. Kuscarit 168 
 
 Walev, Be 176 
 
 Walker v. Bradford Old Bank . . 409
 
 TABLE OF CASES. 
 
 xlvii 
 
 [The paging- refers to the [•] pages. ] 
 Walker r. Giles [Kl Welbv c. Welhv 172 
 
 v. Hall 41 
 
 r. Harris 4'f2 
 
 r. Main o9."> 
 
 r. Walker 411 
 
 r. Ware, c^c. Kv. Co. . . 122 
 
 Wall r. Ilright 79 
 
 r. Wrijiht 2;15 
 
 Wallis i: Smith .... 47, 428, 429 
 
 Walpoler. Conway 3(il 
 
 Walsli r. Lonsdale 4rt 
 
 r. Tre\ anion . . KU), 1:54, l:}.") 
 r. WalMnger oGa 
 
 Waller r. Pigot 83 
 
 Walton, Ex parte 56 
 
 Wandesford c. Carriek 347 
 
 Warburton r. Warhnrton .... 380 
 
 Ward r. Bradley 202, 263 
 
 V. Dya.s 294 
 
 V. Everard 284 
 
 V. Everet 284 
 
 r. Kidswin 168 
 
 ( Lord I V. Lnniley .... 25 
 
 Ward V. Tnddington 149 
 
 r. Ward 280, 281 
 
 Ward's Case 108 
 
 Warde r. Warde 420 
 
 Warn r. Bickford 493 
 
 Warren v. Arthur 465 
 
 c. Johnson 358 
 
 Warren's Trusts, Re ... . 323, 327 
 
 Warrick v. Gerrard 150 
 
 r. Queen's College 609, 613, 
 614,015 
 
 Warrington r. Mosely 
 
 Warwick v. Warwick 
 
 Warr c. Warr 
 
 Waterpark v. FeniuU 
 
 Watkeys r. Delancey . . 
 
 Watkins v. Nash . . . 
 
 Watson V. Gray ... 
 
 Watts I'. Kels n . . 190, 
 
 Wats ?». Dix 
 
 V. Ognell .... 
 
 Watson V. Troughton 
 
 Watt r. Watt 
 
 Waugh r. Bussel . . . 
 
 Way's Trusts, Re . . . 
 
 Webb V. Pluninier . \'.. 
 V. Kus.sell .... 
 V. Spicer .... 
 r. Webb .... 
 
 Webb's Case 
 
 Webt)'s Trusts. He . . . 
 
 Webber's .Settlement, R< 
 
 WeV)ber v. Stanley . . . 
 
 Weekes c. reacli . . . 
 
 Weekly v. Wild mm . . 
 
 Weeks' r. Maillardet . . . 22, 25, 
 
 184 
 
 197 
 
 023 
 223 
 371 
 626 
 4«5 
 121 
 607 
 19!) 
 41 
 270 
 189 
 308 
 33 
 121, 500 
 412, 420 
 419 
 
 26(t 
 (iOO 
 5()(i 
 3,11 
 101 
 619 
 613 
 JO 
 
 300 
 
 Weld r. Hornby 70 
 
 Wellman v. Bowring 314 
 
 Welstead, Re. Welstead c. Wel- 
 
 stead 527 
 
 West v. Erris.sey . . 294, 536, 538. 542 
 V. Holnusdale .... 540, 547 
 
 r. I^awday 159 
 
 r. Steward 25 
 
 Weston V. Arnold 007 
 
 V. Managers of Metropoli- 
 tan District Asvluin . 432 
 Whaley r. Tankard . . .\ . . 150 
 
 Whatelv v. Kemp 537 
 
 Wliatford v. Moore . . 399, 400. 405 
 
 Wheate i: Hall 553, 554 
 
 Wheatley v. Westminster Brymbo 
 
 Coal Co 415 
 
 Re 529 
 
 Wheeldon r. Burrows 189. 199, 200, 
 201, 202, 203 
 
 Wheeler r. Addams 310 
 
 r. Duke 232, 320 
 
 Whetstone v. Saintsbury .... 207 
 
 Whistler v. Pastou 631 
 
 Whistler's Case . . . .186,559,581 
 
 White V. Bass 199 
 
 %'. Beelon 401 
 
 r. Briggs 525, 546 
 
 r. Carter 533, 541 
 
 r. Collins 232 
 
 V. Ewer 484 
 
 and Hindle's Contract, i?e 245 
 
 c. Hunt 178 
 
 V. James 380 
 
 White's Trust.s, Re .... 364, 306 
 Whitfield r. Langdale . . .104,171 
 Wliitgreave v. Wliitgreave . . . 508 
 
 Whitluck V. Horton 44 
 
 Whitstable (Free Fi.shers oft) r. 
 
 (iann 577 
 
 Whitfaker, In re 298 
 
 Whittier v. Stockman . 593, 013, 020 
 
 Whitty, Re 200 
 
 Wigglesworth v. Dalli.son . . 12, 10 
 
 Wight r. Dickson 79 
 
 Wiirson r. Garret 7 
 
 Wilder v. Pigott r,29 
 
 Wilkes V. Eeuson 2(p'9 
 
 Wilkins r. Wood 12 
 
 Wilkinson v. .\dam 331 
 
 V. (Jaston 121 
 
 v. Malin 107 
 
 Williams r. Ashton 18 
 
 V. Bryant 120 
 
 c. BuVrell 122 
 
 I'. Carter 55 '> 
 
 r. Hathaway 427 
 
 j;. Jekyl 319,320 
 
 47
 
 xlviii 
 
 TABLE OF CASES. 
 
 [The paging refers 
 
 Williams r. Mercier Jl>J 
 
 V. Morgan 4 1 
 
 V. Phillips 204 
 
 Re :}9"), 403 
 
 r. Waters 273' 
 
 V. Wilcox 1H2 
 
 r. Williams 236 
 
 Williamsou v. Adams 32.) 
 
 V. Buttertield .... 'vi? 
 V. Codrington . . .411 
 
 Willingale V. Mnitlaud Oi:'> 
 
 Willion V. Berkeley 220 
 
 Willis V. Black ^'-^^ 
 
 V. Martin 240 
 
 V. Watney lf>9 
 
 V. Willis 396, 403 
 
 Willoughby v. Foster 1 06 
 
 V. Middletun . 132, 426, 
 504, 505, 529, 530 
 
 Wills, Ex parte 494 | 
 
 V. Palmer 115,239,243,255,287 
 
 Wilmer r. Currey 435 
 
 Wilmot, Ee . . . 399, 401. 405, 406 
 
 Wilson V. Atkinson '■i'-^-'^ 
 
 V. Atter 356 
 
 V. Braddyll 46 
 
 V. Brocklev 127 
 
 V. Duguid' 364, 366 
 
 V. Halliley . .- 3^0 
 
 V. Keating 1;>1 
 
 17. Mount . . . .165, 405 
 
 V. Paul 294 
 
 V. Piggott 46, 144 
 
 V. Pilkington 317 
 
 V. Willes 627 
 
 V. Wilson H2 
 
 Wiltes Peeiage 231 
 
 Wilton V. Colville 515 
 
 V. Colvin 516 
 
 Wiltshire v. Sidford . . 184, 606, 607 
 Wimbledon, &c., v. Dixon . . . 630 
 
 Windham's Case 96, 279 
 
 Windham v. Graham 349 
 
 V. Windham . . . 167, 173 
 
 AVinderaore v. Hobart 215 
 
 Windsor r. Canterbury. 559 
 
 Windsor's Case 559 
 
 Wingfield i'. Wingfield 260 
 
 Wingrave v. Pal grave ... . . 405 
 
 Winn V. Fen wick 364 
 
 Winston t\ Linn 462 
 
 Winter r. Anson (Lord) . . . .151 
 
 Wise r. Piper 555 
 
 Wiseman's Case . 150 
 
 Wishart r. Wyllie 183 
 
 Withan^ V. Vane 2,8 
 
 Withers v. Algnod 257, 261 
 
 V. Bircham 442 
 
 Withes V. Casson 139 
 
 . 48 
 
 to the [ J pages.] 
 
 Withnell v. Gartham . . 72, 74 
 
 Withy V. Mangles 305, 306, 307, 309 
 
 Witts r. Boddington 364 
 
 Wollaston r. Berkeley 294 
 
 Wollaston, He 361, 405 
 
 Wolveridge v. Steward . . . 410, 420 
 Wood V. Copper Miners . . 412, 426 
 
 V. Hardisty. 421 
 
 i\ Rowel i tie 162 
 
 r. Slack 33 
 
 r. Wood 348, 552 
 
 Woodcock V. Dorset 403 
 
 Woodhouse v. Jenkins . . . 488, 489 
 
 Woodliffe V. Drury 287 
 
 Woodrulf r. Greenwood 427 
 
 W^oodward v. Aston 23 
 
 V. Gyles 433 
 
 Woodyard r. Dannock 478 
 
 Wool more v. Burrows 546 
 
 Wootton r. Heal 485 
 
 Worledge r. Kingswel 20:! 
 
 Worsley v. Granville 379 
 
 Worthington v. Gimson 188, 193, 195 
 Wottf)!! and Edwin's Case . . . 85 
 
 Wotton V. Hele 485 
 
 Wright d. Allingham r. Dowey . 296 
 
 Wright r. Gerrard 561 
 
 r. Kemp 248 
 
 V. Wright, He 176 
 
 r. Wright 300 
 
 Wrightson v. Macaulay 254 
 
 Wrotcslev i\ Adans . 1.52, 159, 167, 
 571, 575 
 
 W^roughton v. Turtle 87 
 
 Wvkliam r. Wykham . . . 274, 275 
 
 Wvnch V. Grant 421 
 
 W'vndham's Trust, Ee . . . 316, 520 
 
 Wynne r. Brady 404, 405 
 
 Wyse f. Leahey 4, 162 
 
 Wyth r. Blackman 321, .327 
 
 Wythe f. Thurlston . . .321,327 
 
 X 
 
 Xenos V. Wickham 120 
 
 y 
 
 Yarmouth (INIayor) r. Groom . . 620 
 
 Yate V. Fettiplace 373 
 
 V. Ivoules 443 
 
 Yates V. Pym 11, 15 
 
 Be 395 
 
 Year Books, reference to: 
 
 20 Ed. 1, 24 (Bee. Pub.) . . 611 u. 
 
 21 Ed. 1. 67, 81, 461 {Eec. 
 Pirn.) 611 n. 
 
 22 Ed. 1, 364 {Eec. Pub.) . . . 569 
 22 Ed. 1, 374 (Eec. Pub.) . . .568
 
 TABLE OF CASES. 
 
 xlix 
 
 [The paging refer: 
 Year Books, reference to: I 
 
 •22 Ed. 1, 4iy, 4-27, 453, 623, 
 
 [Bee. Pub.) 611 
 
 22 Ed. 1, 52S [Bee. Pub.) . . . 566 
 22 Ed. 1, 589(7?^. Pub.) . . . 625 
 30 Ed. 1, 17 {Bee. Pub.) .... 625 
 30 Ed. 1, 17, 37, 279, 327, 343. 
 {Bee. Pub.) 611 
 
 30 & 31 Ed. 1 {Bee. Pub., 
 App. II., 528, 529) 573 
 
 31 Ed. 1, 413 {Bee. Pub.) . . .611 
 
 32 Ed. 1, 23 {Bee. Pub.) . . . 625 
 32 Ed. 1, 2.3, 39, 43, 117, 133, 
 
 191, 227. 241, 321 {Bee. Pub.) 611 
 32 Ed. 1, 40 {Bee. Pub.) . . . 625 
 
 32 Ed. 1, 89 559 
 
 32 Ed. 1, 227 {Bee Pub.) 612, 625 
 32 Ed. 1, 271 {Bee. Pub.) . . . 625 
 
 32 Ed. 1, 505 [Bee. Pub.) . . . 625 
 
 33 Ed. 1 (.Mich.), 7, 93, 231, 
 note 611 
 
 33 Ed. 1, 220 {Bee. Pub.) . . . 625 
 33 Ed. 1 (Hill. &Pasch.), 371 
 417, 465. 475, 485, (App.) 
 
 505 {Bee. Pub.) 611 
 
 35 Ed. 1, 449 {Bee. Pub.) . . .614 
 
 35 Ed. 1, 449, 495,507 {Bee. Pub. )611 
 
 33 Ed. 1, 495 {Bee. Pub.) . . . 625 
 
 1 Ed. 2, 7, 9, 12, 17, 23 . . . 611 
 
 3 Ed. 2. 68 611 
 
 4 Ed. 2, 111, 145 611 
 
 5 Ed. 2, 160, 170 611 
 
 6 Ed. 2, p. 183 611,612 
 
 7 Ed. 2, 225, 228, 229 ... . 611 
 
 8 Ed. 2 (Mich.), 250 .... 593 
 
 8 Ed. 2, 261 611 
 
 8 Ed. 2. 265 560 
 
 8 Ed. 2, 267 215 
 
 10 Ed. 2, 314, .327 611 
 
 12 Ed. 2, 358 590, 591 
 
 3 Ed. 3, 3, pi. 7 582 
 
 7 Ed. 3, 10 a 1.57 
 
 8 Ed. 3, 37, pi. 48 .582 
 
 9 Ed. 3, 18, pi. 2 560 
 
 10 i:d. 3, 43 79 
 
 17 Ed. 3, 29, pi. 30 358 
 
 IH Ed. 3,-52 .559 
 
 18 Ed. 3, 59, pi. 91 358 
 
 24 Ed. 3, 29 a 279 
 
 39 Ed. 3, 36 h 559 
 
 40 Ed. 3, p].. 191, 193 {Bee. 
 Pub.) 591 
 
 43 Ed. 3, 27 616 
 
 47 Ed. 3, 18. pi. 35 r,r)H 
 
 48 Ed. 3, 2, 3 4.50 
 
 5 Ass. 8, pi. 2 610 
 
 5 A.S.S. 9 ()27 
 
 13 Ass. pi. 2 (J(»3 
 
 14 AS.S. pi. 8 .5H1 
 
 4 IVTICKIMIKTATIO.N OI' I)I:K|)S 
 
 to the [•] pages.] 
 
 Year Books, reference to: 
 
 22 A-ss. pi. 53 .594 
 
 26 A.SS. pi. 54 564, 595 
 
 26 Ass. 131, pi. 60 580 
 
 31 Ass. pi. 23 594 
 
 39 Ass. pi. 20 232 
 
 2 Ed. 4, 2 a 112 
 
 15 Ed. 4, 29, pi. 7 ... . 612, 613 
 
 21 Ed. 4, 52, pi. 15 569, 588. 622 
 
 22 Ed. 4, 22 '. 592 
 
 11 Hen. 4, 74 228 
 
 11 Hen. 4, 84 226 
 
 11 Hen. 4, 89, pi. 44 .589 
 
 4 Hen. 6, 22 91 
 
 8 Hen. 6, 22 622 
 
 22 Hen. 6, 36 484 
 
 22 Hen. 6, 51 614 
 
 22 Hen. 6, 53, pi. 26 484 
 
 27 Hen. 6. 2, pi. 14 594 
 
 34 Hen. 6, 49 592 
 
 38 Hen. 6, 33 b 213 
 
 5 Hen. 7, 1 44 
 
 5 Hen. 7, 9, p. 20 565 
 
 7 Hen. 7, fol. 13 576 
 
 8 Hen. 7, 1 589 
 
 1] Hen. 7. 12 226 
 
 11 Hen. 7, 14 a -. . 610 
 
 11 Hen. 7, 20 262 
 
 12 Hen. 7, 7 Ill 
 
 12 Hen. 7, 15 .589 
 
 12 Hen. 7, 17 5>s9 
 
 13 Hen. 7. 13, pi. 3 614 
 
 21 Hen. 7, 19 150 
 
 21 Hen. 7. 40 b 610 
 
 21 Hen. 7, 236 43 
 
 12 Hen. 8, 2 608 
 
 13 Hen. 8, 15 608 
 
 14 Hen. 8, 1 591 
 
 14 Hen. 8, 1. pi. 1 (J31 
 
 14 Hen. 8, 6 b 585, 619 
 
 M Hen. s. 25 b <j()3 
 
 18 Hen. 8 231 
 
 26 Hen. 8. 3 b 484 
 
 26 Hen. 8, T. T. 4, pi. 15 . . . 609 
 
 27 Hen. 8, 15 22() 
 
 32 Hen. 8 ;)3 
 
 36 Hen. 8. 340, )il. .52 .... 272 
 
 Yorkshire Insnranee Co. v. Clay- 
 ton 602, 622 
 
 Youtle r. .Tones 171 
 
 Young ('. Dyiuiick 2(»s 
 
 E.i-pitilr 1.31 
 
 r. U'aincock . . . .141, 479 
 
 V. Sniitli l;;o. 131, 14.3, 4 Is. 
 
 5(1.5, .5()(i 
 
 Z 
 
 Zoiitb r. Clay 
 
 28 
 
 49
 
 (50)
 
 ON THE 
 
 INTERPRETATION OF DEEDSc). 
 
 CHAPTER I. 
 
 EXTRINSIC EVIDENCE TO VARY DEED. 
 
 Extrinsic evidence inadmissible to vary terms of deed: Simul- 
 taneous deeds : Counterparts: Subsequent conduct: Custom. 
 
 Rule 1. — Deed cannot be varied bij u-liat happens before or at 
 time of execution. — No evidence of extrinsic circumstances is ad- 
 missible to contradict, vary, or add to, the terms of a deed. 
 
 (a) As to what constitutes a Deed, and as to matters connected with the 
 execution of Deeds, see Elphinstone, Introd. Conv., .3rd ed., ch. v. p. 5r>, and 
 the authorities tliere cited; Cruise, Dit;. vol. 4, ch. 1, '2: Pollock on C.mtr., 
 3rd ed., p. 15G : Com. Dig. Title Faii; Perkins, Prof. Bk., c. 2, fol. 25a, 27d; 
 Di.xon on Title Deeds, p. 468. As to execution, see Wms. R. P. p. 15!) (14th 
 ed.). citing Cherry v. ffeiniiif/, 4 Ex. 0:51. 6;!fi; a.s to tlie execution of an in- 
 strument exercising a general power of aiipointinent, see Frcmc v. Citntdif, 
 18 Ch. D. 409: as to attestatitm, Elphinstone, Introd. Conv. p. 57. Dixon 
 on Title Deeds, 570; and for a list of the instruments in whicli attestation 
 is necessary, .see Taylor. Ev. s. 1840 f7tli ed.); as to omis.sion of the word 
 "signed'' in the attestation clause, see Tinmton v. Pcpirr, G Madd. Itifi; as to 
 presumption of .sealing and delivery, Stc))hen. Dig. Ev. .\rt. 87; see Fvaiisw 
 Ore//, 9 L. R. (Ir.) 5:50, that an attestation clause "signed, scaled, and de- 
 livered." &c., AH primd/ttcic evidence of delivery, and that leaving the deed 
 on a table "for a few seconds " is a suflicicnt delivery; (pi-r Sullivan. M. 
 R.) a.s Uy qualifying execution by adding words, .see ICnti/ini/t lUtiik of 
 Yarmouth v. liltihrn, 10 .\pp. Cas. 29:!, that a party to a deed cannot 
 attest it, Frrnhfiphl v. Krcd, 9 M. it W. 401: Stol v. Claritlt/r. 7 (,>. M. 
 D. 51(1; its to what amounts to sealing, /v S^mi'liffUKh. I.. K'. (i. C. !'. 
 411; as to the eflect of the attestation clau.se, Cain II v. I'liut/luui. 1 Wms. 
 Saund. 291: Ponlnyr v. Cole, ibid, :{20; of execution by A. on the faith that 
 P.. will execute, Evanx v. Brnnhridt/p, H De (1. M. Sc (J. KtO; jx-r Jessel, M. 
 R., lAikcy. S. h'rninnf/lon Hold Co.. 11 Ch. D. 125: McLmn v. Ktnnnrd. L. IC. 
 9 Ch. ?iMi\ Griffin v. Clowrx. 20 Heav. (Jl ; of execution on behalf of a lunatic, 
 Lawric v. Lees, 14 Ch. D. 249; 7 App. Ca. 19; deed executed by .\. person- 
 
 51
 
 * 3 EXTEINSIC EVIDENCE TO VARY DEED. 
 
 It must be remembered that this rule is not, properly 
 [ * 2 ] speaking, a rule of interpretation ; it is a rule * of law 
 limiting the subject-matter to be interpreted to that con- 
 tained in the deed itself. 
 
 "It would be inconvenient, that matters in writing made by- 
 advice and on consideration, and which iinally import the certain 
 truth of the agreement of the parties, should be controlled by the 
 averment of the parties to be proved by the uncertain testimony 
 of slippery memory. And it would be dangerous to purchasers 
 and farmers, and all others in such cases, if such nude averments 
 against matter in writing should be admitted ; " The Countess of 
 Rutland's Case, 5 Eep. 26a. 
 
 " To add anything to an agreement in writing by admitting 
 parol evidence, which would affect land, is not only contrary to 
 the Statute of Frauds and Perjuries, but to the rule of Common 
 Law, before the statute was in being ; " per Lord Hardwicke, C, 
 Pavteriche v. Pon-let, 2 Atk. 384. 
 
 " It is not necessary to cite any case to prove the proposition 
 that parol evidence of a parol communication between the parties 
 ought not to be received to add a term not inserted in the specific 
 agreement which they have executed; and for this reason, that 
 what passed between them in that communication may have been 
 altered and shifted in a variety of ways, but what they have signed 
 and sealed was finally settled. It would destroy all trust, it would 
 destroy all security and lay it open, unless the parties are com- 
 pletely bound by what they have signed and sealed: " per Lord 
 Loughborough, C. J., Haynes v. Hare, 1 H. Bl. 664. 
 
 " The rule is perfectly clear, that where a deed is in 
 
 [ * 3 ] * writing, it Avill admit of no contract that is not part of the 
 
 deed. Whether it adds to, or deducts from, the contract, 
 
 it is impossible to introduce it on parol evidence;" per Lord 
 
 Thurlow, C, Lord Irnham v. Child, 1 Br. C. C. 93. 
 
 " I have never heard the general rule contradicted, that parol 
 or extrinsic evidence cannot be admitted to contradict, vary, or 
 add to the terms of a deed; " per Park, J., Smith v. Doe d. Jersey, 
 2 Brod. & Bing. 541. 
 
 " By the general rules of the Common Law, if there be a con- 
 
 ati;ig B. is forgery, and passes nothinp;. He Cooper. 20 Ch. D. 610; that a 
 party who takes the benefit of a deed is bound by it. though he does not exe- 
 cute' it. Co. Lit. ■2;;0b; Ilex x. Hoiif/hfon-le-Spring, 2 B. & Al. 375: Burneit v. 
 Lynch, Tj Barn. & Cres. 589; Wehb v. Spicer, 13 Q. B. 886: consider ]VHham 
 V.' Vane, U L. T. Rep. N. S. 718. S. C, 28 W. E. 276: rev. in H. L. 32 W. 
 R. 617: (very shortly reported: see for a full report Challis on Real Property, 
 appendix, p. 341.) As to a bond in form joint but executed by one obligor 
 only, see UnderhiU v. Hancood. 10 A^es. at p. :225. and as to a bond executed 
 by A. " for self and B.,"' without authority, see FJliott v. Dnvis,/2 Bos. & P. 
 3.38. 
 
 52
 
 EXAMPLES. ^ i 
 
 tract which has been reduced into writing, verbal evidence is not 
 allowed to be given of what passed between the parties either . 
 before the written instrument was made, or during the time that 
 it was in a state of preparation, so as to add to or subtract from, 
 or in any manner to vary or qualify the written contract: but 
 after the agreement has been reduced into writing, it is competent 
 to the parties, at any time before breach of it, by a new contract 
 not in writing, either altogether to waive, dissolve, or annul the 
 former agreements, or in any manner to add to, or subtract from, 
 or vary or qualify the terms of it, and thus to make a new con- 
 tract ; which is to be proved, partly by the written agreement, 
 and partly by the subsequent verbal terms engrafted on what will 
 be thus left of the written agreement;" per Lord Denman, C. 
 .J., Goss V. Lord Nugent, 5 B. & Ad. 65; and Stephen, Dig. Ev. 
 Art. 90. See, as to prior correspondence Lee v. Alexander, 8 App. 
 Cas. 853. Observe that this paragraph applies only to contracts 
 not under seal. 
 
 " If parties have made an executory contract which is to be 
 carried out by a deed afterwards executed, the real completed 
 contract between the parties is to be found in the deed, and you 
 have no right whatever to lock at the contract, although it is re- 
 cited in the deed, except for the purpose of construing the deed 
 itself. You have no right to look at the contract either for the 
 purpose of enlarging or diminishing, or modifying the contract 
 which is to be found in the deed itself; " per James, L.J., Leggott 
 v. Barrett, 15 Ch. D. 309; and per Brett, L.J., p. 311. Approved 
 in Palmer Y. Johnson, 13 Q. B. D. 351, at 356, 359. 
 
 Examples. — Bond. — Evidence not admitted to show that the 
 condition of a bond did not express the agreement between 
 the parties: Buckler v. M ill erd, 2 Yent 107; Mease \.* Mease, [*-4] 
 ICowp. 47: Lainsonv. Tremere, 1 Ad. & El. 792; S. C. 3 
 N. & M. 603. 
 
 Settlement. ^-Vt'heTe marriage articles provided that within six 
 months after the marriage the husband should cause certain lands 
 to be conveyed to him in fee so that the wife should become en- 
 titled to dower, and by the settlement executed pursuant to the 
 articles, a jointure was given to the wife in lieu of dower, evi- 
 dence was not admitted to show the reason of the change; 
 Brydges v. Duchess of Chandos, 2 Ves. J. 417, 422. 
 
 Conveyance. — Where land in lease was conveyed by deed, evi- 
 dence of a contemporaneous parol agreement between the parties 
 to apportion the rents up to the time of purchase was not ad- 
 mitted; Flinn v. Calow, 1 Man. & Gr. 589. 
 
 Conditions of sale not admitted to restrict the parcels in the 
 purchase deed; Doe d. Norton v. Web.ster, 12 Ad. ct El. 442; 4 P. 
 & D. 270. A map attached to, but not refened to in, a convey- 
 ance, not admitted to explain it; Wyse v. Jj:aliey, Irish U. 9 C. L. 
 384. Contract for sale n(jt a<lmitted to import reservation into 
 
 53
 
 * 5 EXTRINSIC EVIDENCE TO VARY DEED. 
 
 conveyance ; Teebay v. Manchester, &c., Railway Co., 24 Ch. D. 
 572. Contract not admitted to vary parcels : Williams v. Mor- 
 gan, 15 Q. B. 782; and letters prior to an agreement, not ad- 
 mitted to control it : Hughes v. Statham, 4 B. & C. 187. 
 
 Conveyance of " all that messuage, &c., called G. Farm, in the 
 occupation of, &c., and containing, &c., and consisting of the 
 several particulars specified in the schedule, and delineated on 
 the map in the margin."' Evidence not admitted to show that a 
 slip of land not mentioned in the schedule or delineated in the 
 plan had always been occupied as part of the farm; Barton v. 
 Dawes, 10 C. B. 201. 
 
 Where land was purchased by justices, and the conveyance 
 was made to the Clerk of the Peace in " trust for the Justices of 
 the county of M., for the purposes of the Prison Act, 1865," evi- 
 dence as to what resolutions were passed by the Justices prior to 
 the purchase was held inadmissible to prove that the land was 
 not purchased for the purposes of the Prison Act: The Prison 
 Commissioners v. The Clerk of the Peace for Middlesex, 9 Q. B. 
 
 D. 506. 
 
 Annuity deed. — Evidence of omission of a proviso for redemp- 
 tion of an annuity was refused, no fraud being alleged ; 
 r *5 ] Portmore*Y. Morris, 2 Br. C. C. 219; Hare v. Shearicood, 
 1 Ves. J. 241; S. C. 3 Br. C. C. 168; Haynes v. Hare, 1 H. 
 Bl. 659; Lordlrnhctm v. Child, 1 Br. C. C. 92. Deed not looked 
 at to construe will : Randall \. Daniel, 24 Beav. 193; draft lease 
 not looked at to construe contract: Hay ward v. Cope, 25 Beav. 140. 
 
 Explanation. — Evidence admissible to show that deed is not 
 binding. — Extrinsic evidence is admissible for the purpose of 
 showing that the deed is not binding on the parties either on the 
 ground of infancy, coverture, lunacy, fraud, mistake, accident, or 
 duress, or on the ground of its having been made for some un- 
 lawful consideration, such as to compound a felony, or as premium 
 pudicitia?, or of its having been delivered as an escrow, subject to 
 the performance of a condition which has not been fulfilled. 
 
 In such cases the admission of extrinsic evidence does not 
 violate the above rule, inasmuch as it is adduced, not for the pur- 
 pose of contradicting or varying the deed, but of proving that 
 the deed ought not to be interpreted at all. See this explained 
 by James, L. J., Exp. Morgan, 2 Ch. D. 84; Collins v. Blantern, 
 2 Wils. 341, 1 Sm. L. C. 387. 
 
 The cases in which, as in Lincoln v. Wright, 4 De G. & J. 16, 
 parol evidence has been admitted for the purpose of setting up 
 part of the contract not expressed in the deed, may be explained 
 by the Court having considered that the omission amounted to a 
 fraud. 
 
 .54
 
 EXCEPTIONS. * 6 
 
 First Exception.— Z>a/e. — Where a deed bears no date, or an 
 impossible or iucorrect date, evidence is admissible to prove the 
 date of the delivery, see ^J06', chap. IX., "Date." 
 
 Second Exception. — Consideration. — If the consideration be 
 stated incorrectly or not at all, or if only part of the consideration 
 be stated, evidence is admissil)le to prove the true consideration; 
 see post, chap. XI., " Consideration." 
 
 * Third Exception. — Indorsement. — Evidence is admis- [*G] 
 sible whether an indorsement on a deed, purporting to vary 
 the terms of the deed, was made before the execution of the deed: 
 Bales V. Conn, 4 Sim. G5; Lybiirn v. Warrington, 1 Stark. 102; 
 Thomson v. Butcher, 3 Buls. 300, where a clause added after the 
 testimonium before delivery was held to be part of the deed. 
 
 Apparent Exception. — Contract contained in. several deeds. — 
 There is also an apparent exception, where part only of the con- 
 tract between the parties is expressed in the deed, and .the re- 
 maining part of the contract appears by a separate instrument, 
 or by a collateral parol agreement {Erskine v. Adeane, L. R. 8 
 Ch. 75G), which is not inconsistent with the terms of the deed. 
 Carter v. Salmon, 43 L. T. 190 (approving Angell v. Duke, L. R. 
 10 Q. B. 174), parol collateral contract that no rent should be paid 
 till a certain act should be done. 
 
 Where an intended wife refused to execute her marriage set- 
 tlement till a note in writing varying the terms of the settlement 
 was executed : held, that the note must be construed as part of 
 the settlement ; Turrell v. Hope, 2 Atk. 557. 
 
 Defeasance. — A common example of this is the case of a con- 
 veyance absolute in form, which appears by a separate defeas- 
 ance, to be made only for the purpose of securing money; 
 Francklyn and Fern, Barnard Ch. Rep. 30; Manlove v. Bale' 'I 
 Vern. 84. 
 
 Evidence admissible whether deeds refer to same transaction. — 
 Evidence of the surrounding circumstances is admissible to show 
 whether deeds, not referring to each other, are parts of the same 
 transaction, or are separate transactions; Lord CromiveVs Case, 2 
 Rep. 091); Harman v. Richards, 10 Hare, 81 ; Thom)).<ion v. Webster, 
 4 De G. & J. 601 ; Ford v. Stuart, 15 Beav. 493; Fowler v. Hunter, 
 3 Y. & J. 500. 
 
 "When documents are actually contemporaneous, that is, two 
 deeds executed at th(* same moment, a very cunjmon case, or 
 within so short an interval that having regard to the nature of 
 the transaction the court comes to the conclusion that the seriee 
 
 55 •
 
 * 8 • DEEDS RELATING TO SAME TRANSACTION. 
 
 of deeds represents a single transaction between the same parties, 
 it is then that they are treated as one deed : and of course one 
 deed between the sarue parties may be read to show the meaning 
 of a sentence, and be equally read, although not contained 
 [ * 7 ] in one deed, but in several parchments, if all *the parch- 
 ments together in the view of the court make up one docu- 
 ment for this purpose;" per Jessel, M R., SniitJt. v. Chadivick, 
 20 Ch. D. 62; see Re Capital, dc, Association ' 21 Ch. D. 209; 
 Anderson's Case, 7 Ch. D. 75, where the articles of association of 
 a company were read to explain the memorandum. 
 
 How several deeds relating to same transaction are con- 
 strued. — All the deeds relating to the same subject-matter, and 
 forming part of the same transaction, whether they be executed 
 simultaneously; Anon, cited by Doddridge, J., in Thurman \. 
 Cooper, 2 Roll. Rep. 23; and Hopgood v. Earnest, 3 De G. J. & 
 S. 116; or after an interval, Lord CroimceVs Case, 2 Rep. 69b; 
 Farroices v. Farmer, 2 Rol. Rep. 245; S. C. snb. noni , Ferrers v. 
 Fermor, Cro. Jac. 643; Havergill \. Hare, Cro. Jac. 510; Addi- 
 son V. Otivay, 2 Mod. 233; Jones v. Morley, 1 Ld. Ray. 287 
 (where the question is discussed how far the deed to lead the 
 uses of a fine may be varied before the fine is levied); Snap)e v. 
 Turton, Cro. Car. 472; Wigson v. Garret, 2 Lev. 149; S. C, T. 
 Raymond, 239; S. C. sub. nom., The Earl of Leicester'' s Case, 1 
 Vent. 278; Herring y. Brown, 2 Show. 185; Bolton v. Williams, 
 2 Ves. Jun. 138 (where it was held that all the instruments se- 
 curing an annuity form but one assurance; so that if the me- 
 morial is defective as to one, it vitiates the whole); Yiner Abr. 
 Tit. "One Entire Conveyance;" and Hatrkins v. Kemp, 3 East, 
 410 (where the cases are discussed), must be properly construed, 
 and have their full effect as far as possible; and they will be pre- 
 sumed to have been executed in that order which will enable the 
 intent of the parties to be carried into effect, whether they be 
 executed simultaneously, Taylor d. Atkyns v. Horde, 1 Burr. 106; 
 2 Sm. L. C. p. 630; Gartside v. Silkstone, dc, Co., 21 Ch. D. 762; 
 or not, Selwyn v. Selwyn, 2 Burr. 1131; .S'. C, 1 Bl. Rep. 222, 
 where it was held that land would pass by a will executed after 
 the deed to lead the uses of a recovery, and before the recovery 
 suffered. 
 
 Counterparts. — "Although both parts of the indenture are but 
 
 as one deed, yet the part of the grantor is as the principal, 
 
 [*8] and *the other is not but as a counterpart, . . . and if 
 
 there be any difference between the parts, the counterpart 
 
 shall be made to agree with the principal, and the error shall be 
 
 deemed the misprision of the clerk;" Shep. Touch. 53. 
 
 But the counterpart may be looked at for the purpose of cor- 
 recting a manifest clerical error in the original; e.g. where by a 
 lease, executed by the lessor only, the property was demised for 
 ninety-/o?ir and a quarter years, "yielding and paying therefor 
 56
 
 SUBSEQUENT ADMISSIONS OR CONDUCT. * 9 
 
 during the said term of ninety-one and a quarter years" a yearly 
 rent, and the counterpart, executed by the lessee only, had ninety- 
 one in the habendum as well as the reddendum, it was held, that 
 there being a manifest clerical error in the lease, the counterpart 
 mio-ht be looked at for the purpose of ascertaining what the mis- 
 take was; Burchell v. Clark, 1 C. P. D. 002; S. C. 2 C. P. D. 88. 
 Presumption as to execution; Witliam v. Vane, 32 ^^ . R. 617; 
 more fully reported in Ohallis on Real Property, Appendix, p. 
 342. As to memorials, see Broicn v. Armstrong, Ir. R. 7 C. L. 
 130. 
 
 Rule 2. — Subsequent admissions or conduct. — The subsequent 
 admission, or subsequent conduct, of a party to or person claim- 
 ing under the deed as to the true meaning of the deed, cannot 
 be received to contradict, vary, or add to, the terms of the deed. 
 ^ee 2yost, p. 407, note, (a), as to covenants. 
 
 Examples. — AVhere a deed purported to convey a messuage in 
 the occupation of A. n-ifh the appurtenances, and it was proved 
 that A. was in the occupation of a small adjoining garden, it was 
 held that, the garden having passed as appurtenant to the mes- 
 suage, the declarations of the grantee that he had not purchased 
 the garden, were inadmissible to contradict the deed; Doe d. 
 Norton v. Webster, 12 A. & E. 442; S. C. 4 P. & D. 270. 
 
 Where a lease of a coal mine contained a covenant by the 
 lessee to pay to the lessor a certain share of all sums of money 
 for which the coal should sell at the pit's mouth, evidence that 
 the lessee had accounted for and paid to the lessor the same 
 share of money produced by the sale of coals elsewhere, was not 
 allowed to be given in explanation of the covenant; Clif- 
 ton V. Walmeslei/, 5 * T. R. 564; see also Simpson v. Marget ■ [ * 9 ] 
 son, 11 Q. B. 23. Voluntary settlement not controlled by 
 subsequent letter of settlor, Clavell v. Littleton, Finch Pre. Ch. 
 305. Covenant for renewal of a lease not construed according 
 to the acts of the parties; Iggulden v. May, 9 Ves. 325; S. C, 7 
 East, 237; 2 Bos. & P. N. R. 449. 
 
 Exception.— Ajicio;!^ document. — Evidence of the conduct of 
 persons living at the date of or soon after the execution of an 
 ancient document, and acting thereunder, is admissible towards 
 construing it; see post, chap. V., "Ancient Documents." 
 
 Rule 3. — Custom or usage. — Evidence of custom or usage is 
 admissible to add to the contract expressed in a deed, terms which 
 are not inconsistent with it. 
 
 ImjMed additional ternis. — ThiH rule having reference to im- 
 plied additional terms, must be carefully distinguished from one 
 
 57
 
 * 10 CONTRACT IMPLIED BY CUSTOM. 
 
 with which it is often confounded, the rule, namely, that extrinsic 
 evidence may be used to show the meaning that the usage of the 
 business to which the contract relates has affixed to words or 
 phrases employed in setting forth the expressed tern?sof the con- 
 tract {x)ost, p. 57); see the judgment of Coleridge, J., in Brown 
 V. Byrne, 3 El. & Bl. 703, infra. 
 
 The distinction is obvious: the rule under consideration forces 
 us to introduce additional and unexpressed stipulations into the 
 contract contained in the deed, while the rule referred to deals 
 with the manner in which the meaning of the expressed terms 
 of that contract is to be ascertained. 
 
 "It has long been settled, that, in commercial transactions, ex- 
 trinsic evidence of custom and usage is admissible to annex in- 
 cidents to written contracts, in matters with respect to which they 
 are silent. The same rule has also been applied to contracts in 
 other transactions of life, in which known usages have been es- 
 tablished and prevailed; and this has been done upon the 
 [ * 10 ] principle of presumption * that, in such transactions, the 
 parties did not mean to express in writing the whole of 
 the contract by which they intended to be bound, but a contract 
 with reference to those known usages. Whether such a relaxa- 
 tion of the strictness of the common law was wisely applied, 
 where formal instruments have been entered into, and particu- 
 larly leases under seal, may well be doubted; but the contrary 
 has been established by such authority, and the relations between 
 landlord and tenant have been so long regulated upon the sup- 
 position that all customary obligations, not altered by the con- 
 tract, are to remain in force, that it is too late to pursue a contrary 
 course; and it would be productive of much inconvenience if this 
 practice were now to be disturbed;" per Parke, B., Hutton v. 
 Warren, 1 M. & W. 475. 
 
 " In all contracts, as to the subject-matter of which known 
 usages prevail, parties arefound to proceed with the tacit assump- 
 tion of these usages; they commonly reduce into writing the 
 special particulars of their agreement, but omit to specify these 
 known usages, which are included however, as of course, by mu- 
 tual understanding : evidence therefore of such incidents is 
 receivable. The contract in truth is partly express and in writing, 
 partly implied or understood and unwritten. But, in these cases, a 
 restriction is established on the soundest principle, that the evi- 
 dence received must not be of a particular which is repugnant 
 to, or inconsistent with, the written contract. Merely that it varies 
 the apparent contract is not enough to exclude the evidence, for 
 it is impossible to add any material incident to the written terms 
 
 58
 
 LEASES. * 12 
 
 of a contract without altering its. effect, more or less;" per Cole- 
 ridge, J., Brown v. Byrne, 3 El. &; B. 715. 
 
 " lu a certain sense, every material incident which i^ added to 
 a written contract varies it, makes it different from vuat it ap- 
 peared to be, and so far is inconsistent with it. If, by the side 
 of the written contract without, you write the same cu itract with 
 the added incident, the two would seem to import diffi^reut obli- 
 gations, and be different contracts. To take a familiar 
 instance by way of * illus^^ration: on the face of a bill of [ * 11 ] 
 exchange at three months after date, the acceptor would 
 be taken to bind himself to the payment precisely at the end of 
 the three months; but, by the custom, he is only bound to do so 
 at the end of the days of grace, which vary according to the 
 country in which the bill is made payable, from three up to fif- 
 teen. The truth is, that the principle on which the evidence is 
 admissible, is that the parties have not set down on paper the 
 whole of their contract in all its terms, but those only which were 
 necessary to be determined in the particular case by specific agree- 
 ment, and which of course might vary infinitely, leaving to im- 
 plication and tacit understanding, all those general and unvary- 
 ing incidents which a uniform usage would annex, and according 
 to which they must in reason be understood to contract unless 
 they expressly exclude them. To fall within the exception there- 
 fore, of repugnancy, the incident must be such as if ejcpresficd in 
 the written contract, would make it insensible or inconsistent. 
 Thus, to warrant bacon to be 'prime singed,' adding 'that is to 
 say, slightly tainted,' Yates v. Pyni (6 Taunt. 446), or to insure 
 all the boats of a ship and add, "that is to say all not slung in 
 the quarter; '' Blackett v. Royal Exchange A.ssurance Company 
 (2 C. & J. 244), and other cases of the same sort scattered through 
 the books, would be instances of contracts in which both the two 
 parts could not have full effect given to them if written down; 
 and therefore, when one part only is expressed, it would be un- 
 reasonable to suppose that the parties intended to include the 
 other also;" per Lord Campbell, C. J., Hunifrei/ v. Dale, 7 El. 
 & Bl. 274. 
 
 "The custom of trade, which is a matter of evidence, may be 
 used to annex incidents to all written contracts, commercial or 
 agricultural, and others, which do not by their terms exclude it, 
 upon the presumption that the parties have contracted with refer- 
 ence to such usage, if it is applicable;" per Park, B., GH)son v. 
 Small, 4 H. L. (1 H97. 
 
 Examples of the rule as applied to Leases. ~\N'hero 
 
 the lease contained no stipulation as to the *sul)ject-iii;it- | * 12 ] 
 terof the custom, evidence of custom was admitted in H'/V/- 
 glesworth v. Dallison, 1 Doug. 201; S. (3. 1 Sm. L. ('. Sdi. I^dit. p. 
 594; and Holding v. Pigotl, 7 Bing. 405, as to the right of the teiumt 
 to enter and take way-going crops: in Beavan v. Delahxty, ( 1 H. Bl. 
 
 59
 
 * 13 CONTRACT IMPLIED BY CUSTOM. 
 
 5 ), as to his right to leave the way-going crop in a barn on the farm 
 for a certain time after the expiration of the lease. Where the 
 stipulation in the lease, though applying to the same subject-mat- 
 ter as the custom, was not inconsistent with it, evidence was ad- 
 mitted in Hutton v. W^arren (1 M. & W. 466), as to mutual rights 
 of both landlord and tenant in respect of the valuations at the 
 termination of the lease. 
 
 On the other hand, the custom was excluded as being incon- 
 sistent with the lease, in Webb v. Plummer (2 B. & Aid. 746), 
 where by the custom an outgoing tenant was entitled to an allow- 
 ance for foldage from the incoming tenant, but the lease con- 
 tained a list of payments to be made by the incoming to the out- 
 going tenant which did not comprise an allowance for foldage: 
 in Roberts v. Barker (1 Cr. & M. 808), where the custom was that 
 the outgoing tenant should leave the manure for tbe land- 
 lord and should be paid for the same, but the lease contained a 
 stipulation that he would leave it for the landlord, and contained 
 no provision as to payment: in Boraston v. Gh^eea, (16 East, 71), 
 where the custom was that the outgoing tenant should take to his 
 own use only two-thirds of the way-going crop, and the lease pro- 
 vided that he might take the whole of it, so that it did not ex- 
 ceed twenty-nine acres: and in Clarke v. Roystone (13 M. & W. 
 752), with an agreement in writing for a yearly tenancy. 
 
 If the custom is proved it must be taken to apply, unless the 
 terms of the written contract exclude it; Wilkins v. Wood., 17 L. 
 J. N. S. Q. B. 319. 
 
 Examples of the rule as applied to Mercantile Contracts. 
 — Although most of the following cases relate to documents not 
 under seal, I have thought proper to insert them as illustrating 
 
 the general principle. 
 [ * 13] * Policy of Marine Insurance. — Where policies of Marine 
 Insurance were in the ordinary form, evidence was ad- 
 mitted to prove a custom that sails taken out of a ship and ware- 
 housed while the ship was being cleaned (Pelly v. Royal Ex- 
 change Assurance Co., 1 Bur. 341. 350), and that goods remain- 
 ino" on board the ship for a long time after arrival (Noble v. Ken- 
 720icay, 2 Dou. 510), are covered by the policy: and that goods 
 stowed on deck and jettisoned are not; Miller v. Tefherington. 7 
 H. & N. 954; Ex. Ch. affirming S. C. 6 H. & N. 278. On the 
 other hand, evidence was not admitted to prove a custom that un- 
 derwriters never pay for the loss of boats outside the ship, slung 
 upon the quarter, on the ground that such evidence would have 
 contradicted the Avritten contract; Blackeft v. Royal Exchcmge As- 
 surance Co. 2 Cr. & J. 244; or to prove a custom that under- 
 writers in London insuring money advanced on freight are not 
 bound to make good a general average, where the contract was 
 that they should pay general average; Hall v. Janson, 4 El. & 
 Bl. 500. 
 
 60
 
 MERCANTILE CONTRACTS. * 14 
 
 Charter-party. — "Where the engagement was to pay at so nuich 
 per ton for goods shipped at Bombay, cotton to be calculated at 
 fifty cubic feet per ton, evidence was admitted of a custom to pay 
 according to the measurement taken at Bombay before the goods 
 are loaded; Bottomley v. Forbes, 5 Biug. N. C. 121. "Where the 
 defendant agreed to load a full and complete cargo of sugar at 
 Trinidad, evidence was admitted to prove a custom at Trinidad 
 that the sugar was to be loaded in hogsheads, and not otherwise; 
 Cuthberf v. Cnmming, 10 Ex. SOU; 11 Ex. 405. Evidence was ad- 
 mitted to show that, by usage of trade, agents signing a charter- 
 party for undisclosed principals are personally liable, if the prin- 
 cipals are not disclosed within a reasonable time; Hutchinson v. 
 Tafham, L. R. 8 C. P. 482. "Where the vessel was to deliver at 
 H., "or as near thereto as she could safely get," "to discharge as 
 customary," and she could not safely get to H., evidence of a 
 custom of the port of H., that the merchant was not 
 bound to accept delivery otherwise * than at H., was re- [*14] 
 jected as being inconsistent with the written contract; 
 Haijton V. IriHn, 5 C. P. D. 134. 
 
 Where the ship was "to be consigned to the charterer's agents 
 in China free of commission on this charter," and a custom was 
 alleged that whenever a ship chartered in London for China, is 
 agreed to be consigned to the charterer's agents, whether con- 
 signed free of commission on that charter or not, it is the right 
 and duty of such agents as the consignees of such ship, to pro 
 cure a charter or cargo for the ship for any voyage from such 
 port: and that they are entitled to be paid the usual brokers' com- 
 mission on the amount of the freight payable under such char- 
 ter, unless excluded by special contract: but that in case the 
 owners of a ship procure a charter or cargo for the ship for a 
 voyage from such port without any default of the consignees, the 
 latter are entitled to the broker's commission on any freight pay- 
 able under any such charter-party, iinless such right is excluded 
 ])y special contract. It was held on demurrer that the custom 
 could not be imported into the contract, as it added a new term 
 to it, and did not only explain particular expressions; Pl^itJipjis v. 
 Briard, 1 H. & N. 21. 
 
 Bought and Sold Note. — Evidence was admitted of a custom 
 that sale should be by sample; Syers v. Jonas, 2 Ex. Ill; (yNeill 
 V. Bell, Ir. 11. 2 C. L. 68. 
 
 Sale of " fifty tons best oil expected to arrive per The Chalco, 
 at £40 per ton; wet, dirty, and inferior oil, if any, at a fair allow- 
 ance." The oil arrived containing only one fifth of "best oil." 
 Held tbat usage miglit be proved that sucli a contract was satis- 
 fied if the oil delivei-ed contained a substantial jiortion of best oil; 
 Lucas V. Bristoir, El. B. it El. *.J07. Evidence of usage of trado 
 was admitted to sh(jw that M'herc? a broker i)urchased without dis- 
 closing the name of his priucipal, h(» was liable to be looked upon 
 
 Gl
 
 * 16 CONTRACT IMPLIED BY CUSTOM. 
 
 as the purchaser; Humfrey v. Dale, 7 E. & Bl. 266; S. C. sub 
 nom. Dale v. Humfrey, El. Bl. & El. 1004; Fleet v. Murton, L. 
 K. 7 Q. B. 126; and see Imperial Bank v. London and St. 
 [ * 15 ] Katharine *Docks Co., 5 Ch. D. 195. See also Pollock on 
 Cont. 8rd edit. p. 107 et seq. ; Smith's Merc. Law, 9th 
 edit. Bk. I. Ch. 4, p. 104. 
 
 But evidence was not admitted of the following alleged cus- 
 toms; viz., to insert the names of vendors' broTiers in the con- 
 tract when the principals were indebted to them, for the purpose 
 only of securing that the purchase-money should pass through 
 their hands; Jones v. Littledale, 6 Ad. & El. 486 : to accept bacon 
 slightly tainted as "prime singed" bacon; Yates v. Pym, 6 
 Taunt. 446; to reject undisclosed principal, and look to broker for 
 fuliilment of contract; Trueman v. Loder, 11 Ad. & El. 5S9, (on 
 which see 2 Sm. L. C. 408, 8th edit., and Lord Campbell's judg- 
 ment in Humfrey v. Dale, ubi supra) ; Barroiv v. Dyster, 13 Q. 
 B. D. 635: to give credit; Foixl v. Yates, 2 M. & G. 542: that 
 vendors wei'e entitled to retain goods till payment; Spartally. 
 Benecke, 10 C. B. 212 (but see Field v. Lelean, 30 L. J. Ex. 168; 
 6 H. & N. 617); the terms of the bought and sold note being in 
 each case repugnant to the custom. 
 
 Bill of lading. — Freight to be " five-eighths of a penny sterling 
 per pound, with five per cent, primage, and average accustomed." 
 Evidence admitted to prove that, according to usage, three months' 
 interest is deducted from the freight on goods coming from cer- 
 tain ports; Broum v. Byrne, 3 El. & Bl. 703. 
 
 Where the master of a ship agreed to take out to certain 
 places "a boat" of specified dimensions, he was allowed to prove 
 a usage to take the deck off such a boat when stowed on board 
 ship; Haynes v. HoUiday, 7 Bing. 587. 
 
 Miscellaneous. — An architect, employed by the defendants to 
 draw specifications of the plan of a new workhouse, employed 
 the plaintiff to make out the quantities; the defendants refused 
 to allow the building to proceed: Held, in an action by the plain- 
 tiff for his remuneration, that he might prove a usage in the trade 
 for architects to have the quantities taken out by surveyors; 
 
 Moony. Whitney Union, 3 Bing. N. C. 814. 
 [ * 16 ] * Written contract that plaintiff should perform at de- 
 fendant's theatre, and that defendant should engage her 
 for three years, and pay a salary of £d,. £6, and £7 per week in 
 those years respectively : evidence was admitted to show that, 
 according to the usage of the profession, the plaintiff* was only to 
 be paid during the theatrical season in each vear : Grant v. Mad- 
 do j-, 15 M. & W. 737. 
 
 Explanation. — Where one of parties is ignorant of usage. — 
 
 The rule does not apply where one of the parties is ignorant of 
 
 the usage; at all events, where it is not the usage of the whole 
 
 trade, but merely of some of the persons engaged in the trade. 
 
 62
 
 MISCELLANEOUS EXAMPLES. * 16 
 
 Thus, where it was found by the jury that a certain nsajre as to 
 policies prevailed amongst the underwriters frequenting Lloyd's, 
 and merf'hants effecting policies there, and the plaintiff effected 
 a policy there, but it was not found that he was in the habit of 
 frequenting the place, it was held that he was not bound by the 
 usage: Gabcty v. Lloyd, 3 B. & C. 798; Robinson v. Molktf. L. 11. 
 7 H. L. 802; but see Xorden Steain Company v. Dempsey, 1 C. P. 
 D. 654. See further on this subject, Johnson v. Bay It on, 1 Q. B. 
 D. 438; notes to Wigyleswovthw. Dallison, 1 Sm. L. C. 8th edit. p. 
 594; Leake on Contracts, Pt. I. Ch. 41, sec. 2, p. 176; Chitty on 
 Contracts, 11th edit. p. lOS et seq. ; Woodfall, Landl. & Tent. 
 12th edit. 724 e« se(/. ; Smith, Landl.'& Tent. 3rd. edit. p. 307; 
 Steph. Dig. Ev. Art. 90; Taylor on Evidence, 7th edit. sec. 1168 
 et seq. 
 
 63
 
 * 18 PRESUaiPTION AS TO TIME OF ALTERATIONS. 
 
 [*17] ^CHAPTER II. 
 
 ALTERATIONS. 
 
 Presumption as to time of alterations : Deeds partly in print and 
 partly in ivinting : Pencil alterations : Material alterations by 
 party : What is a material alteration : Altered deed evidence 
 of rights resulting from its execution: Alterations with con- 
 sent of all parties: Blanks filled up: Transfers in blank: 
 Cancellation of seal of one party : Alterations made by a 
 stranger: Immaterial alterations: Fraudident alterations: 
 Alterations made by mistake or accident. 
 
 Rule 4. — Alterations and interlineations in a deed are pre- 
 sumed, in the absence of evidence to the contrary, to have been 
 made prior to execution.' 
 
 In Co. Litt. 225 b (citing Dr. LeyfiekVs Case, 10 Kep. 92 b), it 
 is said: "Of ancient time if the deed appeared to be raised or in- 
 terlined in places material, the judges adjudged upon their view 
 the deed to be void. But of latter time, the judges have left that 
 to the jurors to try whether the raising or interlining were before 
 the delivery." 
 
 In the note on this passage in Butler & Hargrave's edition, it 
 is said: "It is to be presumed that an interlining, if the contrary 
 is not proved, was made at the time of making the deed;" citing 
 Trowel v. Castle, 1 Keb. 21. 
 
 In Doe d. Tatum v. Catomore, 16 Q. B. 746, Lord 
 
 [ * 18] Campbell, C. J., after citing the passage just quoted, *saYs: 
 
 " This doctrine seems to us to rest upon principle. A deed 
 
 iSharpe r. Orrae, 61 Ala. 263; Speake v. United States, 9 Cranch. 36; 
 Beaman v. Enssell, 20 Vt. 205; Wickes v. Caulk, 5 H. & J. (Md.) 36; Hoey 
 r. Jarmau. 39 N. J. L. 523: Stewart r. Preston, 1 Fla. 10. If there is any- 
 thing suspicious, or beneficial to the one producing it on the face of the deed 
 beyo'ud the fact of alteration, the presumption is rebutted, and the question 
 is then one for the jury on all the facts in the case. What is suspicious is a 
 question for the court.^ Munroe v. Eastman, 31 Mich. 283; Sin-ine r. Briggs. 
 id. 443; Holton r. Kemp, 81 Mo. 661. '"So long as there is any suspicion 
 on the face of the instrument, the law presumes nothing, but leaves the 
 question as to the time when it was done to be ultimately found by the jury 
 upon proof to be adduced by liim who offers it in evidence." Kobiuson v. 
 Meyers, 67 Pa. St. 9; Clark r. Eckstein. 10 Harris (Pa.), 507.
 
 PRESl'MPTIOX AS TO TIME OF ALTERATIONS. ' * 18 
 
 cannot be altered, after it is executed, "withont fraud or wrong; 
 and the presumption is against fraud or wrong." See albo to the 
 same effect, per Wood, Y.-C, Williams v. Ashtoii, 1 J. cV: H. 118. 
 
 "In the case of deeds, the authorities seem to show that, when 
 there ax'e interlineations, the presnmptiou is that they were made 
 before executicn. . . . And this is consistent with good sense; for 
 •every deed expresses the mind of the parties at the time of its 
 execution; and so, to alter it afterwards, would be fraudulent, 
 and in many cases highly criminal;" per Lord Cranworth, V.-C, 
 Simmons v. Rudall. 1 Sim. N. S., at p. 136. 
 
 " There is no proof when these words were interlined, or that 
 they were inserted by the direction of the settlor; therefore I 
 must look upon them as if they had been originally incorporated 
 in the body of the deed;" per Reynolds, C.B., Filzgerald v. Fau- 
 conbcrge, Fitzgibbons, Rep. 214. Words written after the testi- 
 monium before delivery taken as part of the deed; Anon. 1 Benl. 
 & Dal. 12 pi. 12. Memorandum endorsed on deed before or at 
 the time of execution taken as part of the deed; Keele v. Wlieele7% 
 8 Scott, N. R. 323; S. C, 7 M. & Gr. 665. See also Breivster v. 
 KidgcU, 12 Mod. 1&}-, Lyburn v. Warrington, 1 Stark. 162. 
 
 Observation. — Printed deed altered in icriting. — It is worth 
 observing that if a deed of a common nature be in print with al- 
 terations in writing, the written words are entitled, if there be 
 any reasonable doubt upon the meaning of the whole, to have 
 greater efPect than the printed words, inasmuch as the written 
 words are the immediate language and terms selected by the 
 parties themselves for the expression of their meaning, while the 
 printed words are a general formula, adapted equally to their 
 case and that of all other contracting parties upon similar occa- 
 sions and subjects; Robertson v. French, 4 East, 130.'" As to 
 
 '« Ciimmings v. Dearborn, 56 Yt. 141; Clark r. Woodruff, 83 N. Y. olS. 
 " Upon this (question tliere is an apparent conflict of authority. I think how- 
 ever it is apparent only and not real.- There are cases in which it has been 
 held that an interlineation is presumably an unauthorized alteration of the 
 instrument after its e.'cecution, and that the burden is upon the party offer- 
 ing the instrument in evidence to show the contrary. There are also ca.'^es 
 in wliich interlineations have been held to be jirimd facir bond jidc. and that 
 the l)urden is upon the party attacking the instrument to siiow that it was 
 altered after execution. But I think that one rule governs in all the cases, 
 and it is this: if the interlineation is in itself suspicious, as, if it appears 
 contrary to the probability of the instrument as it stood before insertion ot 
 the interlined words, or if it is in a handwriting diflerent from the body of 
 tlie instrument, in all such cases if the court considers the interlineation 
 suspicious on its face, the presumption will be tiiat it was an unauthorized 
 alteration after execution. On the other hand if the interlineation appears 
 in the same handwriting as the original instrument, and bears no evitlencc 
 on its face of having been made subse(|uent to the executiun oftlie instrn- 
 •ment, and especially if it only makes clear what was the evident intention 
 of the parties, the law will ])re.sume that it was made in good faith and be- 
 fore execution." McCrary, C. .J., in Palmer v. Cox, 1 McCrary, 1:51; McOor- 
 miek ?•. Fitzmorris, '.V.) Mo. 34; Huntingdon f. Finch, 3 Ohio St. 445; ller- 
 rick f. Mai in, 21 Wend. (X. Y.) 488. 
 
 5 IXTKKrUKTATIO.V OF OKKOS. 65
 
 * 19 MATERIAL ALTERATIONS. 
 
 looking at words struck out of a printed form, see Strickland v. 
 Maxtvell, 2 Cr. & M. at 550. 
 
 Pencil alterations. — " It has been held that the general pre- 
 sumption and probability are, that ■where alterations (in a will) 
 in pencil only are made, they are deliberative; where in ink they 
 are final and absolute;" Wms. Exec. Pt. I. Bk. II. s. 5. I have 
 been unable to find any authority as to the efiect of pencil altera- 
 tions in deeds, but they would probably be disregarded, whether 
 made before or after execution. 
 
 [ * 19 ] * Rule 5. — Material alteration Tfiacle hy party after 
 execution. — If a material alteration be made in a deed 
 by or with the consent of any party to it after execution, by ra- 
 sure, interlineation, or otherwise, he cannot afterwards as plain- 
 tiff enforce any obligation for his benefit contained in it." 
 
 1st Explanatory Observation. — Material alteration de- 
 fined. — An alteration which, if made before execution, would 
 have affected the rights or obligations of any person claiming 
 under the deed, is material : ^ possibly other alterations may be 
 material ; Master v. Miller, 4 T. R. 320; 2 H. Bl. 141; 1 Sm. L. 
 C. See the authorities collected in Caldwell v. Parker, 3 Ir. Rep. 
 Eq. 519; Suffell v. Ba7ik of England, 7 Q. B. D. 270; 9 Q. B. D. 
 555; Taylor, Ev. 7th ed. s. 1819 et seq. Leeds Bank v. Walker, 
 11 Q. B. D. 84. 
 2nd Explanatory Observation. — Cases in which a deed ma- 
 in several early cases it Avas laid down that alterations are presumed to 
 have been made subsequent to execution. Morris r. Vanderen, I Dal. (Pa.) 
 67; Provost v. Gratz. 1 Pet. C. C. 365; Dow r. Jewell, 18 N. H. 356; Burn- 
 ham V. Ayer, 35 N. H. 351; and see United States v. Leim, 1 How. 104. 
 
 Another doctrine was advanced by the Massachusetts courts, viz: "There 
 is no pre.suiuption ol" law, either that the alterations and interlineations ap- 
 pearing on the face of a deed were made prior to the execution of the docu- 
 ment, or that they were made subsequently. The question is to be settled 
 by the jury, iipon all the evidence in the case oflered by the parties and sur- 
 rounding circumstances, including of course the character of the alteraticms 
 and the appearance, of the instrument alleged to have been altered. The 
 burden of proof is on the party offering the instrument." Ely v. Ely, 6 Gray, 
 439: Wilde v. Armsby, 6 Gush. 314; Comstock v. Smith, 26 Mich. 306; Gal- 
 land V. Jackman, 26"Cal. 85; Cole v. Hills, 44 N. H. 227; Craft v. White, 36 
 ,Miss. 455. 
 
 ^ Marcy r. Dunlap, 5 Lans. (N. Y. ) 365; Johnson r. Moore, 33 Kan. 90; 
 Newell r. Mavberry, 5 Leigh. (Va. ) 250; Deems v. Phillips, 5 W. Va. 168; 
 Lewis r. Payne, 8 Cow. (N. Y.) 71; Getty v. Shearer, 20 Pa. St. 12. 
 
 ^ A material altei-ation is one which cau.ses the instrument to speak a lan- 
 guage different in legal effect from that which it originally spoke. ISIorrill 
 V. Otis, 12 N. H. 466; Oliver v. Hawley, 5 Neb. 439: Newell r. Mayberry, 3 
 Leigh (Va.), 2.50; Cutler r. Rose, 55 Iowa, 456: Johnson v. Moore, 33 Kan. 
 90; Kelly 7'. Trimble, 74 111. 428; Marcy v. Dunlap, 5 Lans. (N. Y.) 365. 
 Materiality is a question for the court. 
 
 66
 
 MATERIAL ALTERATIONS. * 20 
 
 teriallij altered may be given in evidence by plaintiff. — There is a 
 distinction between those deeds, or clauses of a deed, which liavo 
 a continuing effect or are executory, such as a covenant to pay a 
 sum of money, and those which produce their full effect at the 
 instant of execution, such as a conveyance of land. No case can 
 be found in which a deed or clause of the latter nature has been 
 prevented from taking effect because the deed was altered after 
 execution: so that an altered deed may be given in evidence to 
 prove any effect produced by it at the instant of execution, or of 
 any right which existed aliunde, and of which it is evidence. 
 SeejiosY, p]). 21. 28. 
 
 3rd Explanatory Observation. — A defendant may give 
 altered deed in evidence. — A deed which has been materially 
 altered by a defendant may be given in evidence by him. See 
 Pattin.'ion v. Luckley, L. R. 10 Ex. 3:^0 (a case of an instrument 
 not under seal), and the cases there cited. 
 
 * Rule as formerly stated. — The rule is sometimes, and [ * 20 J 
 particularl}^ in the older cases, stated as follows: " A ma 
 terial alteration in a deed made after execution renders it void." 
 The rule as thus stated must be qualified by the foregoing exi)]an- 
 atory observations. It is probable that the reason of the rule 
 being stated in this form was, that when an altered deed was de 
 clared upon by a plaintiff, tlie proper plea for a defendant who 
 defended the action on the ground of the deed being altered was 
 "jioji est factum.^'' 
 
 " If a deed that is well and sufficiently made in its creation, 
 shall be afterwards altered . . .in any material place ; . . be 
 the same either by the y)arty himself that hath the procerty of 
 the deed, or any other {a) whomsoever, except it bo by him that 
 is bound by the deed, or by his order or consent, for he shall not 
 take advantage of his own wrong, and be the same with or with 
 out the consent of him to whom it is made or doth belong; in 
 this case, and by either of the^o means, the deed is become 
 
 void But if the alteration be made by the party him.'^elf 
 
 that is bound by the deed in any material or immaterial ])art 
 thereof, or if a stranger without the privity or consent of the 
 owner of the deed shall make any such alteration in any part of 
 a deed not material, hereby the deed is not hurt, but it remaiueth 
 good notwithstanding." — Sh(»p|). Touch. 08. 
 
 '■ When any deed is altered in a point material, by the ])lain- 
 tiff himself or by any stranger without the j)rivity of the oblige*', 
 be it by interlineation, addition, rasing, or by drawing of a pen 
 
 (aj As to alterations Ijy a stranger, am; post. i). .'!1. 
 
 67
 
 * 22 MATERIAL ALTERATIONS. 
 
 through a line, or through the midst of any material word, the 
 deed thereby l)ecomes void;" PigoVs Case, 11 Rep. 20 b; S. C. 
 2 Buls. 240. 
 
 "That the alteration in this instrument (a bill of exchange) 
 would have avoided it, if it had been a deed, no person can 
 doubt. And why, in point of policy, would it have had that 
 effect in a deed? Because no man shall be permitted to take the 
 chance of committing a fraud, without running any risk 
 [ * 21 ] of losing by the event, Avhen it * is detected;" perKen- 
 von, C.J., in Master v. Miller, 4 T. R. 329; S. C. 2 H. 
 Bl. 140;' 1 Sm. L. C. (8th ed.) 857. 
 
 " The strictness of the rule on this subject, as laid down in 
 Pigqfs Case, can only be explained on the principle that a party 
 who has the custody of an instrument made for his benefit is 
 bound to preserve it in its original state. It is highly important 
 for preserving the purity of legal instruments that this principle 
 should be borne in mind, and the rule adhered to. The party 
 who may suffer has no right to complain, since there cannot be 
 any alteration, except through fraud or laches on his part; " per 
 Lord Denman, C.J., Davidson v. Cooper, 13 M. & W. 352, on 
 app. from 11 M. & W. 778; S. C. 13 L. J. Exch. 270. 
 
 "Where a thing lies in livery, a deed formerly sealed may be 
 given in evidence relating to it, though the seal be afterwards 
 torn off; for the interest passed by the act of livery that invests 
 the party with the possession, and the possession that was once 
 transferred by the deed doth not return back again, though the 
 deed was cancelled; . . .so, if the conveyance was made by 
 lease and release, the uses were once executed by the statute, 
 and they do not return back again by cancelling of the deed;" 
 Gilbert on Evid. (0th ed.) p. 95. 
 
 Examples, where after alterations made by or with the 
 consent of the person setting up the deed, he was unable 
 to enforce the obligations contained in it.*— Bond. — The 
 condition of a bond which is erased is not good; Bro. Ab. Faita 
 (pi. 7); see pi. 9 & 11. Where a man was bound in a single 
 obligation, and the obligee added a condition; held, that tbe ob- 
 ligee could not enforce the obligation, though the alteration was 
 to the advantage of the obligor; Keilw. 102, pi. 2; 104, pi. 7. 
 See jiost, p. 82. 
 
 Policy. — Policy of Insurance " on ship and outtit " altered by 
 
 the consent of all parties to "ship and goods;" French v. 
 
 Patton, 9 East, 351, altered by the assured without the consent 
 
 of the underwriters as to the time of sailing; Fairlie v. 
 
 [*22] Christie, 1 Taunt. 410; as to places to be * called at, 
 
 Forshaw v. Chabert, 3 Brod. & B. 158; held, in each 
 
 * Alterations of the description of property in a deed avoid it. Marcy v. 
 Dunlap, 5 Lans. (N. Y.) 365; Perean v. Frederick, 17 Neb. 117. 
 
 6S
 
 MATERIAL ALTERATIONS. * 23 
 
 case that the assured could not recover on the policy. Policy of 
 insurance on a ship executed in printed form, without any speci- 
 fic subject of insurance, and the subject-matter afterwards added 
 in writing; held, that the assured could not recover against 
 underwriters who had not signed the addition; Laughorn v. Co- 
 logan, 4 Taunt. 330; see also Sanderson v. McCuilom, 4 J. B. 
 Moore, 5; S. C, sub nom. Sanderson v. Symonds, 1 Brod. & B. 
 426; where the addi'^ion was held immaterial; and see, as to al- 
 terations in policies, 30 & 31 Yict. c. 23, s. 10. 
 
 Charter-party. — Alterations made in a charter-party by the 
 broker, who acted for plaintiff, by adding after the words "to 
 sail on or after the 15th day of March next," the words "wind 
 and weather permitting;" held, that the plaintiff could not en- 
 force the charter-party; Croockewit v. Fletcher, 1 H. & N. 893. 
 
 Covenant. — M. covenants to deliver to W. by a certain day 
 "the whole of his mechanical pieces as per schedule annexed ;" 
 the schedule was annexed by the agent to both parties after the 
 execution of the deed; held, on an action for non-delivery of the 
 articles, that the schedule was a material part of the deed, which 
 was not intelligible without it, and accordingly the defendant 
 succeeded on a jilea of non est factum; Weeks v. Maillardet, 14 
 East, 568. See obs. on this case, jJost, p. 30. 
 
 Creditors^ deed. — A deed, registered under s. 192 of the Bank- 
 ruptcy Act, 1861, was expressed to be made between the debtor, 
 a surety, and scheduled creditors; at the time of execution no 
 schedule was affixed, but one was afterwards added by the debtor; 
 held, that he could not afterwards set up the deed; Sellin v. Price, 
 L. R. 2 Ex. 189. 
 
 Release. — Action on a Bill of Exchange accepted by the defend- 
 ant; defendant pleaded a release by deed: it appeared that 
 when the plaintiff executed the deed, which was a creditors' deed, 
 there was a blank opposite his name in the schedule of debts, 
 which was afterwards incorrectly filled up l^y the defend- 
 ant: the plaintiff replied non est * factum, and sue- [ * 23 ] 
 ceeded Fazakerly v. M' Knight, 6 El. & Bl. 795. 
 
 The rule is applied to instruments not under seal : 
 
 Assumpsit brought on a guarantee in writing; plea, that while 
 the guarantee was in plaintiff's hands, it was, without thp defend- 
 ant's consent or knowledge, materially altered by the addition of 
 two seals opposite tlie nanios of the plaintiff and defendant; Iwld, 
 that the defendant was entitled to judgment; Dacidson v. Cooper, 
 U M. & W. 778; on appeal, 13 M. & W. 313. 
 
 The rule has been api)lied to alterations in a sale note : l^uccll 
 v. iJireft, 15 East, 29; in a bill of exchange: Master v. Milh i\ 1 
 T. R. 320; on appeal, 2 H. Bl. 110; S. C. 1 Sm. L. C. (8th ed. ) p. 
 857; Knilly. Williams, 10 East, 431; Cowie \. llalsall, 4B. & 
 
 69
 
 *24 ALTERED DEED ADMITTED AS EVIDENCE. 
 
 Aid. 197; Tidmarsh v. Grover, 1 M. & S. 735; Bnrchfieldv. Moore, 
 3 El. & Bl. 683; in a note of the Bank of England, Suffell v. Bank 
 of England, 7 Q. B. D. 270; 9 Q. B, D. 555: Leeds, &c., Bank v. 
 Wa//c('r, 11 Q. B. D. 84 (a). 
 
 In most of cases cited above, the instrument was declared to 
 be void: but see ante, p. 20. 
 
 Examples where an altered deed was admitted in evi- 
 dence to prove an effect produced by it af the instant of 
 execution, or a right existing aliunde.'— In Woodward v. As- 
 ian, 1 Vent. 296, the Court said that a rent or other grant was not 
 lost by the destruction of the deed, as a bond or chose in action 
 was. The reporter adds, "■Qiia^re, if the party himself cancel it." 
 
 A. made an additional jointure to his wife by voluntary convey- 
 ance, which he kept in his own power, and he afterwards cancel- 
 led the deed. The wife after his death found the deed, and re- 
 covered by virtue of it; Lady Hudson's Case, cited by Wright, 
 L. K., 2 Vern. 475; Ch. Prec. 235. 
 
 Decreed that, though a trust deed was cancelled, yet it should 
 not divest the estate of the trustees therein named; Leech v. 
 Leech, 2 Rep. Ch. 100; Sepalinoy. Tivitty and Naldredv. Gilham, 
 
 cited post, p. 120. 
 [ * 24 ] * Assignment by Commissioners of Bankrupts to plain - 
 tifPs and S. Afterwards, the assignment was cancelled, and 
 another was made to the plaintiffs only. Held, that the cancelling 
 of the first assignment did not alter the property, which re- 
 mained in all three; Nelthorpe & Farrington v. Dorrington, 2 Lev. 
 113. 
 
 The cancelling of a deed does not revest the property conveyed; 
 per Holroyd, J., Doe d. Lewis v. Bingham, 4 B. & Aid. 677.*^ 
 
 [a) See as to alterations in bills of exchange, 45 & 4G Vict. c. 61, ss. 63, 
 64. 
 
 ^ A material alteration by -svliomsoever made will not aftect the le^al title 
 to a thinu; which passed i)y the deed. Woods r. Hildebrand, 46 j\Io. 284; 
 T.ewis r. Pavn, 8 Cow. (N. Y.) 71; Herrick v. INIalin, 22 Wend. (N. Y.) 488; 
 Hatch r. Hatch, 9 Ma.'^s. 307; Chessman r. Whittemore, 23 Pick. (Mass.) 
 231; Bliss v. ]\lclntvre, 18 Vt. 466; Wallace r. Harmstead, 44 Pa. St. 191; 
 Coit V. Starkweather. 8 Conn. 289; Wilke v. Wilke, 28 Wis. 296; Stonely v. 
 Epperson, 45 Tex. 644; Strawn v. Norris, 21 Ark. 80; Linker^'. Long, (A 
 N. C. 296. But the 'grantee can enforce no future benefits thereunder. 
 " There is a manifest distinction between executory contracts and convey- 
 ances of property. Where deeds of conveyance are completed, and posses- 
 sion is delivered under them, so far as the change of ownership depends on 
 them, they ar<^ executed and the property passes and vests in the grantee. 
 The instruments may become invalid so that no action can be maintained 
 upon the covenants contained in them, and yet the titles which have been 
 acquired under them remain unaffected." Cheeseman v. Whittemore, 23 
 Pick. (Mass. ), 231 ; Herrick ?•. Malm, 22 Wend. (N. Y.) 488; Briggs r. (J-leen, 
 7 Mo. 572; Barrett r. Thorndike, 1 Greulf. (Me.) 75; Waring r. Smith, 2 
 Barb. Ch. (N. Y.) 119; Hefelfinger v. Shutz, 16 S. & K. (Pa.) 44; Comm. v. 
 Hanion, 1 Nott. & M. (S. C.) 534. 
 
 * See cases cited in last note. 
 
 70
 
 ALTERED DEED ADMITTED AS EVIDEXCE. * 25 
 
 In the important case of Davidson v. Cooj^er, 11 M. & "W. 778, 
 Lord Abinger, C.B., in delivering the judgment of the court, says: 
 " The moment after their execution, the deeds [sc. of conveyance] 
 become valueless, so far as they relate to the passing of the es- 
 tate, except as affording evidence of the fact that they were exe- 
 cuted. If the eifect of the execution of such deeds was to create 
 a title to the land in question, that title cannot be affected by the 
 subsequent alteration of the deeds; and the principles laid down 
 in PigoVs Case would not be applicable. But if the party is not 
 proceeding by ejectment to recover the land conveyed, but is suing 
 the grantor under his covenants for title, or other covenants con- 
 tained in the release, there the alteration of the deed in any ma- 
 terial point, after its execution, whether made by the party or by 
 a stranger (a), would certainly defeat the right of the party suing 
 to recover." 
 
 " I hold clearly that the cancelling a deed will not divest prop- 
 erty which has once vested by transmutation of possession; and 
 I would go farther, and say that the law is the same with respect 
 to things that lie in grant;" per Evre, C.J., Bolton v. Bis/top of 
 Carlisle, 2 H. B. 2(33. 
 
 An assignment by A. of all bis personal property and effects to 
 trustees for the benefit of creditors, was held to have passed the 
 property to the trustees, though the deed purported to have as 
 parties the scheduled creditors of A. and the schedule was 
 added after the execution * by A.; West v. Steicard, 14 [ *25 J 
 M. & W. 47; distinguishing Weeks v. Maillardet, 14 
 East, 568; ante, p. 22. 
 
 "There is no ground for saying that, if a deed be altered in a 
 material part, it is rendered void from the beginning. It ceases 
 to have any new operation, and no action can be brought in re- 
 spect of any pending obligation which would have arisen from it 
 had it remained entire; but it may still be given in evidence to 
 prove a right or title created by its having been executed, or to 
 prove any collateral fact;" per Lord Campbell, C.J., Agricul- 
 tural Cattle Insurance Co. v. Fitzgerald, 10 Q. B. 440; Steicarf v. 
 Aston, 8 Ir. C. L. Rep. 35, and see, per Lord Abinger, C. B., 
 Hutchins v. Scott, 2 M. & W. 815, 816; and the American case of 
 Lewis v. Payne, 8 Cowen, 71. 
 
 The mere cancelling of a lease does not, since the Statute of 
 Frauds, operate as a surrender so as to destroy the estate vested 
 in the lessee: Magennis v. MarCiiUogh, GWh. E(|. Bep. 235; Roe 
 d. Berkeley v. Abj). of York, G East, 86: nor to defeat the rigbt 
 of tlie lessor to recover rent in an action on the demise; for, the 
 rent being incident to the reversion, such an action lay for the 
 reversioner at common law, and is founded, not on the deed, but 
 on the fact of the demi.se, of which the deed is evidence; Jjord 
 
 (a) See as to alterations by a stranger, post, p. 31. 
 
 71 •
 
 * 26 ALTERATIONS WITH CONSENT OF ALL PARTIES. 
 
 Ward V. Litmley, 5 H. & N. 87. See also as to the old doctrine, 
 Miller v. Maimcaring, Cro. Car. 397; Anon., Moore, p. 35, pi, 
 
 116. 
 
 To prove a right existing aliunde. — Where a settlemeut was 
 o-ained under an indenture of apprenticeship, and afterwards the 
 deed was materially altered, it was admitted as evidence to show 
 a settlement gained prior to the alteration; Littleham v. St. Leo- 
 nards, cited Co. Rep. by Fraser, Vol. VI., p. 48, note B. 
 
 Examples where the alterations are made with the con- 
 sent of all parties. — Here a distinction must be drawn be- 
 tween cases where the effect of the alteration is to substitute a 
 
 new contract for the original contract, and cases where 
 [ * 26 ] the * alteration is made for the purpose of correcting a 
 
 common mistake, or carrying out the original intention. 
 In the former cases, the deed as executed expressed the intention 
 of the parties at the time of execution, and accordingly the altera- 
 tion falls within the rule, and. vitiates the deed;' French v. Pat- 
 ton, 9 East, 351: but in the latter case, the deed as executed did 
 not express that intention ; the alteration is necessary for the pur- 
 pose of expressing that intention correctly, and the deed as altered 
 is binding:^ Bates v. Grabham, Salk. 444; Cole v. Parkin, 12 East, 
 471. 
 
 Blanks filled up. — On the same principle, the mere filling up 
 of blanks after execution with the consent of all parties, does not, 
 while tilling them without sucn consent, does, vitiate the deed. 
 See Pigott on Recoveries, p. 213.^ 
 
 " Cheaton v. Chamblies, 6 Raud. (Va.) 86; Colt v. Starkweather, 8 Conu. 
 289; Sharpe v. Oram, 61 Ala. 263; Collins v. Collins, 51 Miss, oil; Moore v. 
 Lessee of Bickham, 4 Binn. (Pa.) 1; In Speake v. United States, 9 Crauch, 
 28, it was decided that the name of the obligor in a bond might be erased by 
 consent of the parties, and another name inserted without avoiding the deed ; 
 Storv, J., saying: " This principle equally applies whether the alteration or 
 erasure be made in pursuance of an agreement or cousent prior or subseciuent 
 to the execution of the deed." Livingston, J., in a dissenting opinion drew 
 the distinction made in the text. " No change whatever in a sealed iustru- 
 ment after its execution which may increase the liability or be in any way 
 to the predjudice of the party whose deed it is, should be placed on him by 
 parol testimony; and so rice versa that no alteration which may be in any way 
 injutious to the grantee or obligee, should be set up by the other party. But 
 the terms in which the deed is originally executed should alone be binding 
 until alterations are introcluced into it with the same solemnities which gave 
 exi.stence to the first." 
 
 * .Jordan v. Stevens, 51 ISle. 78; Gordon r. Sizer, 39 Miss. 818; and consent 
 to the correction of obvious mistakes will be presumed, Bowers t\ Jewell, 
 2 N. H. 543; Cole v. Hills, 444 N. H. 543; Sharpe r. Orme, 61 Ala. 263. 
 
 " A deed executed and tlelivered with a blank for the name of the grantee 
 
 72
 
 BLANKS FILLED UP. * 27 
 
 A comparison of the reports of the two actions of Marklia))! v. 
 Fox, as cited in Markhani v. Gouastou, Cro. El. 626, and Moore, 
 547, brings out the distinction very clearly. In the case reported 
 in Croke, Markham brought an action on a bond against Fox, who 
 successfully defended it on the plea that blanks, namely, the 
 Christian name and place of habitation of a person mentioned in 
 the condition, had been filled up after execution, and therefore 
 that it was not his deed. In the report in Moore, it appears that 
 in a subsequent action on the same bond, the plaintift' alleged 
 that the blanks had been filled up witlitlw consent of the defend- 
 ant, and succeeded on demurrer. See the reporter's note in French 
 V. Patton, y East, at p. 354. 
 
 The deed was held valid in the following cases: Where a person 
 nominated by deed as attorney filled up a blank left for his Chris- 
 tian name: Eagleton v. Gntteridge, 11 M. & AV. 465; where a 
 blank left for the date was filled up with a date which the 
 court assumed to be * the true date, and to be an imma- [ * 27 ] 
 terial alteration: Keane\. Smallbone, 17 C. B. 179; a con- 
 veyance made by A. bf his property to trustees for the benefit of 
 his creditors, the particulars of whose demands were stated in the 
 deed, but a blank was left for on§ of the principal debts, the exact 
 amount of which, being subsequently ascertained, was inserted in 
 the deed in A.'s presence and with his assent, was supported on 
 the ground that either it was not a deed till the blank was filled 
 up, and that the filling up of the blank in the presence of A. was 
 equivalent to execution by him, or that it was originally a deed 
 intended to take effect as soon as the blanks were filled up: Hud- 
 son V. Revett, 5 Bing. 368; S. C. 2 Moo. & P. 663. Where a mort- 
 gage was executed with blanks for the names of the tenants, the 
 
 is a nullity; but it may be made efficient by the filling of the blank by one 
 authorized to do so. Allen v. Winthrow, 110 U. S. 119. This authority 
 must 1)6 given by the grantor, but may be given by parol or may be imjilied. 
 " Altliough it was at one time douljted -whether a parol authority was ade- 
 quate to autliorize an alteration or an addition to a sealed instrument, tlie 
 better opinion at this day is tliat the power is suflicient." Drury r. Foster, 
 2 Wall. r>4; Field v. Stagg, 52 l\Io. 534; Burnham v. Wrayman, 49 ]\Io. ;«J5; 
 Vanetta c. Evanson, 28 Wis. 3:!; Vliet r. Camp. 13 Wis. 221; Kaderr. Davis, 
 (J!) Tenn. 5:50: Kagsdale r. Ko})inson, 48 Tex. 379; Clark v. Allen, :!4 Iowa, 
 190; State r. Young, 23 Minn. 551; Ex parte Kirwin, 8 Cowen, 118; Wiley r. 
 Moore, 17 S. & K. (Pa.) 4:58; Coster's Ai)p., 13 Pa. St. 292, on the other hand 
 it is held that this authority to fill l)lanks in a sealed instrument juust be 
 under seal to be eflieient. " A writing, though executed with all the solemni- 
 ties of a deed without an obligee isamere nullity. It imjwses no obligation 
 upon the party issuing it; it imposes no right upon him who receives or holds 
 it. It is not simply an imperfect deed, it is Jio deed at all. It only ))ecomes 
 a deed when the name of the obligee is inserted and delivery made J)y the 
 
 obligor or some one legally authorized by him: If ithe act of the 
 
 agent is the execution and delivery of a deed, his authority must be by deed." 
 Preston v. Hall, 23 (iralt. (Va.) (iOO: Ingram 7'. Little, 14 Ca. 1 73;" Crass r. 
 State Bank, 5 Ark. 5;>5; Upton r. Archer, 41 Cal. 85; Bardcn r. Soutlierland, 
 70 N. C. 128; Sacra v. Hudson, 59 Tex. 207. And see, Vase i\ Dolan, 108 
 Ma.ss. 158; Lindsley v. Lamb, 34 Mich 509. 
 
 73
 
 * 28 BLANKS FILLED UP. 
 
 date of the deed, and the date of the redemption, all of which 
 were subsequently tilled in, it was held that, these being merely 
 formal alterations, and made only for the purpose of completing 
 the expression of the intention of the parties to the deed, already 
 apparent on the face of it, the deed as completed was good: Ad- 
 setts V. Hives, 33 Beav. 52. 
 
 On the other hand, in an action on a bill of exchange, defend- 
 ant pleaded a release by deed, and the plaintif£ replied no7i est 
 factum; the deed recited that the defendant was indebted to cer- 
 tain parties thereto in the sums set opposite their names; and in 
 consideration of a guarantee of ten shillings in the pound by a 
 third party, the creditors parties thereto released their debts; a 
 blank which was opposite the name of the plaintiff was filled up 
 with a wrong amount without his authority, and the plaintitf suc- 
 ceeded on the plea of noji est factum; FazakerJij v. Rr Knight, C 
 El. & B. 795. 
 
 Presumption of fresh execution. — As to presuming, if necessary, 
 a fresh execution of the deed after the alterations have been made, 
 or the blanks tilled up, see Cole v. Parkin, 12 East, 47; Hudson 
 V. Revett, supra; 5 Bing. 368; S. C. 2 Moo. & P. 663; and as to 
 the necessity for a new stamp, s^ee Cole v. Parkin, 12 East, 47. 
 
 Alterations after execution by some parties. — Reference 
 [ * 28 ] may also be made to Doe d. Lewis v. Bingham, * 4 B. & Al. 
 672; HalU. Chandless, 12 Moore, 316; S. C. 4 Bing. 123; 
 where blanks were filled up and alterations made after some only 
 of the parties had executed without their consent, and being im 
 material as regards them, were held not to vitiate the deed. It 
 appears that the insertion with the consent of all parties of the 
 name of an additional obligor to a bond after execution does not 
 vitiate it; Zouch v. Clau, 2 Lev. 35; on the ground, apparently, 
 that it operates as a new deed; S. C. 2 Keb. 872. Where the 
 conveying party had executed a marriage settlement and imme- 
 diately before the execution by any other party an objection was 
 taken by the father of the intended wife to a clause, which was 
 then struck out, and thereupon the conveying party re-executed 
 and the other parties executed, it was held, that as the deed was 
 only in fieri when the alteration was made, it did not require a 
 fresh stamp; Jones v. Jones, 1 Cr. & M. 721; S. C, 3 Tyrw. 
 890. 
 
 Transfers in t)lank. — It must be observed that in cases already 
 treated of, where the blanks are filled up with consent of all 
 parties, the object is to carry out the contract previously made 
 between the parties; but, on the other hand, where an instrument 
 is executed in the form of a deed, not in pTirsuance of any previ- 
 ous contract, bat with the intention of getting some person to 
 enter into a contract which can be expressed by filling his name 
 into the blanks of the instrument, the instrument, notwithstanding 
 that the blanks may be filled up, is void as a. deed, ( The Soci^t^ 
 74
 
 TRANSFERS IN BLANK. * 29 
 
 G^n^rale de Paris v. Tramirays Co., Limited, 14 Q. B. D. 424,) 
 although it may possibly have the efifect of showing what was iu- 
 teuded to be the contract subsequently entered into between the 
 parties: Re Barned's Banking Co., Tj. R. 3 Ch. 105; and, if a 
 deed is not necessary, may take effect as an instrument in Avrit- 
 ing: Re Tahiti Cotton Co., Ex parte Sargent, L. R. 17 Eq. '273; 
 France v. Clark, 22 Ch. D. 830; 2(3 Ch. D. 257. 
 
 It is said in Lindlev on Partnership, 4th ed., p. 705: "What- 
 ever may be the legal method of transferring shares, and whether 
 a formal deed is'or is not requisite, it is a common practice in 
 the share market for a seller of shares to sign a deed or instru- 
 ment of transfer with the name of the transferee in blank. The 
 buyer then inserts his own name, or without doing so resells, and 
 hands the blank transfer to the new purchaser, who again either 
 inserts his own name as the transferee, or resells and delivers the 
 transfer, still in blank, to the purchaser from him, and so on. . . 
 A deed executed by A., and purporting to transfer the 
 
 property to , i. e., *to nobody, is altogether in- [ * 29 ] 
 
 operative as a deed; and consequently, if a shareholder in 
 a company, the shares in which are transferable by deed only, exe- 
 cutes a transfer of his shares in blank, he still remains legal owner 
 of the shares, and the holders of the deed acquire no other title 
 to the shares than a right to have them properly transferred, or 
 to have the transferor declared a trustee for them." See Hibhle- 
 wJiite v. 3rMorine, 6 M. & ^\. 200; S. tl. 4 Jur. 7G9 (which over 
 ruled Texeira v. Evans, 1 Anstr. 228); Shep. Touch. 68; Humble 
 V. Langston, 7 M. & W. 517; France v. Clark, 26 Ch. D. 257. 
 
 The instrument in blank does not at law transfer the ownership 
 of the shares to which it relates, even as between the vendor and 
 the purchaser; nor does the purchaser, by taking such a transfer, 
 contract any obligation at law to procure himself or any one else 
 to be registered as a shareholder, or to indemnify the seller from 
 the consequences of his continuing to be a shareholder as between 
 himself and the company. A deed of transfer with a blank for 
 the name of the transferee, is, as a deed, as invalid in equity as 
 at law; and the shares comprised in it remain in equity as at law 
 the property of the transferor. See also Tayler v. Great Indian 
 Peninsula Rail. Co., 4 De G. & J. 559; and Ex parte Stcan, 7 C. 
 J3. N. S. 400; Sivan v. North British Australasian Co., Limited, 
 7 H. & N. 603; 2 H. & C. 175; where the names of the trans- 
 ferees and the description of the shares were fraudulently added 
 after the execution of a transfer in blank by the shareholders.'** 
 
 '" Tlie American courts universally rocoirnizc tlic validity of l)lanl< ])o\vcrs 
 of attorney for the transfer of sliares of stix'k. Tliey irround theirdccisiuns, 
 however, upon commerc-JMl necessity and the universal usajre of deahTs in 
 tlie ueiroliation and transfer of stocks, l.ewis on Stocks. lionds, <kr . Ciia]). 
 :'.; Kortri-rht c. IJuffalo Com. IJk., :>0 Wend. !)1 ; S. ('. ;i:> Wend. 3 IS; I)<iiny 
 V. Lyon, :5S Pa. St. 98; German Bldg. As.s. v. Sendmeyer, nO I'a. St. G7; 
 
 75
 
 *30 SEAL OF ONE TARTY CANCELLED. 
 
 AVhere the names of both vendor and purchaser are inserted in 
 the transfer, and the description of the subject-matter is merely 
 amplitied after execution, but a contract complete in its essential 
 terms is entered into before execution, the blank being left only 
 because the parties are ignorant of the full description of the 
 property, the deed as filled up is binding; but, on the other hand, 
 if no complete contract be made before execution, and the de- 
 scription is wholly wanting, so that the deed passes noth- 
 [ * 30 ] ing, the subsequent filling up of a blank by * supplying 
 the whole description will not enable it to do so; so that 
 the distinction seems to be between filling up an immaterial blank, 
 and supplying a description which would be wholly wanting but 
 for the additions made. But semble, even such an instrument 
 might be supported in equity; see per Lord Cairns, L.J., In re 
 Barned's Banking Co., L. E. 3 Ch. 105, 115. 
 
 The case of IFeefcs V. Mm/Zarde^, 14 East, 569 {suxiva, p. 22), is 
 not at variance with this rule, because in that case the plaintifi" sued 
 on the deed with the schedule, and therefore the Court could not 
 but give judgment in favor of the defendant's plea, non est fac- 
 tum; but it by no means follows that the plaintiff would not 
 have succeeded if he had sued on the deed without the schedule; 
 for the schedule was only an enumeration of property, which was 
 perfectly ascertained by the deed without the schedule— that is, 
 the schedule was an immaterial addition. 
 
 Exception. — Cancellation of seal of one party. — The cancel- 
 lation of the seal of one party to a deed, where the parties are 
 severally bound, does not vitiate the deed as to the other parties; 
 but it is otherwise if they be jointly bound." 
 
 Examples. — Where, in a charter-party indented, the covenants 
 on the part of the master and owners of a ship with the merchants 
 were joint, and the covenants on the part of the merchants were 
 several, it was resolved that if the seal of one of the merchants 
 was broken from the deed, it did not avoid the deed, but only 
 ao'ainst him; but if any of the seals of the master or owners 
 had been broken from the deed, all their covenants would have 
 been defeated. Wh^n the covenants are several, they are as sev- 
 eral deeds written on the same piece of parchment; Mathewson'' s 
 Case, 5 Rep. 22 b; S. C, sub nom. Mathewson v. Lydiate, Cro. 
 Eliz. 408, 470, 546. 
 
 McNeil ?'. Tenth Nat. Bank. 45 N. Y. 325; Cuttiniz; v. Damorel, 88 N. Y. 410; 
 Dav V. Holmes, 103 Mass. 306; Bri(l<ieport Bank r. N. Y. & N. H. R. Co., 
 30 Conn. 274: Walker ?-. Detroit Transit Ry. Co., 47 IMicli. 338; Broadway 
 Bank i\ McElrath. 13 N. .T. Eq. 24. The reasoning of the text cannot pre- 
 vail here, as the sealing is in this conntry generally necessary to the validity 
 of the instrument. Lewis on Stock, Bonds. &c., 53. 
 
 ^' Earringtou v. Bank of W^ashiugtou, 14 S. & R. (Pa.) 405; Smith r. Weld, 
 2 Pa. St. 54. 
 
 76
 
 ALTERATIONS BY A STRANGER. * 32 
 
 "Where a bond was several, the cancellation by the *ob- [ * 31 ] 
 ligees of the seal of one obligor rendered it void as to 
 him alone: Collins v. Prosser, IB. & C. 682; S. C. 3 Dow. &Ky. 
 112. But where the bond was joint and several, the cancellation 
 of the seal of one obligor was held to render it void as to all ; 
 Seaton v. Henson, 2 Show. K. B. Rep. (Leach's ed. ) 29; S. C. 2 
 Lev. 220. 
 
 Material alterations made by a stranger. — There is* con- 
 siderable difference of opinion as to the effect of a material altera- 
 tion made by a stranger, i. c, a person who is not a party to the 
 deed. 
 
 On the one hand, according to Davidson v. Cooper, 11 M. & 
 W. 778; S. C. 13 M. & W. 343; The Bank of Hindostan v. Smith, 
 36 L. J. :N. S., C. p., 241; Taylor on Evidence, s. 1829 (7th ed.), 
 the rule should be extended to material alterations made by a 
 stranger; and Stephen, J., considers that the rule extends to 
 alterations made by a stranger, with the qualification that the 
 alterations must have been made while the deed was in the cus- 
 tody or possession or under the control of the party seeking to 
 enforce it; but he disapproves of such extension: Dig. Ev. Pref. 
 (3rd ed. ), p. xxxvi. He gives the rule thus (Steph. Dig. Ev. 
 Art. 89 : — " No person producing any document, which upon 
 its face appears to have been altered in a material part, can claim 
 under it the enforcement of any right created by it, unless the 
 alteration was made before the completion of the document, or 
 with the consent of the party to be charged under it, or his repre- 
 sentative in interest. . . . This rule extends to cases in which 
 the alteration was made by a stranger, whilst the document was 
 in the custody of the person producing it, but without his 
 knowledge or leave." 
 
 On the other hand. Lord St. Leonards (Sugd. Pow. 603, 8th 
 ed.) considers that alterations made by a stranger do not vitiate 
 the deed, saying that the true ground of the rule is the fraud of 
 the party interested; and he cites Hen free v. Bromley, 6 
 East, 310, which was * a case of the alteration, not of a [ * 32 ] 
 deed, but of an award by the umpire after his authority 
 had expired; and in which Lord Ellenborough, C.J., said: " The 
 alteration made by him [the umpire] afterwards was no more 
 than a mere spoliation by a stranger, which would not vacate the 
 award. ... I can no more consider this as avoiding the instru- 
 ment than if it had been obliterated or cancelled by accident." 
 
 " It is difficult to understand why an alteration by a stranger 
 should in any case avoid the deed— why the tortious act of a 
 third person should affect the rights of the parties to it — unless 
 the alteration goes the length of making it doubtful what the 
 
 77
 
 * 33 IMMATERIAL ALTERATIONS. 
 
 deed originally was, and what the parties meant;" Hutchins v. 
 Scoff, 2 M. & W. 809, per Alderson, B., at p. 814 
 
 It may be added that in America it has been held that the act 
 of a stranger will not vitiate a deed; Reesv. Ocerbaiigh, 6 Cowen, 
 740; see Lewis v. Paijn, 8 Cowen, at p. 73.'- 
 
 Rule 6. — Immaterial alterations. — An immaterial alteration 
 made in a deed after execution does not vitiate- it, by whomso- 
 ever such alteration is made.'^ 
 
 Observation. — An alteration is considered immaterial where 
 it only expresses something which would have been implied as 
 the deed stood before the alteration;" Sanderson v. Symonds, 1 
 Brod. & B. 426; and see the cases collected in Aldoiis v. Corn- 
 well, L. R. 3 Q. B. 573; S. C. 9 B. & S. 607. 
 
 Examples. — An alteration made by the covenantee for the 
 benelit of the covenantor held to be immaterial: Darcy & Sharpe's 
 Case, 1 Leon. 282; but see Keilw. 162, pi. 2; 164, pi. 7. 
 
 A deed under s. 192 of the Bankruptcy Act, 1861, was ex- 
 pressed to be made between the debtor and certain 
 [ * 33 ] * persons named in the schedule as creditors, and all 
 other the creditors of the debtor, and was executed by a 
 
 ^^ Spoliation does not vitiate a deed, Avhen the original meaning can be 
 ascertained. Croft r. White, 36 Miss. 455; Bridget-. Winter, 42 I\Iiss. 135; 
 Nichols )'. Johnson, 10 Conn. 192; Barringtnn r. Bank of Washington, 14 S. 
 & R. (Pa.) 405; Klioads v. Frederick, 8 Watts (Pa.), 448; Robertson r. Ilav, 
 91 Pa. St. 242; Medlin r. Platte Co., 8 Mo. 235: Lee v. Alexander, 9 B. Mon. 
 (Kv.) 25; States. Berg, 50 Ind. 498; John v. Hatfield, 84 Ind. 75; Wright 
 r. "Wright, 2 Halst. (N. J.) 175; Evans v. Williamson, 79 X. C. 86. But 
 where the alteration is made with the permission of the grantee or obligee, 
 it is no longer an act of .spoliation; it becomes the act of the party, and, if 
 material, avoids the deed. Dover r. Robinson, 04 Mo. 183. 
 
 13 Peqnawket Bridge v. :Mathers, 8 N. H. 139; Born ham r. Aver, 35 N. H. 
 351: Crawford v. Dexter, 5 Sawv. C. C. 201; Pardee v. Lindley. 31 III. 174; 
 McKibl)en v. Xewell, 41 111. 46i; Langdon v. Paul, 20 Yt. 217; Hale i: Ru.ss, 
 1 Greenleaf (Me.), 334; Dunn v. Clements, 7 Jones (X. C), 58; Rowley r. 
 Jewett, 56 Iowa. 492: Turner r. Billagram, 2 Cal. .523; Gardiner v. Sisk. 3 
 Pa. St. 326; Burkholder v. Lapp, 31 Pa. St. 322; Robertson v. Hav, 91 Pa. 
 St. 242. 
 
 In the following cases immaterial alterations made subsequently to exe- 
 cution bv the grantee or obligee were held to avoid the deed: IMorris v. Van- 
 daren, I'Dall. (Pa.) 67; Smith v. Weld, 2 Pa. St. 54; Lewis r. Payn, 8 Cow. 
 (X. Y.) 71: Wright v. Wright, 2 Halst. (X. J.) 175; Limestone Bank r. Pen- 
 ick, 57 B. Mon. Vvy-) 31. 
 
 " Alterations are immaterial which do do not change the legal sense or 
 effect of the instrument aftecting neither the rights nor interests, duties 
 nor obligations of either of the parties. Gardinier v. -Sisk, 3 Pa. St. 326; 
 Robertson v. Hav, 91 Pa. St. 242; Keen v. Monroe, 75 Va. 424; Com. r. Emi- 
 grant's Bank, 98 Mass. 12; Birdsall v. Paul, 20 Yt. 217; Western Bldg. Ass. 
 V. Fitzmorris, 7 Mo. App. 283; Gordon v. Sizer, 39 Mis.s. 818; Cole r. Hills. 
 44 X. H. 232; State v. Berg, 50 Ind. 496; Crawford v. Dexter, 5 Sawy. C. C. 
 201. 
 
 78
 
 FRAUDULENT ALTERATIONS. * 34 
 
 majority in number, representing three- fonrtlis in valneof his cred- 
 itors and was then registered: after registration, the names of 
 two additional creditors were added to the schedule: — Held, that 
 the alteration was not material, and that, as before registration 
 the necessary number of creditors had executed, the insertion of 
 the names of the two creditors did not aft'ect the validity of the 
 deed; Wood v. Slack, L. 11. 3 Q. B. 379. Bond conditioned for 
 payment of £100 by six equal payments of £10 13s. 4(/. on the 
 13th of October in every year " until the full sum of one pounds" 
 was paid. A stranger inserted the word " hundred " after one. 
 Held, that the alteration was immaterial, as the word "hundred" 
 did not alter the sense, and therefore did not destroy the bond; 
 Waugli V. Bnssell, 5 Taunt. 707. 
 
 After a deed had been executed, one of the parties drew his 
 pen through his own and another party's signatures; it was ad- 
 mitted that the erasure was made wilfully, and under the impres- 
 sion that it might influence claims to be made dehors the deed, 
 but no fraud was intended; the deed contained no grant or cove- 
 nant by the parties whose signatures were thus erased, and im- 
 posed no liability on them; they were simply covenantees. It 
 was held that the erasure was immaterial, and did not avoid the 
 deed ; Caldicell v. Parker, Ir. R. 3 Eq. 510 ; disapproved of in 
 Suffell V. Bank of England, Q. B. D. 555. 
 
 As to filling up of blanks after execution, see ante, p. 26 et 
 seq. 
 
 Observation. — Old laiv as to immaterial alterations. — It was 
 formerly held that even an immaterial alteration made by or with 
 the consent of the person for whose benefit it was intended, would 
 render an instrument void; PigoVs Case, 11 Rep. 26 b; S. C, 2 
 Bulstr. 246; Shep. Touch. 68, 69: but this is no longer law; 
 Aldous V. Cormcell, L. R. 3 Q. B. 573; S. C. 9 B. & 8.607; 37 
 L. J. Q. B. 201. 
 
 Fraudulent alterations. — " If the alteration be fraudulently 
 made by the party claiming under the instrument, it 
 does not seem impoi'tant whether it * be in a material or [ * 34] 
 an immaterial part; for, in either case, he has brought 
 himself under the operation of the rule established for the pre- 
 vention of malpractices; and having fraudulently destroyed the 
 identity of the instrument, he must incur the peril of all the con- 
 sequences:" Taylor, Ev. s. 1830 (7th ed. ), citing Sanderson, v. 
 Symonds, 1 Brod. 8l B. 426; the American case of Adams v. Fnje, 
 3 Mete. 103; and other cases. '^ 
 
 '■• Turner v. r,illin;ih;im. 2 Cal. .'">23; Bliss v. Mclntyre, 18 Vt. 46(i; Woods 
 V. Hildcbruiid, 1(J Neb. •M\\ Letclier ;;. Bates, G J. J. Marsh (Kv.), TyJl. But 
 
 to'
 
 * 35 ALTERATION BY ACCIDENT OR MISTAKE. 
 
 Rule 7. — An alteratioD or cancellation made in a deed by acci- 
 dent or mistake does not afPect it. 
 
 This was not formerly law; Shep. Touch. 69. 
 
 Examples. — Where the seals were eaten by rats and mice: 
 Baijlij V. Garford, March, 125; where the seal was pulled off by 
 a little boy: Anon., Latch, 220; S. C, Palmer, 408; the deeds 
 were allowed to be given in evidence."^ 
 
 "If the absence of intention to cancel be shown, the thing is 
 not cancelled ;" per Maule, J., Bamberger v. The Commercial 
 Credit, 15 C. B. 093; Perrott v. Perroft, 14 East, 423. 
 
 " I can no more consider this as avoiding the instrument than 
 if it had been obliterated or cancelled by accident;" per Lord 
 EUenborough, C.J., Henfree v. Bromley, East, 309. 
 
 Mr. Taylor (Ev. s. 1828, 7th ed. ) seems to consider that a deed 
 would still be vitiated even by an accidental alteration, or one 
 made by mistake, provided in either case the deed, when so 
 altered, was in the custody of the party seeking to enforce it: he 
 cites Davidson v. Cooper, "ll M. & W. 778; 13 M. & W. 343; but 
 see Nichols v. Haywood, Dyer, 59, and Master v. Miller, 4 T. K., 
 at p. 339, where Buller, J., says: "It is not uaiversally true that 
 a deed is destroyed by an alteration, or by tearing off the 
 [ * 35 ] seal. ... In any case where the seal is * torn ofl' by ac- 
 cident after plea pleaded, the deed is held good (see 1 
 Roll. Rep. 40; Michael v. Scockivith, Cro. Eliz. 120); . . . and in 
 these days, I think even if the seals were torn oflf before the 
 action brought, there would be no difficulty in framing a declara- 
 tion which would obviate every doubt upon that point, by stating 
 the truth of the case. . . . The difficulty which arose in the old 
 cases depended very much on the technical forms of pleading ap- 
 plicable to deeds alone." 
 
 " It is a question of evidence whether a deed is cancelled 
 animo cancellandi: per" Lord Abinger, C. B., Alsager \. Close, 
 10 M. & W. 581 ; and see pp. 583, 584, ' Production of a deed 
 with the seal torn off is primCi facie evidence of cancellation.' " 
 
 in ^roge r. Heidon, 30 Miss. 120, the rule was confined to material altera- 
 tions, on the ground that the motive of an act cannot be inquired into, un- 
 less the rights of parties are materially ixiiecteA. 
 ■ ""' See cases in note V2, these being properly cases of spoliation. 
 
 80
 
 EXPRESSED INTENTIONS. * 36 
 
 ♦CHAPTER III. [ * 36] 
 
 EXPRESSED INTENTIONS. 
 
 Expressed Intentions only regarded : General Purpose effected not- 
 icithsianding ineptitude of Form used : Instruments construed 
 as Covenants to stand seised, Grants, Releases, Bargains and 
 Sales, Feoffments, Leases, and Appointments. 
 
 Rule 8. — Expressed intentions. — To interpret a deed, we must 
 discover the expressed intention of the parties.'^ 
 
 Explanatory Observation. — Intention. — The word "inten- 
 tion " may be understood in two senses, as descriptive of, either 
 (1) that which the parties intended to do, or (2) of the meaning 
 of the words that they have employed; here it is used in the lat- 
 ter sense. '^ See the remarks of Lord Wensleydale: Abbott v. 
 
 " Thomas v. Hatch, 3 Surnn. 170; Moore v. Griffin, 22 Mo. 350; Deering v. 
 Long wharf, 25 Me. 51; Pike v. Monroe, 36 Mo. 309; Belly. Woodward, 46 
 N. H. 337; Mills v. Catlin, 22 Vt. 98; Collins v. Lavelle, 44 Vt. 230; Litch- 
 field V. Cudworth, 15 Pick. 23: Frost v. Spalding, 19 Pick. 445; Bent v. 
 Rogers, 137 Mass. 192; Brvan v. Bradley, 16 Conn. 475; Jackson r. Meyers, 
 3 Johns. 388; S. C. 3 Am. Dec. 504; Jackson?'. Blodgett, 16 Johns. 172; 
 Waterman v. Andrews, 14 R. I. 589; Wager v. Wager, 1 S. & R. (I'a.) 374; 
 Means v. Presb. Church, 3 W. & S. (Pa.) 312; Tyler v. Moore, 42 Pa. St. 3S7; 
 Hnss V. Stephens, 51 Pa. St. 282; Phillips' Est., 93 Pa. St. .50; Barnes v. Hay- 
 bargen, 8 Jones (N. C), 76; Jennings v. Brigladine, 41 Mo. 332; Waffle v. 
 Scarborough, 2 Ohio St. 361; Bramao v. Mesick, 10 Cal. 95; Mulford v. La- 
 France, 26 Cal. 88. "The only rule of much value is to place ourselves as 
 near as possible in the seats which were occupied by the parties at the time 
 the instruiiH^nt was executed ; then taking it by its four comers, read it." 
 Walsh r. Mill, 38 Cal. 487. 
 
 "* A deed must be interpreted according to the force of the language used 
 by the grantor and the ajjparent intention deducible tlierefrom. Tlionias r. 
 Hatch, 3 Sunm. 176. " In the construction the expressed will of the ])artics 
 is to control." Jennings r. Brigladine, 44 Mo. 332; Pike v. Monioo, 3() Mo. 
 309; Moore v. Griffin, 22 Me. 350; Mills r. Catlin, 22 Vt. 98; Benedict v. 
 Gaylord, 11 Conn. 332; Wolfe v. Scarborough, 2 Ohio St. .361; Mulford v. 
 LaFrance, 26 Cal. 88. "If the language clearly indicates the intention of 
 the paities that intention Avill stand, notwithstanding the law may i)r(>vent 
 its being carried inloelfect." Dceringv. Longwbarf, 25 Me. 62. The ell'cct ol 
 a deed must be the effect of its language. An expressed motive of the 
 grantor cannot control it. Manzy v. Manzy, 79 Va. 527. 
 
 6 fNTKUI'UETATION OK DKICD.S. 81
 
 * ?i~ EXPRESSED INTENTIONS. 
 
 Middleton, 7 H. L. C. at p. 114; Grey v, Pearson, 6 H. L. C. 106. 
 The rule is clearly enunciated by Byles, J., in Hayne v. Cum- 
 mings, 16 C. B. N. S. 427. 
 
 In other words, the question always is, "What is the meaning 
 of what the parties have said?" not, "What did the parties mean . 
 to say ?" The latter question is one which the law does not per- 
 mit to be asked; it being a presumption J^«'^■s et de jure, lo rebut 
 which no evidence is allowed, that the parties intended to say 
 that which they have said. 
 
 " As far as it may stand with the rule of law, it is honourable 
 for all judges to judge according to the intention of the parties, 
 
 and so they ought to do;" Co. Litt. 314b. 
 [ * 37 ] *" The question in this, and other cases of construction 
 of written instruments is, not what was the intention of 
 the parties, but what is the meaning of the words they have 
 used;" per Lord Denman, C. J., Rickman v. Carstairs, 5 B. & 
 Ad. 663." 
 
 " The question is not what the parties to a deed may have in- 
 tended to do by entering into that deed, but what is the meaning 
 of the words used in that deed: a most important distinction in 
 all classes of construction, and the disregard of which often leads 
 to erroneous conclusions;" per Lord Wensleydale, Monypenny n. 
 Monypenny, 9 H. L.-C. 146. 
 
 " I am disposed to follow the rule of construction which was 
 laid down by Lord Denman and Baron Parke. . . .They said 
 that in construing instruments you must have regard, not to the 
 presumed intention of the parties, but to the meaning of the 
 words which they have used;" per Brett, L. J., Ex parte Chick. 
 Re Meredith, 11 Ch. D. 739. 
 
 "One must consider the meaning of the words used, not what 
 one may guess to be the intention of the parties; " per Jessel, M. 
 K., Smith V. Lucas, 18 Ch. D. 542. 
 
 In Throckmerton v. Tracy, 1 Plowd. 160, the following rules 
 were laid down by Staunford, J., for interpreting deeds: "First, 
 that deeds shall be taken most beneficially for the party to whom 
 they are made (see rule 21); secondly, that a deed shall never be 
 void, where the words may be applied to any intent to make it 
 good (see rule 16); and upon this he cited Bracton, who saith, 
 '■Benigne faciendm sunt interpretaiiones instrumenti, ut res magis 
 valeat quam pereat,^^^ and in another place he saith, Hn re dubid;' 
 thirdly, that the words shall be construed according to the intent 
 
 '* A deed should be construed as intended to have some effect. It will 
 not be intended that the parties meant it to be a nullity, and a construction 
 making it operative will be preferred to one rendering it void. Abbott v. 
 Holway, 72 Me. 298; Gans v. Aldridge, 27 Ind. 292; Hoffman v. Mackall, 5 
 Ohio St. 124; Anderson v. Baughman, 7 Mich. 69; Eiggin v. Love, 72 111. 
 656; Dismukes v. Parrott. 56 Ga. 513. 
 
 82
 
 EXPRESSED INTENTIONS. * 39 
 
 of the parties, and not otherwise; and here he cited what Bracton 
 saith, ' Caria non est nisi vesfimentimi donationis,'' and the intent 
 directs gifts more than the words." 
 
 In Smith v. Packliurst, 3 Atk. 136; S. C. sub nom. Parkhurst 
 V. Smitlu Willes, 327, Willes, C. J., says, in delivering the unani- 
 mous opinion of the Judges to the House of Lords: "I 
 shall lay down some general rules and maxims * of the [ * 38 J 
 law, with respect to the construction of deeds. First, it 
 is a maxim, that such a construction ought to be made of deeds, 
 ut res magis valeat quam pereat, that the end and design of the 
 deeds should take effect rather than the contrary (see rule 9). 
 Another maxim is, ' that such a construction should be made of 
 the words in a deed, as is made most agreeable to the intention 
 of the grantor; the words are not the principal things in a deed, 
 but the intent and design of the grantor; we have no power in- 
 deed to alter the words or to insert words which are not in the 
 deed, but we may and ought to construe the words in a manner 
 the most agreeable to the meaning of the grantor, and may re- 
 ject any words that are merely insensible.' " 
 
 Technical ivords. — In the great case of Chohnondeley v. Clinton, 
 (2 Ja. & W. 91), Plumer, M. R., says: " The real intention of the 
 framer of the deed, the written declaration of whose mind it is 
 always considered to be, is the end and object to the discovery 
 and effectuating of which all the rules of construction, properly 
 so called, are uniformly directed. When technical M^ords or 
 phrases are made use of, the strong presumption is, that the 
 party intended to use them according to their correct technical 
 meaning (see p. 48); but this is not conclusive evidence that such 
 was his real meaning. If the technical meaning is found, in the 
 particular case, to be an erroneous guide to the real one, leading 
 to a meaning contrary to what the party intended to convey by 
 it, it ceases to answer its purpose. The deed may be drawn in- 
 artificially, from ignorance or inadvertence, or other causes; but 
 still, if there is enough clearly to convey information as to the 
 real meaning, the object is attained. The mind is with certainty 
 discovered, and being known, must be the guide, or the act and 
 deed would not be the act and deed of the party, but of the court. 
 Because the words, which are the signs of the ideas of the 
 persons using them, are in general, and in the correct use of 
 them, the signs of ideas different from those of which in the par- 
 ticular case, they are found less technically and correctly, but 
 with equal certainty, to be the signs; can it follow that 
 they are to be construed, to represent the ideas * of which [ * 39 ] 
 they are known not to be the signs, in preference to those 
 of which they appear to be the signs y Where is the authority 
 that compels the court to go this length in its adherence to tech- 
 nical meaning? The contrary has been long and universally es- 
 tablished to be the rule by the highest authorities from the ear- 
 
 83
 
 * 40 EXPRESSED INTENTIONS. 
 
 liest period, without a single one to the contrary. Many cases 
 may doubtless be found, in which technical meaning has been al- 
 lowed to prevail notwithstanding some appearance of a contrary 
 intent; but this has been where the manifestation of intent was 
 not deemed sufficient to get over the presumption in favour of 
 leo-al construction. The paramount regard to be had, in a case 
 circumstanced as the present, to the meaning and intention of 
 the grantor, in preference to technical meaning, is the settled 
 rule of construction. If the subject of the instrument, on which 
 the question arises, be one that is not matter of law (over which 
 intention has no control), but depends wholly on the will and act 
 of the party, such as the appointment by a donor in a deed of 
 gift of his own donee; if the words to be construed are not words 
 of limitation (in which a stricter attention to forms may be re- 
 quired, especially in deeds), but words of purchase and descrip- 
 tion made use of to designate the person of the first taker; in 
 such case, if the meaning and intention of the grantor be clearly 
 manifested on the face of the instrument, as to the person or 
 character intended to be the object of grant, and if the words 
 that he has made use of to convey his meaning will admit of an 
 interpretation conformable to it, though contrary to their correct 
 technical sense, there is no case or dictum to be found which re- 
 quires the court to adopt the technical sense in opposition to the 
 actual meaninsr of the party; on the contrary, the authorities 
 uniformly demand the preference to be given to intent, over tech- 
 nical import and form.""" 
 
 " It is a good rule of construction that deeds should be con- 
 strued so as to give effect to the intention of the parties;" per 
 Abbott, C. J., Evans v. Vaughan, 4 B. & C. 2G6; and per Pearson, 
 
 J., Hilhers v. Parkinson, 25 Ch. D. 203. 
 [ * 40 ] * " I adopt the observations of C. B. Alexander, in 
 
 Colmore v. TyndaU(2 Younge & J. 622), that this Court 
 deals with a deed according to the clear intention of the parties 
 appearing in the four corners of the deed itself. If the Court 
 sees an intention clearly and distinctly established by it, it has no 
 difiiculty in carrying that into effect, subject of course to any 
 rules of law that may be applicable to it, but only qualified to 
 that extent; " per- Sir J. Romilly, M. R., Beaumont v. Marq. of 
 Salisbury, 19 Beav. 206. 
 
 In Clayton v. Glengall (1 Dr. & W. 14), Lord St. Leonards 
 says : " It is quite true, I am not to conjecture or guess at what 
 might have been the intention of the parties; but I am to con- 
 
 ■■"* The intent, when apparent and not repugnant to any rule ot law, will 
 control technical terms, for the intent, and not the words, is the essence of 
 every agreement. In the exposition of deeds, the construction must be upon 
 the view and comparison of the whole instrument and with an endeavor to 
 give every part of it meaning and effect. Kent, C. J., in Jackson v. Myers, 
 3 Johns. 395; Collins ;;. Lavelle, 44 Vt. 2.30; Central Pac. R. Co. v. Beal, 47 
 Cal. 151. 
 
 84
 
 DEED NOT TAKING EFFECT AS INTENDED. * 41 
 
 sider the whole instriTment, and if there appear a plain intention 
 to give interest, then, though there should be no express words 
 to that effect, and this is the case of a deed, yet I am bound to 
 give it that construction." 
 
 " The rule of construction is to adhere as rigidly as possible 
 to the express words;" per Lord Cranworth, C, Grey v. Pearson 
 6 H. L. C. 78. 
 
 Rule 9. — Deeds failing to take effect in manner intended. — If, 
 owing to some rule of law, a deed fail to take efPect in the man- 
 ner intended, it will, if possible, be construed so as to take efPeet 
 in some other manner which will carry the expressed general in- 
 tention of the parties into efPect.^' 
 
 " The rules laid down in respect of the construction of deeds 
 are founded in law, reason, and common sense; that they shall 
 operate according to the intention of the parties, if by law they 
 may; and if they cannot operate in one form, they shall operate 
 in that which by law will effectuate the intention;" per Lord 
 Mansfield, C. J., Goodtitled. Edwards v. Bailey, 2 Cowp. 600. See 
 to the same effect, per Dallas, C. J., Solly v. Forbes, 4 Moo. 4G3. 
 
 "A deed that is intended and made to one purpose may enure 
 to another, for if it will not take effect in the way 
 * it is intended, it may take effect another way, provided [ * 41 ] 
 it may have that effect consistently with the intention of 
 the parties. And therefore a deed made and intended for a re- 
 lease, may amount to a grant of a reversion, an attornment, or a 
 surrender, or h converso ; Shep. Touch. 82. See also the notes to 
 Chester v. Willan, 2 Wms. Saund. 96a. 
 
 Examples. — Deeds construed as covenant to stand seised. — 
 Deeds of the natures following, not taking effect in the manner 
 in which they were intended, have, where there was relationship 
 between the parties, taken effect as covenants to stand seised: — 
 A deed of feoffment without livery; Walker v. Hall, 2 Lev. 213; 
 Thompson v. Attfeild, 1 Vera. 40: and even where the feoffee to 
 
 ^' .Jackson v. Blodget, 16 Johns. 178; Mills v. Catlin, 22 Vt. 9ft; Barnes v. 
 Haybarger, 8 Jones (N.C.), 76; .Johnstown Iron Co. r. Cambria Iron Co., 32 
 Pa. St. 241; Lewis f. Brewster, 67 Pa. St. 410; Ecknian v. Ecknian, 68 Pa. 
 St. 460; Am. notes to Roe v. Tranmarr, 2Sni. Lead. Cas. (8th Am. Ed.) .^34. 
 
 Deeds failing of effect as releases or feoffments have been held valid as 
 bargains and sales. Conim. v. Manifee, 2 A. K. Marsh (Ky.), .'")!)6; I'niy r. 
 Pierce, 7 Mass. 381; Jackson r. Fi.sh, 10 Johns. 456; Rogers?'. Eagl(> Fire 
 Ins. Co., 9 Wend. (X. Y. ) 61L And deeds inoperative as bargains and sales 
 or feoffments have been construed as releases. Carroll v. Norwood, 1 If. & 
 J. (Md.) 167. Or covenants to .stand seised to uses. Brewer t). Hardy, 22 Pick. 
 376; J'.ell v. Scammon, 15 N. H. 381; McDaniel r. Johns, 45 Mi.ss. 632; Lam- 
 berts. Smith, '.) Oregon, ]H5. 
 
 A deed intended to Ije in the nature of a testamentary disposition, but in- 
 effectual as a will because wanting the necessary formalities, was given 
 effect as a conveyance in liryan r. Bradley, 16 Conn. 474. 
 
 85
 
 * 42 DEED NOT TAKING EFFECT AS INTENDED. 
 
 uses was not a relation, though the cestui que use was; Thome v. 
 Thome, 1 Vera. 141, (see the bill at length, 2 M. & W. 512, note); 
 Hove V. Dix, 1 Sid. 25; cit. 2 M. & W. 507, is contra, but is over- 
 ruled, 2 Wils. 79; Sleigh v. Metham, Lutw. 242, (Nelson's ed.); 
 Doe d. Lewis v. Davies, 2 M. & W. 503: a deed poll professing to 
 grant an estate of freehold commencing infuturo; Doe d. Star- 
 limj V. Prince, 20 L. J. N. S. C. P. 223; Rigden v. Vallier, 2 Ves. 
 Sen. 253: a release founded on lease for a year, but void as 
 creating a freehold to commence infuturo; Roe d. Wilkinson v. 
 Tranmer, 2 Wils, 75; S. C. Willes, 682: a deed of grant; Osman 
 v Sheaf e, 3 Lev. 370: S. C. sub nom. Osmere v. Sheafe, Carth. 
 307; Doe d. Daniell v. Woodroffe, 10 M. & W. 608; affd. 15 M. 
 & W. 769; 2 H. L. C. 811; Harrison v. Austin, Carth. 38; Sanders 
 V. Savile, cited 3 Lev. 372; Doe d. Starling v. Prince, 20 L. J. N. 
 S. C. P. 223: a covenant "that he giveth and settleth;" Doe d. 
 Jones V. Williams, 5 B. & Ad. 783: "that if he die without issue, 
 he does give and grant;" Coltman v. Senhouse, 2 Lev. 225; S. 
 C, T. Jones, 105: a bargain and sale void for want of a pecuni- 
 ary consideration; Crossing v. Scudamore, 2 Lev. 9; S. C. 1 Mod. 
 175; 1 Vent. 137; {sub nom. Crossing v. Skidmore, 2 Keb. 754, 
 784;) Baker v. Lade, 3 Lev. 291; S. C. (sub nom. Baker v. Lade), 
 4 Mod. 150; 2 Vent. 149; Carth. 253; {sub nom. Baker v. Lane), 
 
 Skin. 315; Watsv. Dix, Sty. 204; Tebbev. Poppleivell, 2 
 [*42 ] Roll. Ab. 706, pi. (1): *a release founded on a lease for 
 
 a year that was lost; Broivn v. Jones, 1 Atk. App. 191: 
 a surrender void by reason of an intervening estate; Doe d.Wool- 
 ley V. Pickard, per Lord Kenyon, cited 1 Wms. Saund. 236f, 
 (note): a conveyance made in consideration of an intended mar- 
 riao-e, which could not operate as a bargain and sale, because 
 there was no pecuniary consideration, nor as a release because 
 there was no lease for a year, nor as a confirmation, because 
 neither of the grantees was in possession, nor as a feoffment, be- 
 cause, there was no livery; Doe d. Milbourne y. Salkeld, Willes, 
 674; S. C. sub nom. Doe v. Purchasers under Assignees of Simp- 
 son, 2 Wils. 22. 
 
 As grant at common law. — Deeds of the natures following, not 
 taking effect in the manner in which they were intended, have 
 taken effect as grants at common law: — A grant of a reversion 
 has been effected by a deed of feoffment which could not operate 
 as a feoffment for want of livery; 2 Roll. Ab. 56, pi. 1; Knotsford 
 V. Edes, Ibid., pi. 2; Lucy v. Englefield, Ibid., pi. 3; Doe d. Were 
 V. Cole, 7 B. &"C. 243; S. C. 1 Man. & Ry. 33: by a bargain and 
 sale void for want of enrolment; Adams y. Steer, Cro. Jac. 210; 
 Nash V. Ash, 1 Hurl. & Colt. 160: by a bargain and sale enrolled 
 but incapable of carrying out the intention of the parties by rea- 
 son of the non-execution of the uses declared thereby; Haggers- 
 ton V. Hanbury, 5 B. & C. 101 ; S. C. 7 D. & R. 723, over-ruling 
 Denton v. Fettiplaces, case cit. Cro. Jac. 210: by a release void as 
 86
 
 • DEED NOT TAKING EFFECT AS INTENDED. * 44 
 
 creating a freehold in futuro; Goodtitle d. Edwards v. Bailey, 2 
 Cowp. (300: by an appointment void by reason of the non-exist- 
 ence of the power; Shove v. Pincke, 5 T. R. 124; and see Perry 
 V. Watts, 3 Man. and Gr. 775. 
 
 U'here the donee of a power of appointment " limited and ap- 
 2)oi)ited " by deed, not only the lands the subject of the power, 
 but also other lands, it was hold that the words " Umii and ap- 
 poinf'' operated as a grant of the latter lands; Macandreio v. 
 Gallagher, Ir. R. 8 Eq. 490. 
 
 A grant of an easement or profit d prendre may be effected by 
 articles of agreement under seal; Holms v. Seller, 3 Lev. 
 305: or by a covenant; Lord Mountjoye's * Case, Moo. 174 [ * 43 ] 
 Godb. 17; see cases cited, Tud. L. C. R. P. 170; Northam 
 v. Hurley, 1 E. & B. 665. 
 
 As release. — A release has been effected by a deed which could 
 not take effect as a feoffment for want of livery, the want of livery 
 being supplied by the possession of a tenant; Reesd. Chamberlain 
 V. Lloyd, Wightw. 123: by a grant by one joint tenant to another; 
 Chester v. Willan, 2 Wms. Saund. 96a; by a grant that the 
 obligor should not be sued by force of his bond; 21 H. 7, 23b; S. 
 C. Bro. Ab. tit. Barre. 52; see Plow. 156. 
 
 A father by indenture enrolled, in consideration of his natural 
 affection to his son, bargained and sold, gave, granted, and con- 
 firmed the land to him and his heirs. Held that as the son was 
 in possession it might operate by way of confirmation; Osborn v. 
 Churchman, Cro. Jac. 127. 
 
 As bargain and sale. — " In case when a freehold or inheritance 
 shall pass by deed indented and enrolled, it need not have the 
 precise words of bargain and sale, but words equipollent or 
 which do tantamount, are sufficient; as if a man covenants in 
 consideration of money to stand seised to the use of his son in 
 fee; if the deed be enrolled, it is a good bargain and sale, and 
 yet there are not auy words of bargain and sale, but they amount 
 to so much, as it is held in BedeCs Case (7 Rep. 40b). So if a 
 man for money aliens and grants land to one and his heirs, or in 
 tail, or for life, by deed indented and enrolled, it amounts to a 
 bargain and sale, and the land shall pass without any livery and 
 seisin; Fox^s Case, 8 Rep. 94a; see also Taylor v. Vale, Cro. 
 Eliz. 166, where the words are '■*■ dedit et concessit." 
 
 Where A. by deed indented conveyed as follows: "I the said 
 A. have given, granted, and confirmed for a certain piece of 
 money," without any words, "bargain and sell," the habendum 
 was to the feoffee with warranty against A. and his heirs, and 
 there was a letter of attorney to make livery of seisin. The deed 
 was enrolled within one month after it was made, subsequently 
 the attorney made livery. Held that it operated as a bargain 
 and sale; Anon. 3 Leon. 16. 
 
 * As feoffment. — Charter of feoffment containing [ * 44 ] 
 
 87
 
 * 45 DEED NOT TAKING EFFECT AS INTENDED. 
 
 words of bargain and sale only, followed by livery, operated as a 
 feoffment; Benicombe and Parker'' s Case, 1 Leon. 25. 
 
 As uses of fine. — The uses of a tine may be declared by a bar- 
 gain and sale not enrolled, or a feoffment without livery; Jones 
 V. Morley, 1 Ld. Ray. 291. 
 
 As assignment. — Covenant to transfer a specific part of a sum 
 of money on mortgage within three months after death and to pay 
 interest in the meantime, operated as an assignment: Broivnloio 
 V. Earl of Meaih, 2 Ir. Eq. Rep. 383; S. C. 2 Dr. & Wal. 6/4. 
 See post, 408. 
 
 As lease. — " Albeit the most usual and proper mode of making 
 of a lease is by the words, demise, grant, and to farm let, and 
 with an habendum for life or years, yet a lease may be made by 
 other words; for whatsoever word will amount to a grant will 
 amount to a lease. And therefore a lease may be made by the 
 word, give, betake, or the like. The word locavit [hired] also is 
 a good word. And the use in the Exchequer is to make leases 
 by the word committimns, which is a good word to make a lease. 
 And if A. do but grant and covenant with B. that B. shall enjoy 
 such a piece of land for twenty years, this is a good lease for 
 twenty years. So if A. promise to B. to suffer him to enjoy such 
 a piece of land for twenty years; this is a good lease for twenty 
 years. So if A. license B. to enjoy such a piece of land for 
 twenty years; this is a good lease for twenty years;" Shep. 
 Touch. 271. 272. 
 
 Accordingly, a lease has been created by a covenant with a man 
 that he should enjoy the land for a certain time: Whitlock v. 
 Horto7i, Cro. Jac. 91; Drake v. Mimday, Cro. Car. 207; S. C. W. 
 Jo. 231; Tisdale v. Essex, Hob. 34; S. C. Moo. 861; Richard v. 
 Selij, 2 Mod. 79; Doe d. Jackson v. Ashburner, 5 T. R. 183: by 
 a mere license to occupy for a certain time; 5 H. 7, 1; Bro. Ab, 
 tit. Lease, 30; Hall v. Seabright, 1 Mod. 14; S. C. 2 Keb. 561; 
 Anon. (Ca. 51); 11 Mod. 42; Right d. Green v. Proctor, 4 Bur. 
 2208: by a covenant to stand seised; Right d. Basset v, 
 [*45 ] Thomas, 3 Bur. 1441, 1446; *S. C. 1 W. Bl. 446: by a 
 covenant to pay rent followed by entry; Copley v. Hep- 
 ivorth, 12 Mod. 1. 
 
 Where a term had become merged in the inheritance, and the 
 owner of the inheritance " granted, bargained, sold, assigned and 
 set over " the premises for the residue of the original term, it was 
 held that there was a resuscitation of the term by the words grant, 
 bargain, and sell as well as assign ; Denn d. Wilkins v. Kemeys, 
 9 East, 366; Cottee v. Richardson, 7 Ex. 143; but Shadwell, V.-C, 
 held a contrary opinion in Laxv v. TJrlwin, 16 Sim. 377 (where 
 the operative word was "assign" only). 
 
 But a lease is not created by a covenant with a man that a 
 stranger shall enjoy land for a certain- term; Littleton and Per- 
 nes^ Case, 1 Leon. 136; Parry v. Allen, Cro. Eliz. 173. 
 88
 
 EXECUTION OF POWER, * 46 
 
 A covenant by the tithe-owner with the land-owner not to take 
 tithes for a certain time, was held not to amount to a lease of 
 them; Breicerv. Hill, 2 Anst. 413. 
 
 The cases as to when an agreement for a lease amounts to a lease 
 are collected in Woodfall, 143; 5 Dav. Prec. See Walsh v. Lons- 
 dale, 21 Ch. D. 9; Allhusen v. Brooking, 2(3 Ch. D. 559. 
 
 The words "grant, bargain, sell, and demise" were held to 
 operate by way of assignment of a term in Beaumont v. Mavq. of 
 Salisbury, 19 Beav. 198; Marshall v. Frank, Gilb. K. 143. 
 
 Powers. — To the same rule may be referred the cases under which 
 deeds, not referring to a power, have operation as an execution of it. 
 
 An instrument, in order to operate as an execution of a power, 
 " must either refer to the power, or to the property subject to the 
 power, or it must affect to deal with some property in general 
 terms, not defining it, iinder sach circumstances that it cannot 
 have effect except upon the property comprised in the power; as 
 for instance where a testator gives all his real estate, having no 
 real estate of his own, but having only a power over real estate;" 
 per Wood, V.-C, Broderick \. Brown, 1 K. & J. 332. The 
 cases on this point will be found in Sugden on Powers,* 201. [ * 46 ] 
 (8th edit.); Farwell on Powers, 146; it is unnecessary to 
 discuss them at length as most of them arise on wills. 
 
 A power of appointment among children has been held to be 
 exercised by a feoffment; Daniel v. Ubley, W. Jo. 137: by a lease 
 and release; Tomlinson v. Dighton, 1 P. Wms. 149: by a recital; 
 Wilson V. Piggott, 2 Ves. Jun. 351, 354a; and see post 144: and a 
 power of jointuring has been held to be exercised by a covenant to 
 stand seised; Stapleton's Case, cited 1 Vent. 228; Lady Hastings^ 
 Case, cited 3 Keb. 511: and by lease and release; Dyer v. Awisfer, 
 cited 1 P. Wms. 165; S. Q. sub nom. Gier\. Ossiter, cited 10 Mod. 
 34; a general power of appointment by a recital; Poulson v. Wel- 
 lington, 2 P. Wms. 533; S. C. 2 Eq. Ca. Ab. 131: by a lease and 
 release; Snape v. Turton, Cro. Car. 472, W. Jones, 392. 
 
 Where the donee of a power has also an interest, and the deed 
 executed by him refers to the power, it operates as an execution 
 of the power; otherwise, it operates on his interest. But where 
 the deed does not refer to the powe^. and cannot take effect on 
 his interest, it will operate as an execution of the power; Sir E. 
 Clbre's Case, 6 Rep. 17b; Colt and Glover v. Bp. of Coventry and 
 Lichfield, Hob. 140, 160; but see Brotvne v. Taylor, Cro. Car. 38; 
 Sugden on Powers, 343 (8th ed.); Farwell, Pow. 211. 
 
 As to deeds operating as disclaimers, see Creice v. Dicken, 4 
 Ves. 97; Nicholson v. Wordswortii, 2SwanBt365; Urchy. Walker, 
 3 My. & Cr. 702; Doe d. Wyatt v. Stagg, 5 Bing. N. C. 564. As 
 to deeds operating as defeasances or releases, see Wilsonw. Brad- 
 dyll, 9 Ex. 718, citing Ailoffe v. Scrimpshire, Carth. 63; and 
 Lacy V. Kinaston, 1 Ld. Raym. 688. 
 
 89
 
 47 PEIMARY MEANING — TECHNICAL WORDS 
 
 [*47] * CHAPTER IV. 
 
 EXTRINSIC EVIDENCE AS TO MEANING OF WORDS. 
 
 Extrinsic Evidence admissible to determine the Primary Mean- 
 ings of the ivords emploijed: Explanation of Primary 
 Meanings : Interpretation of Mercantile Contracts : Techni- 
 cal Words: Practice of Conveyancers : Word defined by Act 
 of Parliament. 
 
 Rule 10. — Words to be taken in primary meanings. — When 
 the words used in a deed are in their primary meanings unam- 
 biguous (a), and when such meanings are not excluded by the 
 context (&), and are sensible with respect to the circumstances of 
 the parties (c) at th-e time of executing the deed, such primary 
 meanings must be taken to be those in which the parties used the 
 words. "^ 
 
 Rule 11. — Extrinsic evidence. — Extrinsic evidence is admis- 
 sible for the purpose of determining the primary meanings of the 
 words employed, and for no other purpose whatsoever."^ 
 
 (a) See CholmoncMey v. Clinton, 2 Mer. 344; S. C. 2 J. & W. 69. Even ab- 
 surd consequences will uot be sufficient to exclude the primary meaning; 
 Laird v. Tobin, 1 Moll. 547; cf. 2 Mer. 343; but see Wallis r. Smith, 21 Ch. 
 D. at p. 257. See, also, per liOrd Bramwell, Hill v. East and West India Dock 
 Co., 9 App. Cas. 464, 465. 
 
 (6) Cholmondeleij v. Clinton, 2 J. & W. 67, 69, 80; Holloway v. Holloway, 
 
 5 Ves. 399; Lloyd v. Lloyd, 2 My. & Cr. 202; Momipenny v. Monypenny, 4 K. 
 
 6 J. 1R2; Hextx. Gill, L. R. 7 Ch. 705; Laird v. Briggs, 19 Ch. D. 34. 
 
 (c) Sidnei/ v. Shellij, 19 Ves. '666; Cholmondeleyw Clinton, 2 Mer. 344; Rart ■ 
 V. Hart, ISCh. D. 692, 693; Tucker v. Linger, 21 Ch. D. 36; Cannon v. Vil- 
 lars, 8 Ch. D. at p. 419; Lu/lis v. Buttery. 3 App. Ca. at p. 578. 
 
 22 Dunn V. Bank of Mobile, 2 Ala. 152; Hutchings v. Dixon, 11 Md. 29; 
 Means v. Presbyterian Church, 3 W. &. S. (Pa.) 312; Huss r. Stephens, 51 
 Fa. St. 282; Jennings v. Brigladiue, 44 Mo. 335. 
 
 2^ The circumstances connected with the transaction and the situation of 
 the parties, may be considered in arriving at their intent. Treat v. Strick- 
 land, 23 Me. 234; Abbott v. Abbott, 53 Me. 356; Adams v. Frothingham, 3 
 Mass. 352; Bradford v. Cressy, 45 Me. 9; United States v. Appleton, 1 Sumn. 
 492; Winnipeseogee Co. v. Perley, 46 N. H. 83; Dunn v. English, 23 N. J. 
 L. 126; Hadden v. Showitz, 15 111. 581; Truitt v. Adams, 66 Cal. 218; Wade 
 V. Dewly, 50 Cal. 376; Hannine v. San Francisco, 17 Fed. Rep. 119. A deed 
 
 90
 
 PRIMARY MEANING TECHNICAL WORDS. * 48 
 
 * Explanatory Observations. — Primarjj meaning. — [ * 48 ] 
 First: By ^'- primarij''' (sometimes called ''"literal") 
 " meani/igr," is intended not the primary etymological meaning, 
 but either (1), the meaning usually affixed to the wo-ds at the 
 time of the execution of the deed, by persons of the class to which 
 the parties belonged; or (2), the meaning in which the words 
 must have been used by the parties, having regard to their cir- 
 cumstances at the time of execution; or (3), the meaning which 
 it can be conclusively shown that the parties were in the habit of 
 affixing to the words. 
 
 Technical icords. — Second : The primary meaning of a techni- 
 cal word in a deed relating to the art or science to which it be- 
 longs, is its technical meaning (post, pp. 57, 62). 
 
 Shore v. Wilson. — These rules were discussed very fully in 
 Shore v. Wilson, 9 CI. & F. 355, where Colleridge, J. (at p. 525), 
 says; "It is unquestionable that the object of all exposition of 
 written instruments must be to ascertain the expressed meaning 
 or. intention of the writer; the expressed meaning being equiva- 
 lent to the intention, and I believe the authorities to be too 
 numerous and clear to make it convenient or necessary to cite 
 them, that, where language is used in a deed which in its primary 
 meaning is unambiguous, and in which that meaning is not ex- 
 cluded by the context (see rule 16), and is sensible with reference 
 to the extrinsic circumstances in which the writer was placed at 
 the time of writing, such primary meaning must be taken, con- 
 clusively, to be that in which the writer used it; such meaning, 
 in that case, conclusively states the writer's intention, and no 
 evidence is receivable to show that in fact the writer used it in 
 any other sense, or had any other intention. This rule, as I state 
 it, requires perhaps two explanatory observations; the first, that 
 if the language be technical or scientific; and it is used in 
 
 must be construed according to the intent and meaning of the parties as 
 manifested by the instrument itself. Parol evidence is not admissible to con- 
 tradict or vary its terms. Yet it is a -vvell-cstablished rule that where the 
 conf.truction of a written instrument is doubtful, the court may look into 
 the surrounding circumstances, and avail itst>lf of such light as they nuxy 
 afford in ascertaining the true meaning of the language and terms employed. 
 Morris C. & B. Co. v. Mathieson, 17 N. J. Eq. :58!). "Although i)ar()l 'evi- 
 dence is not admis.sible to prove that the parties intended something ditfer- 
 ent from that which the written language expressed, or whi(!h may be a 
 legal inference or conclusion lo ])c drawn from it, yet it is always conii)otent 
 to give in evidence exi.sting circumstances such as the actual condition and 
 situation ot the land, . . . and other local ol)jccts, in order to givea dcliuiti; 
 meaning to language used in the deed and to show the sen.se in which par- 
 ticular words were probably u.sed by the parties, especially in matters of de- 
 scription." Bhaw, C. J., iu Salesbury i'. Andrews, 19 Pick. '250. 
 
 91
 
 * 50 PRIxMARY MEANING — TECHNICAL WORDS. 
 
 [ * 49 ] a matter relating * to the art or science to which it be- 
 longs, its technical or scientific must be considered its 
 primary meaning; the second, that by • sensible with reference to 
 the extrinsic circumstances' is not meant that the extrinsic 
 circumstances make it more or less reasonable or probable is (d) 
 what the writer should have intended; it is enough if those cir- 
 cumstances do not exclude it, that is, deprive the words of all 
 reasonable application according to such primary-meaning." 
 
 Unexpressed Intentions. — "This rule thus explained, implies 
 that it is not allowable in the case supposed to adduce any evi- 
 dence, however strong, to prove an unexpressed intention varying 
 from that which the words used import. This may be open no 
 doubt to the remark, that, although we profess to be exploring 
 the intention of the writer, we may be led in many cases to decide 
 contrary to what can scarcely be doubted to have been the inten- 
 tion, rejecting evidence which may be most satisfactory in the 
 particular instance to prove it. The answer is, that interpreters 
 have to deal with the written expression of the writer's intentionj 
 and Courts of Law to carry into eflPect what he has written, not 
 what it may be surmised, on however probable grounds, that he 
 intended only to have written (e). In proportion as we are re- 
 moved from the period in which an author writes, we become less 
 certain of the meaning of the words he uses; we are not sure that 
 at that period the primary meaning of the words was the same as 
 now, for by the primary is not meant the etymological, but that 
 which the ordinary usage of society affixes to it. We are also 
 equally uncertain whether at that period the words did not bear 
 a technical or conventional sense; and whether they were not so 
 used by the writer." 
 
 Mr. Baron Parke (at p. 555), says: "I apprehend that there are 
 two descriptions of evidence (the only two which bear upon the 
 subject of the present inquiry), and which are clearly admissible 
 in every case for the purpose of enabling a Court to con- 
 [ "* 50] strue any written instrument, and * to apply it practically. 
 Foreign language, technical ivords.^ln the first place, 
 there is no doubt that not only where the language of the instru- 
 ment is such as the Court does not understand, it is competent 
 to receive evidence of the proper meaning of that language, as 
 when it is written in a foreign tongue; but it is also competent, 
 where technical words or peculiar terms, or indeed any expres- 
 sions are used, which at the time the instrument was written, 
 had acquired an appropriate meaning, either generally or by local 
 usage, or amongst particular classes. The authorities in support 
 of this position are The Attorney -General v. The Plate Glass Co., 
 
 {(l) Sic. Query " that the primary meaning is." 
 
 (e) See per Jessel, M. R., Smith v. Lucas, 18 Ch. D. 542; per Bacon, V. C, 
 London Financial Assoc, v. Kelk, 26 Ch. D. at p. 134; per cur., Behn v. Burn- 
 ers, 8 B. & S. at p. 757. 
 
 92
 
 PRIMARY MEANING — CIRCUMSTANCES. * 51 
 
 1 Anst. 39; Goblett v. Beechy, 3 Sim. 24; Smith v. Wilson, 3 B. 
 & Ad. 728; Eichardson v. Wilson, -i B. & Ad. 787; and Clayton 
 V. Gregson, 5 Ad. & E. 302." 
 
 Evidence as to circumstances. — " This description of evidence 
 is admissible, in order to enable the Court to understand the 
 meaning of the words contained in the instrument itself, by them- 
 selves, and without reference to the extrinsic facts on which this 
 instrument is intended to operate. For the purpose of applying 
 the instrument to the facts, and determining what passes by it, 
 and who take an interest under it, a second description of evi- 
 dence is admissible, viz., every material fact that will enable the 
 Court to identify the person or thing mentioned in the instru- 
 ment, and to place the Court whose province it is to declare the 
 meaning of the words of the instrument, as near as may be in the 
 situation of the parties to it. The authorities for this position 
 are also numerous; they are referred to in Yice-Chancellor dig- 
 ram's excellent Treatise on the Admission of Extrinsic Evidence, 
 under the Fifth Proposition (p. 53, 3rd edit.). From the con- 
 text of the instrument, and from these two descriptions of evi- 
 dence, with such circumstances as by law the Court, without evi- 
 dence, may of itself notice, it is its duty to construe and apply 
 the words of that instrument ; and no extrinsic evidence of the 
 intention of the party to the deed, from his declarations, whether 
 at the time of his executing the instrument, or before or 
 after that time, is admissible; the duty of the *Court be- [ * 51 ] 
 ing to declare the meaning of what is written in the in- 
 strument, not of what was intended to have been written." 
 
 Lord Chief Justice Tindal (at p. 565), says : " The general 
 rule I take to be, that where the words of any written instrument 
 are free from ambiguity in themselves, and where external cir- 
 cumstances do not create any doubt or difficulty as to the proper 
 application of those words to claimants under the instrument, 
 or the subject-matter to which the instrument relates, such in- 
 strument is always to be construed according to the strict, plain, 
 common meaning of the words themselves; and that in such 
 case evidence dehors the instrument, for the purpose of explaining 
 it according to the surmised or alleged intention of the parties 
 to the instrument, is utterly inadmissible. If it were otherwise, 
 no lawyer would be safe in advising upon the construction of a 
 written instrument nor any party in taking under it, for the ablest 
 advice might be controlled and the clearest title undermined, if at 
 some future period parol evidence of the particular meaning which 
 the party affixed to his words, or of his secret intention in mak- 
 ing the instrument, or of the objects he meant to take benelit 
 under it, might be set up to contradict or vary the plain language 
 of the instrument itself." 
 
 "The true interpretation, however, of every instrument being 
 manifestly that which will make the instrument speak the inten- 
 
 93 ■
 
 * 53 PRIMAKY MEANING CIRCUMSTANCES. 
 
 tion of the party at the time it was made, it has always been con- 
 sidered as an exception, or perhaps, to speak more precisely, not 
 so much an exception from, as a corollary to, the general rule 
 above stated, that where any doubt arises upon the true sense 
 and meaning of the words themselves, or any difficulty as to their 
 application under the surrounding circumstances, the sense and 
 meaning of the language may be investigated and ascertained by 
 evidence dehors the instrument itself ; for both reason and com- 
 mon sense agree that by no other means can the language of the 
 instrument be made to speak the real mind of the party. Such 
 
 investigation does of necessity take place in the interpre- 
 [ * 52 ] tation of instruments * written in a foreign language; 
 
 ancient documents — in the case of ancient instruments, 
 where, by the lapse of time and change of manners, the words 
 have acquired in the present age a different meaning from that 
 which they bore when originally employed; technical woi'ds — 
 in cases where terms of art or science occur, in mercantile con- 
 tracts, which in many instances use a peculiar language employed 
 by those only who are conversant in trade and commerce; and in 
 other instances in which the words, besides their general common 
 meaning, have acquired, by custom or otherwise, a well-known 
 peculiar idiomatic meaning in the particular country in which 
 the party using them was dwelling, or in the particular society of 
 which he formed a member, and in which he passed his life. In 
 all these cases evidence is admitted to expound the real meaning 
 of the language used in the instrument, in order to enable the 
 Court or judge to construe the instrument, and to carry such real 
 meaning into efifect." 
 
 Evidence as to intention. — " But whilst evidence is admissible 
 in these instances for the purpose of making the written instru- 
 ment speak for itself, which without such evidence would be 
 either a dead letter, or would use a doubtful tongue, or convey a 
 false impression of the meaning of the party, I conceive the ex- 
 ception to be strictly limited to cases of the description above 
 given, and to evidence of the nature above detailed; and that in 
 no case whatever is it permitted to explain the language of a 
 deed by evidence of the private views, the secret intentions, or 
 the known principles of the party to the instrument, whether re- 
 ligious, political, or otherwise, any more than by express parol de- 
 clarations made by the party himself, which are universally ex- 
 cluded, for the admitting of such evidence would let in all the 
 uncertainty before adverted to; it would be evidence which in 
 most instances could not be met or countervailed by any of an op- 
 posite bearing or tendency, and would in effect cause the secret 
 undeclared intention of the party to control and predominate 
 over the open intention expressed in the deed." 
 
 In Drummond v. The Attorney General for Ireland, 2 
 [ * 53 ] * H. of L. 837, Lord Brougham says (at p. 862) : Cir- 
 94
 
 PRIMARY MEANING CIRCUMSTANCES. * 54 
 
 cumstances. — "The evidence was admissible in this case for the pur- 
 pose of showing the circumstances in which the party was when 
 making the instrument. You admit it as you admit evidence in 
 construing a will, not to modify the expressions of the will, not 
 to affix a sense upon the will it does not bear, not to tell you what 
 the meaning of the will is, but to tell you what were the circum- 
 stances in which the testator was when he used those expressions, 
 for the purpose of enabling you to ascertain what meaning he 
 affixed to the expressions that he used, and for no other purpose." 
 
 U^fige. — Lord Campbell says (at p. 863) : "In construing 
 such an instrument, you may look to the usage to see in what 
 Isense the words were used at the time; you may look to contem- 
 poraneous documents, as well as to Acts of Parliament, to see in 
 what sense the words were used in the age in which the deeds 
 were executed {Shore v. Wilson, 9 CI. & F. 413, et seq.); but to ad- 
 mit evidence to show the sense in which words were used by par- 
 ticular individuals, is contrary to sound principle. 
 
 Circumstances. — In The Attorney-General v. Clapham., 4 DeG. 
 M. & G. 591, Lord Cranworth (at p. 627), says : " In Lady Hew- 
 ley^s Case, Shore v. Wilson (9 CI. & Fin. 355), and in the later 
 case from Dublin, Drummond v. The Attorney -General (1 Dru. & 
 War. 353; and S. C. on appeal, 2 H. of L. Cas. 837), parol evi- 
 dence was received only to enable the Court to understand and 
 construe the deed under which the trusts existed. The great 
 question in the former case was as to what was the sense in which 
 the words " Godly Preachers of Christ's Holy Gospel " were to 
 be understood in the deed creating the trust, and in the latter the 
 question was in like manner as to the meaning of the words 
 "Protestant Dissenters." In both these cases the parol evidence 
 was necessary, in order to enable the Court rightly to understand 
 the deed. Certain words were used which it was necessary to 
 construe, and this could not be done without admitting a great 
 deal of evidence as to the state of religious parties at the 
 time * when the deeds were framed. For such a purpose [ * 54 ] 
 the evidence was most reasonable. It was like the evi- 
 dence afforded by a dictionary, which enables \\b to translate a 
 foreign language; or a book of science which gives us the mean- 
 ing of words of art." 
 
 Usage. — Context. — A written instrument " is to be construed 
 according to its sense and meaning, as collected, in the first place, 
 from the terms used in it, which terms are themselves to be under- 
 stood in their plain, ordinary, and popular sense, unless they 
 have generally in respect to the subject-matter, as by the known 
 usage of trade, or the like, acquired a peculiar sense distinct from 
 the popular sense of the same words; or unless the context evi- 
 dently points out that they must in the particular instance, and 
 in order to effectuate the immediate intention of the parties to 
 that contract, be understood in some other special and peculiar 
 
 95
 
 * 55 PRIMARY MEANING. 
 
 sense; " per Lord Ellenborough, C. J., Robertson v. French, 4 East, 
 135. 
 
 Usage. — " As words and phrases of speech are to be expounded 
 and construed as they are generally understood, so it is likewise 
 in particular places; and therefore, if I covenant to convey to 
 another an acre of land in Cornwall, the common acceptation of the 
 word 'acre' there amounts to as much as a hundred of other 
 counties, so ' a perch ' in Staffordshire is as much as twenty 
 perches in some other places, therefore such words must be gov- 
 erned by the common and known acceptation of the people;" 
 per Curiam, Barksdale v. Morgan, 4 Mod. 185. 
 
 Technical ivords. — " In my view the principle upon which words 
 are to be construed in instruments is very plain — where there is 
 a popular and common word used in an instrument, that word 
 must be construed prima facie in its popular and common sense. 
 If it is a word of a technical or legal character, it must be con- 
 strued according to its technical or legal meaning. If it is a 
 word which is of a technical or scientific character, then it must 
 be construed according to that which is its primary meaning, 
 namely, its technical and scientific meaning. But before you can 
 give evidence of the secondary meaning of a word, you 
 [ * 55 ] must satisfy the * Court from the instrument itself or 
 from the circumstances of the case that the word ought 
 to be construed, not in its popular or primary signification, but 
 according to its secondary intention : " per Fry, J., Holt v. Col- 
 lyer, 16 Ch. D. 720. 
 
 Circumstances. — " This is the first time I have ever known it 
 doubted, whether the estate, and interest, and powers of the set- 
 tlor over the estate, he was settling was admissible in proof. I 
 am not offering declarations of what the party said she meant, I 
 am not construing a legal instrument by the acts of the parties, 
 or by their understanding upon it; but, by showing the circum- 
 stances and situation of the party, I am enabling the Honse to 
 judge what, in legal construction, was her meaning. And I am 
 not aware that there is any legal authority to exclude the evi- 
 dence of such circumstances and situation. If a man makes any 
 deed or will, have I not a right to know what estate he had at the 
 time he made such deed or will; and does not the construction 
 vary, in some cases, according to the estate? If I grant a man 
 an estate for life, without saying whether for his life or mine, is 
 not evidence admissible to show what interest I had in the prem- 
 ises? for, if I was tenant in fee, he will take an estate for his own 
 life; if I was tenant in tail or for life only, he will take for mine (/). 
 If a man bequeath me £10,000 £3 per cent, consols, it will be a 
 specific legacy if he have that stock at the time, not specific, if he 
 have it not :" per Bay ley, J., Smith v. Doe d. Jersey, 2 Brod. & 
 
 (/) See Co. Litt. 42a.; cited post, p. 95. 
 
 96
 
 EQUIVOCATION — FOREIGX LANGUAGE — ILLEGIBLE DOCUMENT. * 56 
 
 Bing. 550. In that case a settlement contaiued a power to grant 
 leases, " so as there be contained in every such lease a power of 
 re-entry for non- payment of the rent thereby to be reserved;" the 
 power of re-entry inserted into the lease was in case the rent 
 should be unpaid for fifteen days, and there should not he suffi- 
 cient distress, or in certain other events; held, that evidence was 
 admissible as to the form of the power of re-entry inserted in 
 leases of the estate prior to the settlement: see per Lord Eldon. 
 L. C, at p. 602. et seq. 
 
 * '' To ascertain the meaning of the words nsed in the [ * 56 ] 
 writing, every part of it must be considered with the help 
 of those surrounding circumstances which are admissible in 
 evidence to explain the words, and put the Com-t as nearly as 
 possible in the situation of the writer of the instruments;" per 
 Lord AVensleydale, Grey v. Pearson, 6 H. L. C. 106; and see per 
 Jessel, M. R., Ex p. Walton, 17 Ch. D. at p. 751; per Lord Bram- 
 well. Hill v. East and West India Dock Co., 9 App. Cas. at p. 4(54. 
 "That which he has written is to be construed by every part of 
 it being taken into consideration according to its grammatical 
 construction, and the ordinary acceptation of the words used, with 
 the assistance of such parol evidence of the surrounding circum- 
 stances as is admissible to place the Court in the position of the 
 testator;" per Lord Wensleydale, Roddy v. Fitzgerald, 6 H. L. 
 C. 876. 
 
 Exception. — Equivocation. — It will be seen (Chapter VIII., 
 post) that in cases of equivocation, by which is meant cases where 
 the description in the document of a person or thing is equally 
 applicable to several persons or things, direct evidence of intention 
 (seepo.s^ p. 107) is admissible to determine which of such persons 
 or things the writer intended to point out by such description. 
 
 Foreign language. — Illegible document. — There are also two ap- 
 parent exceptions : first, where the document is written in a foreign 
 language, in which case a translator must be employed ; and second, 
 where the document is so illegible that the Court cannot read it, or 
 written in cypher, Kell v. Charmer, 23 Beav. 195, in which cases the 
 evidence of experts is admissible to determine what were the words 
 employed or meant. It seems that where it is alleged that the 
 document is illegible, it is for the Court and not for the jury, to 
 decide whether it is illegible; in other words the Court will not 
 resort to the evidence of experts to decipher the instrument, un- 
 less it is unable to do so for itself; Remon v. Hayward, 2 Ad. cS: 
 El. 666. 
 
 Dictionary. — It should be added that the Court may refer to ti 
 dictionary for the purpose of ascertaining the meaning of a word; 
 Mattheiv v. Purchings, Cro. Jac. 203; Bland ford v. Marlborough, 
 2 Atk. at p. 545, where Law Dictionaries were referred to. 
 
 As to a will made by a domiciled Englishman in Scotch form, 
 see Bradford v. Yoimg, 26 Ch. D. 656, 668. 
 
 7 INTEEPKETATION OF DEEDS. 97
 
 * 58 RULE AS TO MERCANTILE CONTRACTS. 
 
 [ * 57 ] * Mercantile Contracts. 
 
 The rule that technical words must bear their teclinical mean- 
 ings in instruments relating to the art or science to which they 
 belong, is of the greatest importance in the interpretation of mer- 
 cantile contracts, the rule as to which appears to be laid down 
 correctly by the learned authors of Manning and Granger's Ke- 
 ports, in the note to Lewis v. Marshall, 7 Man. & Gr. 745, viz: — 
 
 Rule 12. — Rale as to mercantile contracts. — In construing a 
 usual mercantile contract, the question is, in what sense have the 
 terms been used in similar contracts? In the case of an unusual 
 contract, have the terms acquired any, and what, peculiar mean- 
 ing in general mercantile language or in the particular trade? 
 
 In Myers v. Sari, 3 El. & El. 306, Cockburn, C. J., says (at p. 
 315) : " the duty of the Court is so to construe a contract as to give 
 effect to the intention of the parties. Now, although parol evi- 
 dence is not admissible to contradict a contract, the terms of 
 which have but one ordinary meaning and acceptation, yet if the 
 parties have used terms which bear not only an ordinary mean- 
 ing, but also one peculiar to the department of trade or business 
 to which the contract relates, it is obvious that due effect 
 would not be given to the intention, if the terms were interpreted 
 according to their ordinary and not according to their peculiar 
 signification. Therefore, whenever such a question has come be- 
 fore the Courts, it has always been held that where the terms of 
 the contract under consideration have, besides their ordinary and 
 popular sense, also a peculiar and scientific meaning, the parties 
 who have drawn up the contract with reference to some peculiar 
 
 department of trade or business, must have intended to 
 [ * 58 ] use * the words in the peculiar sense. This is but an ap 
 
 plication of the well-known rule that the interpretation 
 of contracts must be governed by the intention of the parties. 
 And from the nature of the case, the peculiar meaning of the 
 terms used can be discovered only by means of parol evidence."'^* 
 
 2* Murray v. Hatch. 6 Mass. 465; Broad well v. Butler, 6 McLean, 299; Mil- 
 ler V. Stevens. 100 Mass. 518; Page v. Cole, 100 Mass, 518; Eoberts v. Bat- 
 ton, 14 Vt. 195; Bissell v. Campbell, 54 N. Y. 353; Aughinbaugh v. Copper- 
 heffer, 55 Pa. St. 347; Allegre v. Ins. Co., 6 H. & J. (Md.) 468; Avery v. 
 Stewart, 2 Conn. 69; Hinton i;. Locke, 5 Hill (N. Y.), 437; Colt r. Commer- 
 cial Ins. Co., 7 Johns. 385; Astnr v. Whaling Ins. Co.. 7 Cow. (N. Y.) 202; 
 Steel Works v. Dewey, 37 Ohio St. 242; Douaer v. Dunham, 79 111. 131; 
 Walker v. Barron. 6 Minn. 508; Hinton v. Coleman, 45 Wis. 465; Steyer ?'. 
 Dwyer, 31 Iowa, 20; Busch v. Pollock, 41 Mich. 64; Hibler v. McCartney, 31 
 Ala'. 501; Robinson v. United States, 13 Wall. 363. 
 
 But the disposition of the courts is to abide by the legal meaning of the 
 document, and to prevent doubtful usages from controlling fixed and express 
 agreements. Where any reasonable interpretation can be made out without 
 
 98
 
 MERCANTILE CONTRACTS. * 59 
 
 In the same case (at p. 318), Hill, J., says: "Now the rule 
 governing the admissibility of evidence to explain the language of 
 contracts is, that words relating to the transactions of common 
 life are to be taken in their plain, ordinary and popular mean- 
 ing; but if a contract be made with reference to a subject matter 
 as to which particular words and expressions have by usage ac- 
 quired a peculiar meaning different from their plain ordinary 
 sense, the parties to such a contract, if they use those words or 
 expressions, must be taken to have used them in their restricted 
 and peculiar signification. And parol evidence is admissible of 
 the usage which affixes that meaning to them. The admissibility 
 of such evidence does not depend upon whether the expression to 
 ba construed is ambiguous or unambiguous; but merely upon 
 whether or not the expression has, with reference to the subject- 
 matter o£ the contract, acquired the peculiar meaning." See 
 Boldero v. East India Co., 26 Beav. 316. 
 
 In the same case (at p. 319), Blackburn, J., says: "I agree 
 Avith my brother Hill that the words of a written commercial con- 
 tract are to be understood in the sense which they have acquired 
 in the trade to which the contract relates. It is a xyrimCi facie 
 presumption that, if the parties to such a contract use expressions 
 which bear a peculiar meaning in the trade, they use them in that 
 peculiar meaning; which can be ascertained only by parol evi- 
 dence. I do not think that it is necessary, in order to render 
 such evidence admissible, that there should be any ambiguity on 
 the face of the phrase which has to be construed. . . . That I 
 take to be the true rule of law upon the subject; that when it is 
 shown that a lerm or phrase in a written contract bears a pecu- 
 liar meaning in the trade or business to which the con- 
 tract relates, that meaning is, * primd facie, to be at- [ * 59 ] 
 tributed to it, unless, upon the construction of the whole 
 contract, enough appears, either from express words or by neces- 
 sary implication, to show that the parties did not intend that 
 meaning to prevail." 
 
 In Boices v. Shand, 2 App. Ca., at pp. 462, 468, Lord Cairns, 
 L. C, says: "The Court it is which, when once it is in posses- 
 sion of the circumstances surrounding the contract, and of any 
 peculiarity of meaning which may be attached by reason of the 
 custom of the trade, to any of the words of that contract, has to 
 place the construction ui)on the contract. . . Now having sub- 
 mitted to your lordships what I understand to be the natural and 
 literal meaning of this contract, I ask how is that natural mean- 
 ing to be got rid of? My Lords, I conceive in this way, and only 
 
 evidence of nsafje, such evidence will not be heard. Ins. Co. r. Wrij^ht, 1 
 Wall. 456; Barbour w. Lambert, 28 Ala. 710; Whitmore r. Steamboat, 20 Mo. 
 51.5. 
 
 The rule is one which lias no application when the meaninp is clear. 
 Sleight I'. Khinelandcr, 1 Johns. 192; Gross v. Criss, 3 Grat. (Va.) 262. 
 
 99
 
 * 60 MERCANTILE COKTRACTS. 
 
 in this way. It was of course competent for those who were re- 
 sisting the application of this natural construction of the contract, 
 to have said: ' We will prove by evidence that according to the 
 custom of the trade, these words, which have this natural signifi- 
 cation, are used in a wider or in a different sense.' . . . That of 
 course would, according to the well-known rule of law which ad- 
 mits parol evidence, not to contradict a document, but to explain 
 the words used in it, supply, as it were, the mercantile diction- 
 ary in which you are to find the mercantile meaning of the words 
 which are used. That would be a legitimate and well-known 
 mode of construing the document." 
 
 Tindal, C. J., in delivering judgment in Leicis v. Marshall, 7 
 Man. & Gr. 729 (at p. 744), says: "On the present occasion, 
 the question was, whether there was a recognized practice and 
 usao-e with reference to the voyage and business out of which the 
 written contract, the subject-matter of the action, arose, and to 
 which it related, which gave a particular sense to the words em- 
 ployed in it, so that the parties might be supposed to have used 
 these words in such sense. 
 
 "The character and description of evidence admissible for that 
 purpose is, the fact of a general usage and practice prevailing in 
 the particular trade or business, not the judgment and 
 [ * 60 ] opinion of the witnesses; for the contract * may be safely 
 and correctly interpreted by reference to the fact of usage; 
 as it may be presumed, that such fact is known to the contract- 
 ing parties, and that they contract in conformity thereto; but the 
 judgment or opinion of the witnesses called affords no safe guide 
 for interpretation, as such judgment or opinion is confined to 
 their own knowledge." 
 
 In Brown v. Byrne, 3 El. & Bl. 703, Coleridge, J., says (at p. 
 715), " Mercantile contracts are very commonly framed in a lan- 
 guage peculiar to merchants: the intention of the parties, though 
 perfectly well known to themselves, would often be defeated if 
 this language were strictly construed according to its ordinary 
 import in the world at large: evidence, therefore, of mercantile 
 usage and custom is admitted in order to expound it and arrive 
 at its true meaning. ... In the construction of a contract among 
 merchants, tradesmen or others, the evidence will not be excluded 
 because the words are in their ordinary meaning unambiguous; 
 for the principle of admission is, that words perfectly unambigu- 
 ous in their ordinary meaning are used by the contractors in a 
 different sense from that." 
 
 Examples of cases in which evidence has been admitted to ex- 
 plain technical words: — 
 
 In a building contract: "weekly account;" Myers v. Sari, 3 El. 
 & El. 306: "per superficial yard of work nine inches thick;" 
 Symonds v. Lloijd, 6 C. B. N. S. 691. 
 
 In a charter-party; " in regular turns of loading;" Leidemann 
 
 100
 
 EVIDENCE AS TO TECHNICAL WORDS. * 61 
 
 V. Schultz, 14 C. B. 38; see also Hudson v. Clonensfon, 18 C. B. 
 213; "in regular turn;" Luirson v. Burners, 1 H. & C. 390; "in 
 turn to deliver;" Robertson v. Jackson, 2 C. B. 412. 
 
 In a contract relating to sport: "across countrv;" Ei'ans v. 
 Pratt, 3 Man. & Gr. 759: "P. P.;" Daintrec v. Hutchinson, 10 
 M. & W. 85. 
 
 In a theatrical agreement: "three years;" Grant v. Maddox, 
 15 M. & W. 737. 
 
 In a contract of service: "to serve from 11 Nov. next 
 until 11 Nov., 1817;" (the evidence was to show * that [ *G1 ] 
 certain holidays were allowed): Reg. v. Inhabitants of 
 Stoke-upon- Trent, 5 Q. B. 303: "the same ground" (the servant 
 being a commercial traveller); Mumford v. Gething, 7 C. B. N. 
 S. 305. 
 
 In a contract for sale: "sold 18 pockets Kent hops at 100s." 
 (to show tliat the price was meant to be £5 per cwt. ) ; Spicer v. 
 Cooper, 1 Q. B. 424: "good" and "fine" barley; Hutchinson v. 
 Bowker. 5 M. & W. 535: "mess pork of Scott & Co." (to show 
 that this meant manufactured by Scott & Co.) ; Powell v. Horton, 
 2 Bing. N. G. GG8: "bale" of gambler (to show that by usage it 
 meant a package of a particular description); Gorissen v. Perrin, 
 2 G. B. N. S. 681. 
 
 In an agreement for an agricultural lease: "mines and miner- 
 als;" Tucker v. Linger, 21 Ch. D. 18; S. C. 8 App. Cas. 508. 
 
 In a mining lease: "level;" Clayton v. Greqson, 5 Ad. & El. 
 302. 
 
 In a policy of insurance on a ship: to show that the words "the 
 East Indies, East India Islands," included the Mauritius: Robert- 
 son V. Clarke, 1 Bing. 445. 
 
 In a lease of a rabbit warren: that by custom of the country 
 "one thousand rabbits" means 1,200: Smith v. Wilson, 3 B. & 
 Ad. 728. 
 
 In an open policy on frieght: that "freight" meant by usage 
 the gross, and not the net amount of the freight: Palmer v, Black- 
 burn, 1 Bing. 61. 
 
 In a bill of lading: " freight for the said goods five-eighths of a 
 penny sterling per pound, with five per cent, primage and average 
 accustomed;" to show that by custom three months' interest or 
 discount is deducted from freights payable under bills of lading 
 on goods coming from certain ports: Brown v. Byrne, 3 El. k, Bl. 
 703. " Freight at the rate of 80.s. per ton cf 20 cwt., gross weight, 
 tallow, other goods, grain, or seed, in proportion, as per London 
 Baltic printed rates:" The Russian Steam Navigation Co. v. Silva, 
 13 G. B. N. S. 610. In a contract of a sale of land the term 'free 
 hold equities' occurred: a document drawn up by the purchaser 
 and given by him to the vendor but not referred to in the con- 
 tract was admitted as evidence of moaning; Roots v. SneUing, 48 
 L. T. 210. 
 
 101
 
 * 03 TECHNICAL LEGAL TERMS. 
 
 [ * 62 ] * Technical Legal Terms. 
 
 Technical legal terms. — In the application of the rule to the 
 interpretation of a deed containing technical legal terms, we must 
 remember that the draftsman probably used them in their technical 
 meanings, and accordingly we must affix such meanings to them, 
 unless they are excluded by the context. 
 
 The rule is applied to the construction of Acts of Parliament, 
 Laird v. Briggs, 19 Ch. D. 22. 
 
 In Roddy v. Fitzgerald, 6 H. L. C, 823, Lord Wensleydale, in 
 laying down the rules for the interpretation of wills, which do 
 not appear to differ in this respect from those employed for deeds, 
 savs (at p. 877): "It is a most important rule in the construc- 
 tion of the words used in a will that technical terms, or words of 
 known legal import, must have their proper legal effect at- 
 tributed to them, although the testator uses inconsistent terms or 
 gives repugnant and impossible directions. To deprive the tech- 
 nical words of their appropriate sense, there must be sufficient to 
 satisfy a judicial mind that they were meant by the testator to be 
 used in some other sense, and to show what that sense is." And 
 in Ralph v. Carrick, 11 Ch. D. at p. 878, Cotton, L. J., said: 
 " Our duty is in each case to consider the words of the will. I 
 say that, for the purpose of calling attention to the argument 
 that in the absence of any rule of law laid down or established by 
 cases, we are at liberty to construe wills as ordinary intelligent 
 persons would do. There is a fallacy in this. We are bound to 
 have reo-ard to any rules of construction which have been estab- 
 lished by the Courts, and subject to that, we are bound to con- 
 strue the will as trained legal minds would do. . . . We must 
 therefore construe the will as we should construe any other docu- 
 ment." 
 [ * 63 ] In S7nith v. Butcher, 10 Ch. D., at p. 114, Jessel, * M. 
 R, says, citing Leach v. Jay, 6 Ch. D. 496: "The rule 
 is to adopt the legal and technical meaning of the word unless it 
 is controlled by the context." 
 
 " We must attach some meaning to the word (' seised '), and 
 if we are not to take the proper meaning, but some other mean- 
 ing, what other meaning is it to be? If we are to guess at the 
 meaning which the testatrix attached to the word, where are we 
 to stop ? Therefore, it seems to me that the word must either be 
 meaningless, or else must have its proper technical meaning: " 
 Per Bramwell, L. J., Leach v. Jay, 9 Ch. D. 45. 
 
 'Evidence as to meaning of technical legal terms. — It must be 
 remembered that, as the judge before whom the case is being 
 argued is able, and is the only person authorized, to give an au- 
 thoritative declaration of the law applicable to it, no evidence is 
 102
 
 SETTLEMENT OF RULES BY WIGRAM, V.-C. * 64 
 
 admissible as to the meaning of the technical legal words em- 
 ployed other than decisions of other judges. Some few old text- 
 books are also considered as being of authority, and the judges 
 are in the habit of paying attention to the practice of convey- 
 ancers (g). It will be seen, when we come to the discussion of 
 the application of intrinsic evidence to interpretation, that the 
 necessity of attending to the context diminishes the value of prior 
 decisions. 
 
 Statetnent of the above rules applied to wills by Wig7'am, V.-C. — 
 The preceding rules in this chapter are co-extensive with the 
 2nd, 3rd, 5th, and 6th propositions laid down for the interpreta- 
 tion of wills in Wigram on Extrinsic Evidence, namely: — 
 
 Proposition 2. "Where there is nothing in tho context of a will 
 from which it is apparent that a testator has used the 
 words in which he has expressed himself in any other * than [ * 04 ] 
 their strict and primary sense, and where his words so in- 
 terpreted are sensible icith reference to extrinsic circumstances, 
 it is an inflexible rule of construction, that the words of the will 
 shall be interpreted in their strict and primary sense, and in no 
 other, although they may be capable of some popular or secondary 
 interpretation, and althoiigh the most conclusive evidence of in- 
 tention to use them in such popular or secondary sense be ten- 
 dered." 
 
 " Proposition 3. Where there is nothing in the context of a 
 will, from which it is apparent that a testator has used the words 
 in which he has expressed himself in any other than their strict 
 and primary sense, but his words so interpreted are insensible 
 u-ith reference to extrinsic circumstances, a Court of law may look 
 into the extrinsic circumstances of the case, to see whether tho 
 meaning of the words be sensible in any popular or secondary 
 sense, of which, ivith reference to these circumstances, they are 
 capable." 
 
 "Proposition 5. For the purpose of determining the object of a 
 testator's bounty, or the subject of disposition, or the quantity of 
 interest intended to be given by his will, a Court may inquire 
 into every material fact relating to the person who claims to bo 
 interested under the will, and to the property which is claimed 
 
 (//) Practice of conrrf/nriccr/<. — "The settled practice of conveyancers is to 
 bo looked upon as part of the common law:" per James, L.J., In re Ford and 
 Hill, 10 Ch. I), at p. ^70. " I agree with the Vice-Chaneellor that the prac- 
 tice of conveyancers, although it does not decide the point, is not wholly 
 irrelevant" (in construing deeds): per Jessel, M.U., In re Alhilf, Alliitl v. 
 Alhill, 10 Ch. I). 211 (at ]>. 22."^). " I put this case on the practice of convey- 
 ancers, and after the abuse which I \\n\v, heard at the bar of the House of 
 Lords and elsewhere ujion that subject, I aiu not sorry to have this npjunlu- 
 nity of stating luy ojiinion that great Avciglit should be given to that ]>rac.- 
 tice; " per J,ord ICldon, C, Iloirard v. Duranc, 1 T. i*v: \l. K7; jx r I'earson, .1., 
 Roshcr V. lioslicr. '>:> L. J. Ch. 722, at p. 7L51; and see hhtrmwd v. Oldknow, 
 3 M. & S. at p. 397. 
 
 103
 
 * 65 WORD DEFINED BY STATUTE. 
 
 as the subject of disposition, and to the circumstances of the tes- 
 tator, and of his family and affairs, for the purpose of enabling 
 the Court to identify the person or thing intended by the testa- 
 tor, or to determine the quantity of interest he has givan by his 
 will. 
 
 " The same (it is conceived) is true of every other disputed 
 point, respecting which it can be shown that a knowledge of ex- 
 trinsic facts can, in any way, be made ancillary t© the right inter- 
 pretation of a testator's words." 
 
 " Proposition 6. Where the words of a will, aided by evidence 
 of the material facts of the case, are insufficient to determine the 
 testator's meaning, no evidence will be admissible to prove what 
 the testator intended, and the will {except in certain special cases) 
 will be void for uncertainty." 
 
 [ *65 ] * Rule 13. — Meaning of word defined by Aet of Par- 
 liament. — Where the meaning of a word has been defined 
 by an Act of Parliament, no extrinsic evidence is admissible to 
 show that the parties to the deed used it in any other meaning. 
 
 Examples. — In Doe d. Spicer v. Lea, 11 East, 312, evidence 
 was not admitted to show that by the words " the feast of St. 
 Michael " was meant Old Michaelmas Day, though as was pointed 
 out by the Court intrinsic evidence might have been, used for that 
 purpose. 
 
 In The Master and Brethren of St. Cross v. Lo7'd Hoivard de 
 Walden, 6 T. R. 338, it was held that the reservation in a lease 
 of so many quarters of corn must mean quarters as defined by the 
 Act of Parliament, and not customary quarters. See 1 Smith's 
 Leading Cases, 8th ed. 618; Acre; see G'Donnell v. O'Donnell, 
 1 L. R. (Ii.) 284 
 
 104
 
 ANCIE^NT DOCUMENTS. * 67 
 
 *CHAPTEIIY. [*66] 
 
 ANCIENT DOCUMENTS. 
 
 Contemporaneous Interpretation. Evidence of Us(tge. 
 
 Difficulty produced by lapse of time in obtaining evidence of 
 meanings of irords. — The longer the period that elapses between 
 the time of writing and the time of interpi'eting a document, the 
 greater is the difficulty in obtaining evidence admissible under 
 Rule 11 as to the meanings of the woi'ds employed: and if the 
 document is very ancient, the difficulty may be insuperable. If 
 this be the case, we can sometimes arrive at those meanings with 
 a fair degree of certainty by ascertaining what was the interpre- 
 tation placed on the document immediately after its execution. 
 The probability is great that at that time there were some per- 
 sons to whose interest it was to insist upon the document being 
 properly construed, and the fact that a particular interpretation 
 was th°n placed on it affords a great probability of the correct- 
 ness of such particular interpretation: and this probability is in- 
 creased if we find that during a long course of years such inter- 
 pretation has been acquiesced in. 
 
 Rule 14. — Contemporaneous interpretation. — Evidence is ad- 
 missible as to the interpretation placed upon an ancient document 
 by persons who lived at, or at a time not remote from, the time 
 of the writing of the document."^ 
 
 The interpretation placed upon a document by persons who lived 
 at the time of writing is usually called " contemporane- 
 ous " interpretation, and * some times though incorrectly, [ * 67 ] 
 "the interpretation placed upon it by contemporaneous 
 usage:" I say ^'■incorrectly,''^ because usage implies duration. 
 
 25 Conncrv v. Brooke, 73 Pa. St. 80; Messor v. ()ostrei('li, .'i^^ Wis. (>84; 
 Stanley r. Green, 12 Cal. 158; Piitzet v. Vanlirunt, 10 N. Y. Sup. Ct. fjOl. 
 
 Tlie law will not declare a deed void for niieertainty until it has been ex- 
 amined with all the lif^ht wliieli contcniporaneou.s facts may furnish. Staley 
 f. Green, 12 Cal. 1.".8. 
 
 A deed is to be construed with n'ference to the actual state of the ])r(>i)eity 
 at the time of execution. IJiclnucIson v. I'almer, :!H N. II. 2lH; I'ollard v. 
 Maddox, 28 Ala. .^)2.''); Dunklee.r. Wilton II. Co., 2 IN. II. l8'J; Abbott v. Ab- 
 bott, 51 Me. 581; Coram, v. Koxbury, Gray, 4U3. 
 
 105
 
 * GS CONTEMPORANEOUS USAGE. 
 
 " Contemporanea expositio est fortissima in lege;^^ 2nd Inst. 
 136. 
 
 •' In the construction of ancient grants and deeds, there is no 
 better way of construing them than by usage, and contemporanea 
 expositio is the best way to go by;" per Lord Hard wicke, C, 
 Att.-Gen. v. Parker, 3 Atk. 577. 
 
 Evidence of the acts of the owners of allotments under an In- 
 closure Act admitted to explain an ambiguous' award: — "If the 
 road was improperly set out at first, there were persons enough 
 interested in contesting it, who would not have acquiesced so 
 long;" per Cur., Wadley v. Bayliss, 5 Taunt. 752. 
 
 "One of the most settled rules of law for the construction of 
 ambiguities in ancient instruments is, that you may resort to 
 contemporaneous usage to ascertain the meaning of the deed; 
 tell me what you have done under such a deed, and I will tell 
 you what that deed means; " per Sugden, C, Att.-Gen. v. Drum- 
 mond, 1 Dr. & War. 368. 
 
 " Contemporaneous usage is, indeed, a strong ground for the 
 interpretation of doubtful words or expressions;" per Lord Cot- 
 tenham, Drnmmond v. Att.-Gen., 2 H. L. C. 86L 
 
 " In construing an ancient instrument, you may look to the 
 usage to see in what sense the words were used at that time;" 
 per Lord Campbell, ib. 863. 
 
 Ambiguity in ivord " usage.'" — It will be observed that there 
 is an ambiguity in tlie word "usage" as employed in these judg- 
 ments; it may mean either usage under the instrument, or the 
 ordinary usage of society, which at the date of the deed affixed 
 to the words in it a meaning different from that which they now 
 bear; but a comparison of the judgments with those of Sugden, 
 C, in the same case, ubi supra, will shew that the word was used 
 
 in the former meaning. 
 [ * 68 ] * The manner in which the first trustee of a fund, who 
 was the donor of it, acted in the distribution of it, was 
 held to be strong evidence of intention, and was so treated by 
 the Court in construing the trust deed; Att.-Gen. v. Brazenose 
 College, 2 CI. & Fin. 295 (at p. 317). 
 
 Evidence of " the early and contemporaneous application of the 
 funds of the charity itself by the original trustees under the deed " 
 was held by Tindalj C. J., to be admissible to construe the deed; 
 Shore v. Wilson, 9 CI. & Fin. 569. 
 
 Contemporanea expositio apjiUed to Statutes. — It is perhaps 
 worth noticing that the rule of contemporanea expositio is often 
 applied to the interpretation of Statutes; Sharpley v. Overseers 
 of Mablethorpe, S El. & Bl. 917; Corporation of Netccastle v. 
 Att.-Gen., 12 CI. & Fin. at p. 419; R. v Scot, 3 T. K. 602; Shejp- 
 pard V. Gosnold, Vaugh. 169; Montrose Peerage Case, 1 Macq. 
 H. of L. 401; Dunbar {Corporation) v. Roxburghe (Duchess of), 
 3 CI. &Fin. 335; The Queen v. Archbishop of Canterbury, 11 Q. 
 
 106
 
 USAGE EXPLAINED. 
 
 *C)9 
 
 13 5S1. — Debates in Parliament. — Following the ordinary rule, 
 the Courts are not iullueaced in the interpretation of a statute 
 by anything that occurred in Parliament during the passing of 
 the statute" Gorham v. Bishop of Exeter, 5 Ex. 667; Barbat v. 
 Allen, 1 Ex. 616; Richards v. 'Mc Bride, 8 Q. B. D. 119, 123. 
 And, if the words of-the Statute are clear, an interpretation which 
 contradicts them cannot l)e supported on the ground of usage; 
 Sheppard v. GosnokL Vaugh. 170: Dunbar (Corporation of) v. 
 Duchess of Boxburghe, 3 CI. & F. 335 ; The Queen v. Archbishop 
 of Canterbury, 11 Q. B. 581; Att.-Gen. v. Rochester {Corporation 
 of), 5 De G. M. & G. 797, per Turner, L. J., at 822. 
 
 Rule 15.— Evidence of usage. — In interpreting an ancient 
 document, evidence of the usage under it is admissible to explain 
 any obscurity or ambiguity, but not to contradict its clear and 
 unambiguous terms. 
 
 " Usage "explained. — By usage is meant the acts habitually 
 done with reference to some particular matter during a 
 long * period; and when such acts have been done by [ * 69 ] 
 persons purporting to act under a document, they afford 
 the best possible evidence as to the interpretation which those 
 persons placed upon it. Occasional deviations fi'om the regular 
 course will not negative the existence of a consistent usage, for 
 " it follows almost necessarily from the imperfection and irregu- 
 larity of human nature that a uniform course is not preserved 
 during a long period." A little change is made from time to 
 time through ignorance or other causes; and when by the lapse 
 of years the evidence is lost which would explain such irregulari- 
 ties, we must not too hastily assume that the received construc- 
 tion is therefore incorrect; see The Queen v. Archdall, 8 Ad. & 
 El. 288. 
 
 "Ancient charters, whether they be before time of memory, or 
 after, ought to be construed as the law was taken when the char- 
 ter was made, and according to ancient allowance. . . . And 
 when any claimed before the Justices in Eyre any franchises by 
 an ancient charter, though it had express words for the franchises 
 claimed; or if the words were general, and a continual possession 
 pleaded of the franchises claimed, or if the claim was by old and 
 obscure words, and the party in pleading, expounding them to 
 the court, and averring continual possession according to that 
 exposition; the entry w'as ever Inquiralur super poi^.-icssioiwrn ei 
 usum, &c., which 1 have observed in divers records of those 
 
 107
 
 * 71 MODERN USAGE. 
 
 Eyres, agreeable to that old rule, Optimus interpres reriim usus; 
 2nd Inst. 282. 
 
 " In the case of a grant no usage, however long, can counter- 
 vail the clear words of the instrument, for what is done under 
 usurpation cannot constitute a legal usage: but, it is equally 
 clear, that when a grant of remote antiquity contains general 
 words, the best exposition of such a grant is long usage 
 [ * 70 ] under it. Unless, therefore, *the usage of forty years ago 
 can be proved to have originated in usurpation, it is evi- 
 dence whence u.sage anterior to that time may be presumed: and 
 such a length of modern usage, connected with the ancient usage, 
 afibrds the strongest exposition of the meaning of the original 
 grant;" per Dallas, C. J., Chad v. Tilsed, 2 Brod. & Bing. 406; S. 
 C. 5 Moore, 185. 
 
 "However general the words of the ancient deeds may be they 
 are to be construed by evidence of the manner in which the thing 
 has always been possessed and used;" per Ellenborough, C. J., 
 Weld v. Hornby, 7 East, 199. 
 
 "Suppose the words of the charter are doubtful, the usage in 
 this case is of great force; not that usage can overturn the clear 
 words of a charter: but if they are doubtful, the usage under the 
 charter will tend to explain the meaning of them; especially in a 
 case like this, where, before the charter, the corporation consisted 
 of an indefinite number of burgesses by prescription, and where 
 the charter itself added no new members, but only incorporated 
 the old ones;" per Lord Mansfield, C. J., Rex v. Varlo, 1 Cowp. 
 250. 
 
 " There can be no doubt that to ascertain the meaning of an 
 ancient grant describing lands as ' the territory of Claudeboy,' 
 parol evidence of acts of ownership is admissible, as showing 
 what that territory included; " per Walsh, M. E., Re Belfast Dock 
 Act, Ir. Rep. 1 Eq. 141. 
 
 Modern Usage (a). — Even evidence of modern usage is admis- 
 sible : 
 
 " I have no doubt that all ancient documents, where a question 
 arises as to what passed by a particular grant, can be explained 
 by modern usage; " per Parke, B., Beaufort {Duke of ) v. Sicansea 
 (Mayor of), 3 Ex. 425; cited with approval by Malins, V. C, 
 Corporation of Hastings v. Ivall, L. R. 19 Eq. 581. 
 
 "It is not to be disputed that when the necessity of the 
 
 [* 71 ] case requires it, evidence of more recent usage and *cu8- 
 
 tom may be adduced for the purpose of explaining old or 
 
 obsolete, or even imperfect expressions to be found in ancient 
 
 (a) See Grant on Corporations, p. 28, and as to usage under a modern stat- 
 ute, see Trustees of Clyde Navigation v. Laird, 8 App. Ca. pp. 670, 673. 
 
 108
 
 USAGE TO EXPLAIN PARCELS. * 72 
 
 dociiments;" per Bacon, V. C, Earl de la Wan- v. Miles, 17 Ch. 
 
 D. 578. 
 
 '•Usage continued during living memory, when there is no- 
 thing to°the contrary, and when the question is one of prescrip- 
 tion,"may no doubt justify the presumption of a similar usage 
 from time immemorial;"' per Lord Selborne, C, Neill v. Devon- 
 shire (Duke of), 8 App. Ca. 156. 
 
 In Healy v. Thome, Ir. R. 4 C. L. 495, evidence of usage for 
 the last eighty years was admitted to construe a grant by King 
 James I. 
 
 Rule not applicable where deed is clear without it. — The rule 
 does not apply where the construction of the deed is clear with- 
 out it : 
 
 "If there is a deed which says, according to its true construc- 
 tion, one thing, you cannot say that the deed means something 
 else, merelv because the parties have gone on for a long time so 
 understanding it;" per Cranworth, C, Sadlier v. Biggs, 4 H. L. 
 
 C. 458. 
 
 " The necessity " for introducing evidence of usage " must be 
 apparent -the ambiguity must be found to be existing;" per 
 Bacon, V. C, Earl de la Warr v. Miles, 17 Ch. D. 573; see Re 
 Belfast Dock Act, It. R. 1 Eq. 141. 
 
 Examples of the application of the rule to the explanation 
 of:— 
 
 Parcels. 
 
 Ancient admissions to copyholds by the description of " tres 
 acras prati,'" followed by modern admissions to '• three acres of 
 meadow,'' held on evidence of long usage to pass the prima ton- 
 sura or fore-crop only; Stammers v. Dixon, 7 East, 200. 
 
 An ancient grant of wreck was held on evidence of long usage 
 to have passed the exclusive right to the soil of a small bay; 
 Chad V. Tilsed, 2 Brod. h Bing. 403; S. C. 5 Moore, 185; of manor 
 and wreck to have passed the sea- shore between high 
 and low- water mark; Calmadij v. *Rowe, 6 C. B. 801; of [ *72 ] 
 the Priory of H., and also four islands to the said priory 
 belonging: to wit, the island called S., containing three acres, 
 &c., with large general words granting wreck of the sea, tlot- 
 sam, jetsam, &c., to have passed the sea shore between high and 
 low water-mark ; Healq v. Thome, Ir. R. 4 C. L. 495 ; see also 
 Hamilton v. Att.-Gen., 5 L. R. Ir. 555; S. C. 9 L. R. (Ir.) 271; 
 Brew V. Haren, Ir. R. 9C. L. 29; 11 C. L. 198. 
 
 The mountain of S. containing 1,700 acres, held by evidence of 
 usage to have passed by an old demise of " the village of S. and 
 
 109
 
 * 73 CHARITABLE TRUSTS. 
 
 part of W. & T. containing by estimation 148 acres;" JVaterpark 
 V. Feymcll, 7 H. L. C. 650. 
 
 Ancient grants of Manors held, on evidence of visage which was 
 of so long standing that it might be presumed to be contempo- 
 raneous with the grant itself, to include Ihe sea-shore between 
 high and low water-mark; Beaufort {Duke of) v. Swansea {Mayor, 
 &c., of), 3 Ex. 413; Att.-Gen. v. Jo7ies, 2 H. & C. 347; S. C. 33 L. 
 J. Ex. 249. And see Hall on the Sea Shore (2n.d ed.), p. 15. 
 
 Evidence of user admitted to shew that the soil passed by a 
 surrender of '■'■pasturam bosci et subbosci de Haydwood ;"' Doe d. 
 Kinglake v. Beviss, 7 C. B. 456; S. C. 18 L. J. C. P. 128: by a 
 grant of a "Warren of Conies;" Robinson v. Duleep Singh, 11 
 Ch. D. 798. And see Browne on Usages and Customs, p. 82. 
 
 Charitable Trusts. 
 
 A power of nominating a schoolmaster given to " the vicar and 
 his successors and the churchwardens for the time being," lield 
 on evidence of usage to be well exercised by the vicar and a ma- 
 jority of the churchwardens ; WithneU v. Gartham, 6 T. R. 388. 
 See also, as to right of election. The Queeyi v. Duhvich College, 17 
 Q. B. 600. 
 
 " When a school is instituted as a free grammar-school without 
 more, it is a school to teach the elements of the learned lan- 
 guages: yet -. . . if there was an ancient free gramaiar- 
 [*73] school, and if at all times something more had * been 
 taught in it than merely the elements of the learned lan- 
 guages, that usage might ingraft upon the institution a right to 
 have a construction put upon the endowment difierent from what 
 would have been put upon it if a different usage had obtained;" 
 per Lord Eldon, C, Att.-Gen. v. Hartley, 2 Ja. & W. 378—379. 
 
 See also Att.-Gen. v. Brazenose Coll., 2 Cl. & Fin. 295, and 
 Shore v. Wilson, 9 Cl. & Fin. 569, supra, Att.-Gen. v. Boston 
 {Mayor of), 1 De Gex & Sm. 519; Att -Gen. v. Mayor of Bristol, 
 2 Ja. & W. 321; Att.-Gen. v. Murdoch, 1 De G. M. & G. 86; In 
 re Campden Charities, 18 Ch. D. 310. 
 
 And see Lewin on Trusts (7th ed. ), p. 485; Tudor on Charita- 
 ble Trusts, 243 foil. Interpretation by usage is recognized in 
 the case of charitable trusts by the Acts 7 & 8 Vict. e. 45, s. 2, 
 and 23 & 24 Vict. c. 134, s. 5. But evidence of usage was not 
 admitted where there was no ambiguity: Att.-Gen. v. Mayor of 
 Dartmouth, 48 L. T. 933. 
 
 Charters. 
 
 Where the election of a mayor was by charter to be as follows, 
 viz. : " That the mayor, aldermen, and burgesses, or the greater 
 part of them, should from time to time have a power of assem- 
 110
 
 EVIDENCE OF USAGE. *" 1 4 
 
 bling themselves, or the greater part of them, at and should 
 
 there eontiaue till they or the greater part of them then there 
 assembled should choose one of the aldermen to bemavor;" ]ield 
 on evidence of usage that an election of a mayor by a majority 
 of the electors assembled was good; Rex v. Varlo, 1 Cowp. 248. 
 In Blankleij v. Wuistanhij. 3 T. 11. 279, the limits of the juris- 
 diction of magistrates; in Gcqye v. Henley, 3 T. R. 288 (?<), the 
 question whether the presentation to a rectory belonged to the 
 mayor and aldermen, or to the mayor, aldermen, and burgesses; 
 and in Bradley v. Nen-castle-on-Tyne. 2 El. & Bl. 427, who were 
 liable to pay prij^ar/e; were determined by evidence of usage. 
 See also R. v. Osbourne, 4 East, 327; Bailiff, &c., of Tewkesbury 
 V. Bricknell, 2 Taunt. 120; R. v. Chester, 1 Mau. & Sel. 
 lOl ; Mayor of London v. Long, 1 Camp. 22; R. v. * Bell- [ * 74 ] 
 ringer, 4 T. 11. 810; The King v. Davie, 6 Ad. k El. 374; 
 see also Grant on Corporations, 27. 
 
 Miscellaneous. 
 
 A. covenant for renewal in a lease has been held, on evidence of 
 usage, to amount to a covenant for perpetual renewal, in Sadlier 
 V. Biggs, 4 H. L. C. 435; and Cooke v. Booth, 2 Cowp. 819 (see 
 the comments on this case in Baynham v. Giiy^s Hospital, 3 Ves. 
 295). But see LggiddeuY. May, 9 Ves. 325; S. C. 7 East, 237; 2 
 Bos. & P. N. R. 449. 
 
 A grajit of tithes from the Crown (Lucfon School v. Scarlett, 2 
 Y. & J 330, 363, 365); a deed of trust of a rectory, which gave 
 the right of election of a curate to the parishioners and inhabi- 
 tants (Alt. -Gen. v. Parker, 3 Atk. 576); and an ambiguous in- 
 closure award ( Wadley v. Bayliss, 5 Taunt. 752); have all been 
 explained by evidence of usage. 
 
 Where some persons have interests adverse to usage — As already 
 stated, the force of usage as evidence of interpretation is much 
 increased when it has been the interest of some of the parties to 
 dispute the correctness of the established interpretation. " It ap- 
 pears to me," says Lord Carnworth, "that there are the most 
 satisfactory circumstances tending to shew what the rights of the 
 parties are: there are, long enjoyment, the same dealing with the 
 property for a very great period, during the whole of which it 
 was for the interest of one party to resist that which, neverthe- 
 less, he from time to time performed;" Sadlier v. Biggs, 4 H. L. 
 C. 455. 
 
 Usage admissible only for explaining ambiguous words. — It is 
 sometimes said that evidence of usage is admissible only for the 
 purpose of explaining ambiguous words; Wilhncll v. Garlham, 
 T. K. 398; Att.Gen. v. Fishmongers' Co., 5 My. & Cr. 16; J)nn- 
 fjar (Corporation of) v. Duchess of Roxburghe, 3 CI. k. Fin. 335. 
 All that is meant by this dictum is that wo can only place on the 
 
 111
 
 * 75 EVIDENCE OF USAGE. 
 
 words of the document some of the meanings that they properly 
 bear, or in other words that we cannot place on the words a mean 
 ing that they cannot bear, or that we cannot put such an inter- 
 
 pretatioa on the document as will contradict its express 
 [*75] words; Att.-Gen. v. Clapham, *4 De G. M. & G. 591; 
 
 Drummond v. Att.-Gen. for Ireland, 2 H. L. C. 837; Ait.- 
 Gen. V. St. John's College, 2 De G. J. & S. 021 ; Att.-Gen. v. St. Crosr. 
 Hospital, 17 Beav. 435; Att.-Gen. v. Ewelme Hospital, 17 Beav. 
 366; Dunbar {Corporation of) v. Duchess of Roxbtirghe, 3 CI. 
 & Fin. 335; King v. Salivaij, 9 B. & C. 424; Earl de la Warr v. 
 Miles, 17 Ch. D. 673; Neill v. Devonshire {Duke of), 8 App. Ca. 
 at p. 156; and cf. Re Campden Charities, 18 Ch. D. 310. 
 
 If, on the other hand, evidence of usage were admissible for 
 the purpose of affixing to the ^words in the document meanings 
 that they do not properly bear, we should arrive at the absurd 
 result that the interpretation placed on the same document might 
 vary from time to time, or that a person who acted under a 
 mistake as to his rights by virtue of an instrument would be for 
 ever bound to act in the same manner. See Baynham v. Gvi/s 
 Hospital, 3 Ves. 295; Eaton v. Lyon, 3 Ves. 694; Iggulden v. 
 May, 9 Ves. 325; S. C. 7 East, 237; S. C. 2 Bos. & Pull. N. K. 
 449; Clifton v. Walmesley, 5 T. R. 564; Sugden, V. & P. 169. 
 
 112
 
 INTRINSIC EVIDENCE. * 76 
 
 * CHAPTER VL [*76] 
 
 INTRINSIC EVIDENCE. 
 
 Deed to he construed so as to be consistent with itself. Omis- 
 sions: Transpositions: Repugnancies: False Grammar: In- 
 correct spelling. 
 
 Rule 16. — Primary meaning excluded by context. — Where the 
 primary meaning of a word is excluded by the context, i.e., by 
 intrinsic evidence, we must affix to that word such of the mean- 
 ings that it properly bears as will enable us to collect uniform 
 and consistent intentions from every part of the deed (a)."^ Shep. 
 T. 84, 103; and see post. Rule 66, p. 217; and per Komilly, M. 
 R., Re Strand Music Hall Co., 35 Beav. 159. 
 
 " Every deed ought to be construed according to the intention 
 of the parties, and the intents ought to be adjudged of the sev- 
 eral parts of the deed, as a general issue out of the evidence, and 
 intent ought to be picked out of every part, and not out of one 
 word only;" per Hobert, C. J., Trenchard v. Hoskins, Winch, 93. 
 
 It is a rule that the construction of a deed "be made upon the 
 entire deed, and that one part of it doth help to expound another, 
 and that every word (if it may bo) may take effect and none be 
 rejected, and that all the parts do agree together and there be no 
 
 (^0 Parkhumt v. SmWi, Willes, 3?,2; Sollij v. Fo,l)c.% 4 Moore. 448; Lans- 
 dorcne v. Lansdoivne, 2 Bligh, 88, Monypenmi v. 3[onypcnny, .3 De G. & J. 
 588; next v. GUI, L. R. 7 Ch. 705; Taylor v. 'Corpomtidn of SI. Helens, 6 Ch. 
 D. 270; Laird v. Brifjgs, 19 Ch. D. 34; Tucker v. Linr/er, 21 Ch. D. 36. And 
 see cases cited in C hohnondeley v. Clinton, 2 J. & W. 11, 12: ibid, at p. 89; 
 and 1 P. Wms. 457; but see 2 J. & AV. 84; 2 :SIcr. 343. See observations, 2 
 Sm. L. C. (8th ed.) 540. 
 
 ^*^ The well-recognized rules laid down for the constrnotion of dcedsJuHtly 
 said to be founded on law, reason and coinniou sense, retjuire that the whole 
 deed shall he considered and construed together; not any particular part by 
 itself; that every part shall, if possible, be made to take eOect and every 
 word to operate; and that it shall operate accordiiig to the intent of the 
 parties, if by law it may. Richardson v. Palmer, 38 .N. H. 218; Jackson v. 
 Meyers, 3 Johns. 388. 
 
 8 INTEKl'KETATIOX OF DEEDS. 113
 
 * 78 EVERY PART OF DEED TO BE REGARDED. 
 
 discordance therein. Ex antecedent ibiis d: conseqiientibus 
 [ * 77 ] est opiima interpretatio : * for turpis est p)ars quae cum, 
 siio toto non convenit. Maledicta expositio quae corrum- 
 pit textuni ; " Shep. Touch. 87. 
 
 " Every part of the deed ought to be compared with the other 
 and one entire sense ought to be made thereof ;" Throckmerton v. 
 Tracij, 1 Plow. 161. 
 
 " The word, appertaining to the messuage, shaJl be taken in 
 the sense of usually occujned with the messuage or lying to the 
 messuage, for when appertaining is placed with the said other 
 words it cannot have its proper signification . . . and therefore 
 it shall have such signification as was intended between the par- 
 ties, or else it shall be void, which it must not be by any means, 
 for it is commonly used in the sease of occupied with or lying to, 
 and being placed with the said other words it cannot be taken in 
 any other sense, nor can it have any other meaning than is agree- 
 able with law, and forasmuch as it is commonly used in that sense 
 it is the olfice of judges to take and expound the words which 
 common people use to express their meaning, according to 
 their meaning, and therefore it shall be here taken not according 
 to the true definition of it, because that does not stand with the 
 mat^^er, but in such sense as the party intended it;" Hill v. Grange. 
 1 Plow. 170. 
 
 " Qui haeret in litera haeret in cortice, especially in the case of 
 trusts, which are to b"e ruled and governed according to the in- 
 tent of the parties, where such intent is consistent with the rules 
 of law ; and the Court will, from the general frame of a testament 
 or settlement, collect the intent, contrary to the express words of a 
 particular clause;" per Henley, L. K., Earl of NortJmmberland 
 v. Earl of Egremoni, 1 Ed. 446; citing Coryton v. Helyar, 2 Cox, 
 31:0, where an absolute term of ninety-nine years limited to J.C, 
 amongst other limitations of real estate in a will, was cut down 
 on the construction of the whole will to a term determinable on 
 the death of J. C. 
 
 " It is a true rule of construction that the sense and meaning 
 of the parties in any particular part of an instrument may be col- 
 lected ex antecedentibus et consequent ibus ; every part of 
 [ * 78 ] it may be brought into action in order to * collect from 
 the whole one uniform and consistent sense, if that may 
 be done;" per Lord Ellenborough, C. J., Barton \. Fitzgerald, 15 
 East, 540. 
 
 "In the construction of all instruments it is the duty of the 
 Court not to confine itself to the force of a particular expression, 
 but to collect the intention from the whole instrument taken to- 
 gether. But a Court is not authorized to deviate from the force 
 of a particular expression, unless it finds, in other parts of the in- 
 strument, expressions which manifest that the author of the in- 
 strument could not have the intention which the literal force of a 
 114
 
 WORDS SUPPLIED, REJECTED, ETC. * 79 
 
 particular expression would impute to bim. However capricious 
 may be the intention which is clearly and unequivocally expressed, 
 every Coui't is bound by it, unless it be plainly controlled by other 
 parts of the instrument;" per Leach, V. C, Hume v, Rundell, 2 
 S. & S. 177. 
 
 Rule 17. — Omitted words may be supplied, repugnant words 
 may be rejected, words may be transposed, and false grammar or 
 incorrect spelling may be disregarded. See j^ost, p. 240; Tunstall 
 V. Trappes, 3 Sim. at p. 312: Re Denny, Ir. Rep. 8 Eq. 427, if 
 the intention of the parties sufficiently appear from the context. 
 
 '■^ Si obligation adincongrue Latynuncore c'est honf^ Bro. Abr., 
 Obligation, 71. 
 
 "Neither is it necessary, that the English or Latin, whereby a 
 deed is made, be true and congruous; for false and incongruous 
 Latin or English seldom or never hurteth a deed; for the rules 
 are, Falsa orthograjMa non vitiat chartam. Falsa grammatica 
 nan vitiat concessionem f Shep. Touch. 55. 
 
 " It is a rule of law, mala grammatica non vitiat chartam, 
 neither false Latin nor false English will make a deed void when 
 the intent of the parties doth plainly appear. It is therefore held 
 that two negatives do not make an affirmative when the apparent 
 intent is contrary. And it is another rule of law falsa orthogra- 
 phia non vitiat concessionem ;^^ Shep. Touch. 87. 
 
 * " Falsa grammatica non vitiat concessionem : item, ille [ * 79 ] 
 numerus et sensus abbreviationum accipiendus est id con- 
 cessio non sit inanis. And therefore if the King grants tof ilV 
 maner^ de D. et C. if it is but one manor in truth, then these ab- 
 breviations of tof ilV maner'' shall be taken in the singular number 
 totum illud manerium: and if they are in truth two distinct 
 manors, then these abbreviations shall be taken in the plural 
 number tola ilia maneria, or otherwise the grant will be void. 
 . . . . So in the conusance of a fine, false Latin or incongruity 
 shall not hurt the fine; " The Earl of Shrewsbury's Case, Kep. 
 47b. 
 
 "It is not rare, say they, in our books that words shall be 
 transposed and marshalled so as the feoffment or grant may take 
 effect. As if a man in the month of February make a lease for 
 years reserving a yearly rent payable at the feasts of St. Michael 
 the Archangel and the Annunciation of our Lady, during the 
 term, the law in this case of reservation shall make transposition 
 of the feasts, viz., at the feasts of the Annunciation and of St. 
 Michael, that the rent may be paid yearly during the term. And 
 so it is in case of a grant of an annuity; " Co. Litt. 217b. The 
 cases referred by Coke are Hill v. Grange, 1 Plow. 171, and Ttie 
 Abbot of Osenay's Case, 10 E. 3, 43, PI. 4. 
 
 115
 
 * 80 WOKDS SUPPLIED, OMITTED, ETC. 
 
 " Words shall be transposed to support the intent of the parties ;" 
 Comyn's Digest, art. " Paroles," A. 21. 
 
 Examples. — Words supplied (6). — The word "pounds " which 
 had been omitted in the obligation of a bond, was supplied: 
 Lord Tenterdeu, C. J., says, " The obligatory part of the bond 
 purports that the obligor is to become bound for 77UO. No 
 species of money is mentioned. It must have been intended that 
 he should become bound for some species of money. The ques- 
 tion is, Whether from the other parts of the instrument 
 [ * 80 ] we can collect what was the species of * money which 
 the party intended to bind himself to pay ? " Coles v. 
 Hulvie, 8 B. & C. 568. 
 
 The name of the grantor which was omitted in the operative 
 part of the deed was supplied from the context in Lord Say and 
 Seal's Case, 10 Mod. 468; S. C. 4 Br. P. C. 73; Tretheicy v. El- 
 lesdon, 2 Vent. 141, and Dart v. Clayton, 4 N. R. 221; see 3Iillx. 
 Hill, 3 H. L. C. 828. 
 
 A name omitted from the premises was supplied from the hab- 
 endum in Bustard v. Coulter, Cro. El. 902; Butler v. Dodtofi, 
 Gary's Rep. in Ch. 122. See also Co. Lit. 7a. 
 
 A name wrongly stated in the premises was corrected from the 
 habendum in Spyve v. Topham, 3 East, 115. Perhaps it may be 
 considered that in this case the words in the premises were re- 
 jected for the repugnancy. 
 
 By a post-nuptial settlement reciting an intention to make 
 further provision for the wife and the children of the marriage, 
 certain sums of stock were settled on trust for the wife for life and 
 after her death " in trust for all and every the child and childi-en 
 of the marriage who being a son or sons have or hath already at- 
 tained or shall hereafter live to attain the age of twenty-one 
 years," as tenants in common and their respective executors "and 
 if there shall be but one such child the whole shall be in trust for 
 such one or only child and his or her executors and administra- 
 tors." The maintenance clause spoke of " his or her maintenance, 
 &c., until his or her share should be vested, or he or she pre- 
 viously die." Held, that the words "or being a daughter or 
 daughters shall attain twenty -one," mast be inserted in the trusts 
 for children. Re DanieVs Settlement Trusts, 1 Ch. D. 375. 
 
 A father, P., by deed of 22nd February, 1836, appointed £5000 
 to his daughter O. for her separate use, with power to appoint, 
 &C- On the day following the daughter appointed £1000 to her 
 husband and £4000 to trustees upon trusts for the benefit of her- 
 self, her husband and children. P. also made appointments of 
 £5000 to each of his daughters E. and H. On 22 November. 
 
 (6) See also cases cited 2 Sni. L. C. (8th ed.) ."^42; and also Gwyn v. Neath 
 Canal Co., L. E. 3 Ex. 215: FliqM v. Lake, 2 Bing. N. C. 72; Wall v. Bright. 
 1 Dr. & Walsh, 1; Sugd. Law P., 92; Wiqht v. Dickson. 1 Dow, 141; Smith v. 
 Oakes, 14 Sim. 122; Be Estate of C. Blake, 19 W. R. 765. 
 
 116
 
 REPUGNANT WORDS. * 82 
 
 1S42, P. by deed poll reciting that he had appointed 
 £5000 to each of E. and K, "and *also the sum of [*8l ] 
 £5000 in favour of O.,*' appointed £5000 to M. for life, 
 remainder as to one-third to E., as to another third to H., and 
 the remaining third to " O. the wife of R. and her children upon 
 the trusts and subject to the same provisions as are hereinbefore 
 declared of and concerning the said sum of £5000 hereinbefore 
 appointed unto or for the benelit of the said O., wife of R, or as 
 near thereto as the nature of circumstances will admit." Held 
 that the deed must be construed as if the words '" stated or men- 
 tioned to have been " had been inserted after the words " as are 
 hereinbefore," and as if the words " and her children " had been 
 omitted; Hanbury v. Tyrell, 21 Beav. 322. 
 
 See words supplied from the context, in marriage articles, 
 Kentish v. Newman, 1 P. W. 234; Tarcjus v. Pugef, 2 Yes. 194; in 
 a will, Greenwood v. Greenwood, 5 Ch. D. 954; Be Redfern, 6 Ch. 
 D. 133; Spalding \. Spalding, Cro. Car. 185. Words supplied in 
 a settlement; Sniith\. Oakes, 14 Sim. 122. 
 
 Repugnant icords rejected (c). — A lease for one year was pro- 
 duced with many stipulations, most of which were wholly inap- 
 plicable to such a tenancy; on the face of the lease it appeared 
 to have originally contained words creating a tenancy from year 
 to year, but these had been struck out : it was held that all the 
 terms inapplicable to a tenancy for a single year must be con- 
 sidered as expunged or as only applicable in case the tenancy 
 should continue; Strickland \. Maxwell, 2 Cr. & M. 539. 
 
 A separation deed provided that all outgoings in respect of 
 certain estates should be paid by J., the husband, up to a certain 
 day, and that afterwards they should be paid by M. the wife, 
 " and that J. shall be indemnified therefrom and from all the 
 present debts and liabilities of t/." Held that as the 
 words in italics made the clause inconsistent * with itself, [ * 82 ] 
 they ought to be disregarded; Wilson v. Wilson, 15 Sim. 
 487. 
 
 Condition of a bond " To deliver 35,000 tiles to the value of 
 £144 at 15s. and 6d per 1000." It will be seen that 185,000 tiles 
 would have amounted to £144. The mistake was corrected on 
 the ground that the sum of money and not the number of tiles 
 was the thing material; Holmes v. Ivy, 2 Show. 15. Where the 
 condition of a bond was 'if the obligor did not pay, &c.,' the 
 Court rejected the word 'not;' Anon:, cited j»e»' BuUer, J., Bache 
 
 (c) Many examples of this will be found, post, Cliapter YIII., IxAccr- 
 EAciics, and Chapter XII., Parcels. Bac. Abr. tit. Lca.ses and Terni.s for 
 Years (L.) .3, vol. 4. p. H:'.6 f7th ed.), cited arg. Jforfon v. Woods, L IJ. 1 Q. 
 B. 299; 2Sra. L. C. if^th ed.) 541, .')42; Fearne, Cont. Kern. 2r)2: Ilrmlln/ v. 
 Peixoto, 3 Ves. 324: Tud. L. C. Keal P., 9G2; (hmn v. Neath Canal Co., h. K. 
 3 Ex. 215; Hragood \. Hone, Cro. Car. 3fJfi; Bmh v. U'atlcinn, 14 Beav. 425; 
 Re Strand MaMc Hall Co., 35 Beav. 153. Words in a covenant rejected. Bdcher 
 v. Hikes, 8 B. &C. 1^5. 
 
 117
 
 * 83 TRANSPOSITION OF WUKUb. 
 
 V. Proctor, 1 Dougl. at p. 384. Covenant by B. ' that notwithstand- 
 ino- anything done by him it should be lawful for A. to receive 
 certain moneys without interruption by B.' held, that the words 
 ' notwithstanding,' &c., were repugnant to the latter part of the 
 covenant, and must be rejected; Belcher v. Sikes, 8 B. & C. 185. 
 
 Transpositioyi of clauses (d). — Conveyaoce by marriage settle- 
 ment to A., the intended husband, his heirs and assigns, and in 
 case A. should die leaving one or more son or sons on the body 
 of his intended wife to be begotten, the elder o'f such sons and 
 the heirs male of his body being always preferred to take place 
 before the younger .... with full liberty to the said A. " to 
 make such reasonable provision as he should think fit for 
 such younger child or children," and in case the said A. 
 should die leaving no son and that there should be one or 
 more daughters, then to such daughter or daughters if more than 
 one, on their attaining their respective ages of twenty one years, 
 their heirs and assigns, share and share alike. Held, that as the 
 intention of the settlement was evidently to provide for all the 
 children, as well daughters as sons, the Court would effect that 
 intention by transposing the clause creating the power and that 
 containing the limitation to the daughters, whereby the words 
 " such younger child or children " would include both sons and 
 daughters; Fenton v. Fenton, 1 Dr. & Wal. 66. 
 
 Where in a marriage settlement a term for securing younger 
 children's portions was placed subsequent to the estates tail of 
 the sons, it was helped in equity. But query, was thjs a case of 
 ecc^rwisic evidence? Uvedalev. Halfpenmj,'2V.^\.lhO. 
 
 False Grammar (e). — A Bond is made in these words : 
 [ *83 ] "Know all Men that *I Philip Goole do stand bound" 
 {not said to ichom) " in the simi of £16, and is to be paid 
 to the said John Games the elder's executors; for which pay 
 ment to be made I do bind me, my heirs and executors " {hut not 
 said to u-hom). The condition, after long and senseless recitals, 
 was : " If therefore Philip Goole shall pay to John Games the 
 elder's executors within one year after his death, the bond shall 
 be void." Held, that either the words " John Games the elder's 
 executors," should be disjoined and be read " John Games the 
 elder his executor " and to be taken " John Games the elder and 
 his executors," or that the words "the elder's executors" should 
 be wholly rejected as void, and the words be read " to be paid to 
 John Games" only; Langdonw. Goole, 3 Lev. 21. 
 
 Debt on a bond conditioned to pay £7 by 2s. a week till the £7 
 
 (d) Parkhtirst v. Smith, Willes, 332; Gwyn x. Neath, &c.. Canal Co., L. R. 
 3 Ex. 214: Atto v. Hemmings, 2 Bulstr. 282. The law will rather invert the 
 words than pervert the sense. " Bacon's Law Tracts, Case of Eevocation of 
 Uses, cited 2 Sm. L. C. (8th ed.) 541. , 
 
 (e) 2 Sm. L. C. (8th ed.) 540, citing Chapman v. Dalton, Plowd. 289; 1 
 Inst. 225a; Butler v. Wigge, 1 Will. Saund. 64. 
 
 118
 
 INCORRECT SPELLING. * S4 
 
 -were paid, and if be failed of the payment of the 2s. at any of 
 the days ^vberein it ought to be paid, the obligation to be void or 
 else to remain in full force. The obligor omitted to make the 
 payment of the 2s. on one of the days on 'which it ought to be 
 paid: held, that the condition might be read distributively, by 
 referring particulars to particulars, viz., that if he paid the £1 
 the obligation should be void: but if he failed of paying the 2s. 
 at any of the days, it should remain in force; l'e^»o/^ v. Alsop, 1 
 Lev. 77. 
 
 Incorrect spelling clisregarded. — Incorrect spelling disregarded: 
 '•Octagenta," " Septemgeuta," " Sewtene Pounds," cited James 
 Osborn's Case, 10 Rep. 133a; "qaadrans," Cromicellv. Grunsden, 
 Salk. 462; S. C. 1 Ld. Ray. 335: 5 Mod. 278; "Tenerie and Ob- 
 ligarie," Dodson v. *Kaijes, Yelv. 193; "nobules" for "nobilibus," 
 Matthew v. Purchins, Cro. Jac. 203; "threty-two ponds," Hid- 
 bert V. Long, Cro. Jac. 607; " Joaem," without any dash over it, 
 for " Johannem," " quinginta," Downs v. HatJm-aite, Cro. Car. 
 418; "Terdecem," Hopehill v. Searle, Cro. Car. 386; "Septuagin- 
 tis"for " Septingentis," Walters. Pigot, Moore, 645; see also 
 Cro. El. 896; " Octogessim," Moore, 864; see other cases collected 
 2 Rolle, Ab. p. 146, et seq. tit. "Obligation." 
 
 * Cases where the badly spelt word was held to avoid [ * 84 ] 
 the deed: "teneri in terengentate liberis," Hills v. Cooper, 
 Cro. Jac. 603; "Octigent," Fitzhughes' Case, Hob. 19; "quim- 
 quagent," Parry v. Dale, Yelv. 95. 
 
 See as to the effect of bad spelling, whereby it is doubtful what 
 is meant, Fielder v. Tovy, Sty. 241, 257. 
 
 119
 
 86 EXPRESSION OF WORDS IMPLIED BY LAW. 
 
 [*85] *CHAPTER VII. 
 
 MISCELLANEOUS, GENEEAL EULES. 
 
 The expression of that ivhich is implied has no effect, except that 
 it may alter the construction of a subsequent clause : Express 
 provisions exclude implication : Repugnant clauses : Words to 
 be taken against the person using them, except in the case of 
 the King: Election by grantee. 
 
 Rule 18. — Expression of implied ivords. — The expression of a 
 clause that the law implies has no efiPect. Expressio eorum quce 
 tacite insunt nihil operatur. Expressa non prosunt qucB non ex- 
 pressa p>roderunt. Co. Lit. 205a; 2nd Inst. 365; 4 Eep. 73b.^^ 
 See per Eomilly, M. H., Boldero v. East India Co., 26 Beav,, at 
 p. 342. 
 
 Examples. — " If a gift in tail be made to a man and to the 
 heirs of his body, and if he die without heirs of his body, that 
 then the donor and his heirs shall re-enter, this is a void condi- 
 tion; for when the issues fail, the estate determineth by the ex- 
 press limitation, and consequently the adding of the condition to 
 defeat that which is determined by the limitation of the estate is 
 void, and in that case the wife of the donee shall be endowed;" 
 Co. Litt. 224b. 
 
 Reservation of rent in a lease for years to the lessor during his 
 life and his assigns; held, that the reservation to the assigns had 
 no effect, because the addition of assigns is implied by law; Sury 
 V. Cole, Latch, 44; S. C. (sub nom. Sury v. Brown) ib. 99, 255; 
 see Watton & Edivins' Case, cited 1 Vent. 162. 
 
 "If lands be letten to two for term of their lives, et eorum 
 
 [ * 86 ] alterius diutius viventi, and one of them granteth * his 
 
 part to a stranger, whereby the jointure is severed, and 
 
 dyeth, here shall be no survivor, but the lessor shall enter into 
 
 the moiety, and the survivour shall have no advantage of these 
 
 ^' Grammatical construction is not to be adhered to when a contrary intent 
 is manifest. Hancock r. Watson, 18 Cal. 137; Jackson v. Lopping, 1 Wend. 
 388; Sprague v. Edwards, 48 Cal. 239. 
 
 120
 
 EXPRESSION OF WORDS IMPLIED BY LAW. * 87 
 
 words et eonnn aUen'us diutius vivenii. for two causes. First, for 
 that the jointure is severed. Secondly, for that those words are 
 no more than the Coramon Law would have implied without 
 them." Co. Lit. 191a. 
 
 "The clause of distress (in a lease) is no otherwise to be ex- 
 tended than as the grantor gives it; and therefore if the clause 
 were, ' if the rent be behind, being demanded at another place 
 besides the land, or of his person, then he may distrain,' clearly 
 then he could not distrain without such a demand made first, for 
 there the demand is other than the law requires. But where the 
 clause is no more but 'if the i-ent be behind being lawfully de- 
 manded, then he may distrain,' it is no more than the law speaks; 
 and therefore the distress implying a demand and distress, one 
 before another, by operation of law satisfies it;" Browne v. Diin- 
 nery, Hob. 208. 
 
 Ejectment on a proviso for re-entry contained in a lease on the 
 rent being in arrear for 21 days, being lawfulhj demanded. The 
 Act 4 Geo. 2, c. 28, provides that when half a year's rent is in 
 arrear, and the lessor has a right by law to enter for non-payment, 
 he may without a formal demand or entry sue in ejectment. Held, 
 there being five quarters in arrear, that it was not necessary to 
 make a demand of the rent on the premises before bringing the 
 ejectment. Dampier, J., said: " The right to re-enter grows out 
 of the stipulation of the parties. A demand is necessary as a 
 consequence at law, and there was the same necessity for a de- 
 mand before the statute whether the lease contained the words 
 lawfully demanded or not. Therefore the maxim applies;" Ex- 
 pressio, &c. ; Doe d. Scholefield v. Alexander, 2 M. & S. 525. 
 
 Feoffment reserving rent to the feoflPor, " and if it happen the 
 aforesaid rent to be behind in part or in all, that then it shall be 
 lawful for the feoffor and his heirs to enter." It is not 
 necessary to insert the power of re-entry * because the [ * 87 ] 
 feoffor and his heirs can do so by force of the reserva- 
 tion. '■'■Quoe dubitationis causa iollendce inseruntur, communem 
 legem non Icedunt. Et expressio, cfc." Liti ss. 330, 331;* Co. 
 Lit. 205a. 
 
 AVhere a mortgage-deed expressly secured the mortgagees' ex- 
 penses and interest: Doe d. Scridon v. Snaifh, 8 Bing. 146; iines 
 for renewals if paid by the mortgagee: Wroiighton v. Turtle, 11 
 M. & W. 561; the expenses incurred by the mortgagee in keep- 
 ing up a policy of life insurance comprised in the security: Law- 
 rence V. Bosto)i, 1 Ex. 28; the payment by the mortgagor of all 
 taxes on the mortgaged property: Doe d. Merceron v. Bragg, 8 
 Ad. & El. 620; it was held, that as in each of these cases the 
 moneys expended by the mortgagee for those purposes would 
 have been charged by the law without any express words, the rule 
 applied, aud that consequently the deed did not ri([uire any ad 
 valorem stamp in respect of tbe m<moys so expended. 
 
 121
 
 * 88 EXPRESSION OF WORDS IMPLIED BY LAW. 
 
 Unnecessary ivords ajDparently restrictive. — The rule is applied 
 where the words state only part of that which the law implies, so 
 that they appear at first sight to be restrictive. 
 
 Examples. — Montague asked this question: — A man makes a 
 lease for term of years by indenture, and the lessor covenants and 
 grants to the lessee, " that he shall have thorns for hedges grow- 
 incT upon the land, by the assignment of the bailiff of the lessor, 
 and necessary fuel to burn in his house." First, whether the 
 lessee can take thorns tvithout the assignment of the bailiff, or 
 not? Secondly, if by the copulative (and necessary fuel) that 
 shall refer to the assignment of the bailiff, or not? For the first, 
 it seemed to Baldwin and Fitzherbert, that the lessee, by virtue 
 of his lease, may well cut thorns without assignment by the order 
 of the law; for by our books the law is, that a termor shall have 
 loppings and shrowdings of trees for necessary fuel ; and then to 
 insert these words, " that he shall have fuel by the assignment of 
 his bailiff" is void, for what the law gives him by impli- 
 [ * 88 ] cation in the lease, that * he may take without assign- 
 ment. For, if I lease to one, two acres of meadow, and 
 that it shall be lawful for the lessee to cut the grass at the assign- 
 ment of the lessor, notwithstanding these words, the lessee may 
 cut the grass. But if the other covenant on his part be in a 
 negative^ " that he will not take thorns without the assignment 
 of the lessor," now that is a good covenant, and if he do contrary 
 to that, action of covenant well lies. Or if it were a condition 
 which is a negative in law, as, " proviso that he shall not take 
 thorns without, &c.," now if he do that, clearly the lessor may 
 enter, &c. But in the other case, it is a grant on the part of the 
 lessor in the affirmative. Wherefore, &c.: Shelley e contra; for 
 when a man takes a lease out of the order of the law, viz., by 
 special words and terms, hfe shall have it as if the lessor spoke 
 the words, and no otherwise. Wherefore here he hath accepted 
 the lease by such words, " that he shall have thorns by the assign- 
 ment of the bailiff; " that is as much as to say, he shall not have 
 them without the assignment. Wherefore, &c. And as to the 
 other point, it seemed to him that this copulative (and) should 
 make the fuel pass by assignment, &c.; Dyer, 19b, pi. 115. 
 
 Feoffment by D. of certain closes reserving unto D. and his 
 heirs all the coals, with liberty for D. his heirs and assigns at all 
 times thereafter, " during the time that D. and his heirs should 
 continue owners of F.," to sink pits, &c. Held, thatD. could get 
 coals under the reservation in fee, and that the express liberty 
 was not restrictive of that which would be implied to get the 
 coals; Cardigan v. Armitage, 2 B. & C. 197. 
 
 S. bargains and sells to (j. all the trees growing in and on a 
 manor, and covenants that G. might within five years sell and 
 
 122
 
 EXPRESS PROVISION EXCLUDES IMPLICATION. * 89 
 
 carry away the trees, &c. Held, that G. might cut and carry 
 away the trees after the five years, as the power to fell them im- 
 plied by the grant cannot be restrained by an express ]iower that 
 the grantee had before; Stiikeley v. Butler, Hob. 168, t^ e p. 173. 
 
 * Bat the expression of unnecessary words may alli'r [ * 89 2 
 the construction of a subsequent clause. 
 
 " Though the law say, that when a man grants lands, he grants 
 the underwoods inclusively, and so when he grants his house, he 
 grants all the several rooms in the house, yet 33 & 34 Eliz., in 
 the King's Bench, between Kenisham & Redding, the case was, 
 that the Queen leased the Parsonage of Greenwich, with all the 
 lands and underwoods expressly thereunto belonging, exceptis 
 omnibus grossis arboribus boscis et maeremiis (a). The opinion 
 of the court was that the exception as to underwoods was void. 
 But they held that the exception was only to be extended to great 
 woods. So is the case 9 Eliz. 265, of a lease of a house and 
 shops, excepting the shops, which proves that the rule ' expressio 
 eorum,^ &c., is to be understood having reference to itself only, 
 and not having relation to other clauses." Stukeley v. Butler, 
 Hob. see p. 170. 
 
 Rule 19. — An express provision excludes implication. — Desig- 
 natio unius est exclusio alterius. Co. Litt. 210a. Semper ex- 
 pressum facit cessare taciturn. Co. Lit. 183b. ; 210a. See Rule 
 152, post, p. 424.2* 
 
 " Where parties have entered into written engagements with 
 expressed stipulations, it is manifestly not desirable to extend 
 them by any implications: the presumption is that, having ex- 
 pressed some, they have expressed all the conditions by which 
 they intend to be bound under that instrument;" per Lord Den- 
 man, C. J., Aspdin v. Atistin, 5 Q. B. 684. 
 
 " If authority is given expressly, though by affirmative words, 
 
 {a) Boscufi comprises ])oth timber and underwood; tmrremiuin means timber 
 fit for building. See Co. Lit. 4b; Du Cange. 
 
 ^* A general conveyance of a right implies the conveyance of all the 
 powers incident to the exercise of the right. But where, after general terms 
 of conveyance, specifications are made indicating that the right is to be exer- 
 cised in a particular manner, the grantee is ordinarily conlined to the modes 
 specified. 1 Kent. Comm. Part 2, Lect. 12; 2 Story' Const. 429, 519. This 
 is of coui"se subject to the general princii)k' that the intention as shown by 
 the whole instrument is to be taken into consideration; and if the specifica- 
 tion is introduced by way of illustration, and not of limitation, it will not 
 restrict the prior general terms. ^ Whart. Cont. Sec. G74; Chase v. Bradley, 
 ?.r, Me. .^.31; Nettleton v. Billings, 1:5 N. If. 4r)(); Talbot v. Heath, 12fi Mass. 
 J:{9; Allison's Appeal, 77 Pa. St. 221; Hopkins v. Sanford, :?H Mich. Oil; 
 Dr.ike v. Vorse, .'J2 Iowa, 417; Sanford v. Dunn, 47 Wis. G15; Wheeler v. Gal- 
 livan, 10 Neb. :{i:}. 
 
 123
 
 * 91 EXPRESS PROVISION EXCLUDES IMPLICATION. 
 
 upon a defined condition, the expressiun of that condition ex- 
 cludes the doing of the act authorized under other circumstances 
 than those so defined;" per Willes, J., North Stafford Steel, &c., 
 Co. V. Ward, L. R. 3 Ex. 177. 
 
 Examples. — Parcels. — Conveyance of an iron foundry 
 [*90] *and two dwelling houses and the appurtenances, to- 
 gether with the fixtures in the dwelling-houses: Held, 
 that the fixtures in the foundry did not pass; Hare v. Horton, 5 
 B. & Ad. 715; Mather v. Eraser, 2 K & J. 536. 
 
 Where the property is conveyed both by a general and specific 
 description {Chnffiths v. Penson, 1 N. E. 330, S. C. 9 Jur. N. S. 
 385; (see this case stated j^ost, 161); Lord North v. Bishop of 
 Ely, cited 1 Buls. 100; Doe d. Meyrick v. Meyrick, 2 Cr. & J. 
 223), only that particularly described will pass; see jwst. Chapter 
 XII., Parcels. 
 
 Habendum. — " If a lease be made to two, habendum the one 
 moiety to the one, and the other moiety to the other, the haben- 
 dum doth make them tenants in common; and so one part of the 
 deed doth explain the other, and no repugnancy between them, et 
 semper expressum facit cessare taciturn;''^ Co. Lit. 183b. See 
 post, 219. 
 
 Covenant. — A trustee mortgaged lands and covenanted for pay- 
 ment out of the moneys which should come to his hands as trus- 
 tee: Held, that he was not personally liable; Mathew \.' Black- 
 more, 1 H. & N. 762.. The court said (p. 771-772): "The ques- 
 tion is, whether a contract by parol can be implied for the repay- 
 ment where there is an express covenant under seal relative to it. 
 The rule of law, as well as of reason and good sense, is, ^ex- 
 pressum facit cessare taciturn,'' and where there is an express 
 covenant that the defendant shall, out of the trusts funds which 
 shall come to his hands and the personal estate of his testator 
 (which was not included in the mortgage security) pay the sum 
 advanced, we think it impossible to conclude that at the same 
 time he made himself absolutely liable for the payment of it 
 simpliciter; and at all events to do so would be to create a con- 
 tract by implication diiferent from, and much more onerous than 
 that entered into by the express words used, and this against a 
 trustee having no personal interest whatever in the transaction." 
 See post 418. 
 
 The covenants implied by the word demise are restricted by an 
 express qualified covenant for quiet enjoyment; Noke's Case, 4 
 Rep. 806; Merill v. Erame, 4 Taunt. 329; Line v. Stephenson, 5 
 
 Ring. N. C. 183. See po.s^ 424; Rule 152. 
 [ * 91 ] * Policy. — A policy of life assurance was entered into, 
 founded on a written declatation of the assured, which 
 was agreed to be the basis of the contract between the parties, 
 and which contained a proviso that " if any statement in the 
 declaration (which declaration should be considered as much a 
 124
 
 REPUGNANT CLAUSES. * 92 
 
 part of that policy as if the same had been actually set forth 
 therein) was nntrue, or if, &c., then the policy should be void." 
 The proposal and declaration contained the usual particiilars, and 
 proceeded as follows: " I do hereby declare that the above-written 
 particulars are correct and true throughout, and I do hereby agree 
 that this proposal and declaration shall be the basis of the con- 
 tract between me and the office, and if it shall hereafter appear 
 that any fraudulent concealment or designedly untrue statement 
 be contained therein," then the policy to be void: Held, that the 
 policy was not avoided by an untrue statement in the declaration 
 unless designedly untrue; Fowkes v. Manchester & London Life 
 Assurance and Loan Association, 3 B. & S. 917. 
 
 Rule 20. — Repiignancies. — Where there are two repugnant 
 clauses in a deed, the first shall be received and the second re- 
 jected, unless there is a special reason to the contrary; Shep. 
 Touch. 88. See also Rule 16, ante, p. 78, as to rejecting repug- 
 nant words. ^ -ur^^^c^ y» Cu^f„^.U^ H^^ o.a.^oa 
 
 "When there are two clauses in a deed, of which the latter is 
 contradictory to the former, there the former shall stand; as in 2 
 Ed. 2, feoffments and fait s, 24 (a). . 4 H. 6, 22 of a gift in frank- 
 marriage, rendering rent, the reservation is void;" per Nicholas, 
 B., Cother v. Merrick. Hard. 94; see to the same effect, per Lord 
 Mansfield, C.J., Doe d. Leicester v. Biggs, 2 Taunt. 113; 2 Black. 
 Com. 381, citing the case in Hard. ; see also per Kindersley, 
 V.-C, Re Webber, 17 Sim. 222. S. C. better reported 19 L. J. N. 
 S. Ch. 445; and see Bush v. Watkins, 14 Beav. 425; Re Strand 
 Music Hall Co., 35 Beav. 153. In Surry'' s Case, Latch, 264, it is 
 said: " When there is repugnance between the words, the 
 law prefers the first; 2 Ed. 2, feofi'ments, 94. * So that [ * 92 ] 
 if a lease is made reserving annually during the term 
 £10 to the lessor for twenty years, this is a good reservation for 
 the whole term. So in 5 Rep. 19, a lease to two, habendum 
 jointly and severally, they are joint tenants." 
 
 Examples. — A lessee for 100 years made a lease to Thomas 
 Seaman for forty years if he should so long live; and afterwards 
 he leased the same land to John his son, habendum after the term 
 of Thomas for twenty-three years, to be counted from the date of 
 these presents : Held, that the lease to John began, not from the 
 date, but from the end of the term of Thomas, because when by 
 
 (a) The reference is wrong. 
 
 ^* In wills the rule is that of incompat ible ])rovisions the last is lo jirevail, 
 but the common rule as to deeds is that the lirstof two incompat il)les is to 
 prevail a<i;ainst the second in all cases in which the incomjiatihility is not 
 such as to make the dncumcnt insensible. It is othciwisc; when Ww sc(!ond 
 limitation only qualities the first: Cluise v. ISradley, 'JG Me. rtWH. .Jackson v. 
 Ireland, 3 Wend. (N. Y.) 99; Butterfield v. Cooper, 6 Cowen (N. Y.), 481. 
 
 125 •
 
 * 93 REPUGNANT CLAUSES. 
 
 the first words of the limitation it is a good lease to begin after 
 the term of Thomas, it shall not be made void by an}' subsequent 
 words; Sea-mail's Case, Godb. 166. 
 
 Surrender of copyholds by J. R. to the use of A. and B. "this 
 surrender not to stand and be in full force until after the death 
 of J. R." The latter words were rejected for the repugnancy; >Sea- 
 good V. Hone, Cro. Car. 366. 
 
 Conveyance to A. her beirs and assigns, habendum to A. and 
 her assigns during the life of G. ; G. was A.'s heir-at-law: Held, 
 that on A.'s death G. took as special occupant, and that the land 
 did not pass to A.'s executors by the words in the habendum; Doe 
 d. Timmis v. Steele, 4 Q. B. 663; see post, Chapter XIV., Haben- 
 dum. 
 
 "It being then impossible to affix a meaning to the words;" 
 sterling lawful money of Ireland, "taken altogether, I must deal 
 with them according to the rule of law as to construing a deed, 
 which is, if you find that the first words have a clear meaning, 
 but those that follow are inconsistent with them, to reject the 
 latter. And it appears to me that there is no possible method of 
 dealing with this set of words other than by saying that the 
 words "one yearly rent-charge or sum of £1000 sterling lawful 
 money," must be taken to stand by themselves, and the words 
 "of Ireland" must be rejected;" per Shadwell, V, C, Cope v. 
 Cope, 15 Sim. 126. 
 
 [ * 93 ] The rule is one which is only applied in the last * re- 
 sort, if a Judge can find nothing else to assist him in 
 determining the question. See per Romilly, M. R., Bush v. Wat- 
 kins, 14 Beav. at p. 432. 
 
 It is a mere rule of thumb, as Jessel, M. R., calls the converse 
 rule applied to wills : see Re Byicater, Byicater v. Clarke, 18 Ch. 
 D. pp. 19-20, and per James, L. J., ih. at p. 24. 
 
 It appears that in most of the cases, the true reason for re- 
 jecting the latter words, was that they were inconsistent with the 
 general scope of the deed. In Cother v. Merrick, the question 
 was whether a lease by a tenant in tail, where the reservation was 
 to his heirs and assigns, was good within the statute of 32 H. 8 
 to bind the issue in tail, who was not the heir of the lessor; and 
 the case was really decided upon the fact that the word " heirs " 
 might be held to mean "heirs in tail." In the ease of frank 
 marriage the reason for the decision appears to be that a gift in 
 frank marriage cannot carry rent for four generations; and in 
 Doe d. Leicester v. Biggs, it was merely a ditcum. In Cope v. 
 Cope,^ the construction really turned upon the whole tenor of the 
 deed. 
 
 This view of the nature of the rule, is supported by the fol- 
 
 126
 
 CONSTRrCTION IN FAVOUR OF CiRANTEE. * 94 
 
 lowincr remarks of Wilde, C. J., in delivering judgment in Walker 
 V. (ril(\s, C. B. 702 : — "As the different parts of the deed are in- 
 consistent with each other, the question is, to which part effect 
 ought to be given There is no doubt, that, applying the approved 
 rules of construction to this instrument, effect ought to be given 
 to that part which is calculated to carry into effect the real in 
 tention, and that part which would defeat it should be rejected; 
 and so construing the deed, the Court is of opinion that the latter 
 part, importing a demise, cannot have that effect, without defeat- 
 ing the intention of the parties." 
 
 Rule 21. — The words in a deed shall be construed most 
 strongly against him who uses them, if so doing works no wrong, 
 unless a different construction appears from the context to be 
 necessary. See Rule 66, post. p. 217; per Arden, M. R., Swann 
 r. Fonnereau, 3 Ves. at p. 48.^" 
 
 * This rule is often misunderstood : it does not mean [ * 94 ] 
 that the words are to be twisted out of their proper mean- 
 ings, but only that where the words may properly bear two mean- 
 ings, and where, after we have applied evidence, whether extrinsic 
 or intrinsic, admissible under the foregoing rules, we are still un- 
 able to determine in which of those meanings they were used, 
 we must take them in the meaning most disadvantageous to the 
 person who uses them, unless the adoption of that meaning would 
 work wrong. See jjer Lord Abinger, C. B. ; Stephens v. Frost, 2 
 Y. & C. Ex. 309 : see pos^ Rule 154, p. 425.'^ 
 
 •"* Whea a party introduces an expression having two meanings, one 
 larger, the other more limited, he cannot afterwards set up the narrower 
 construction. Cutler v. Tufts, '.i Pick. (N. Y.) '^72; Deblois v. Earle, 7 K. I. 
 2(i; White r. Smith, 33 Pa. St. 186. Thus where an insurance policy emanat- 
 ing from the insurers, contains ambiguous words, or stipulations or excep- 
 tions, .justly capable of two meanings, that meaning is to be adopted which 
 is most favorabh; to the insured. Kann v. Ins. Co., M N. Y. 3KiJ; Allen r. 
 Ins. Co., 85 N. Y. 473: West Ins. Co. r. Updegraff 43 Pa. St. 3.50; Franklin 
 Ins. Co. V. Brock, 57 Pa. St. 74; Ins. Co. v. Slaughter, 12 Wall. 404; Bart- 
 lett i\ Ins. Co., 40 Me. 500; Wiison v. Ins. Co., 4 li. I. 150; North Am. Ins. 
 Co. v. Taenger, 03 111. 4(i4. So a deed poll being ambiguous in its terms, 
 and having two e(puxlly probable; meanings, will be construed most strongly 
 against th(! grantor. Bceson i: Patterson, 30 Pa. St. 24. The same principle 
 is extended 1o all stipulations. " It is a well-known rule in the construction 
 of private grants, if the meaning of tlie words be doubtful, to coi.striie 
 them most strongly against the grantor." Story, .1., in Charles J>iver Bridge 
 V. Warren Bridge, 11 Peters, 5SJ); lyincoln r. Wilder, 2!) l\Ie. 10!); Cocheco 
 Co. r. Whittier, 10 N. H. 305; Mills r. Catlin, 22 Vt. OH; Mclviu v. Proprie- 
 tors, Mete. (Ma.ss.) 27. 
 
 ■" The rule that words are to be con.strued most strongly against tho.se who 
 use them applies only in cases where mon; than one ))i()bal)le construclion 
 can be given to the contested clause. No construction in itself improbable, 
 can be adopted by force of this, or any otJier technical rule of consi ruction. 
 
 127
 
 * 95 CONSTRUCTION IN FAVOUR OF GRANTEE. 
 
 The reason for the rule given in Cruise, Dig. Tit. 32, Ch. 20, s. 
 13, is " That the principle of self-interest will make men suffi- 
 ciently careful not to prejudice themselves by using words of too 
 extensive a meaning, and all manner of deceit is hereby avoided 
 in deeds ; for men would always affect ambiguous expressions, if 
 they were afterwards at liberty to put their own construction on 
 them;" see to the same effect, Shep. Touch. 87. 
 
 The reader will tind this rule laid down repeatedly in works of 
 authority and in judicial decisions (b), though it is perhaps right 
 to point out, that some at least of the decisions which purport to 
 rest on the rule, have but little to do with it, and that the exist- 
 ence of the rule is denied by Jessel, M. E. ; Taylor v. CorjDoration 
 of Si. Helen's, 6 Ch. D. 264, at p. 270; seeposf, p. 97. 
 
 " It is a maxim in law, that every man's grant shall be taken 
 by construction of law most forcible against himself. Qucelihet 
 concessio fortissimo contra donatorem interpretanda est, which is 
 so to be understood, that no wrong be thereby done; for it is 
 another maxim in law. Quod legis constructio non facit injuriam. 
 And therefore if tenant for life maketh a lease generally, 
 [*95 ] this shall be taken by * construction of law on estate for 
 his own life that made the lease; for if it should be a 
 lease for the life of the lessee, it should be a wrong to him in 
 the reversion. And so it is if tenant in tail make a lease gen- 
 erally, the law shall contrive this to be su<-h a lease as he may 
 lawfully make, and that is for terra of his own life; for if it should 
 be for the life of the lessee, it should be a discontinuance, and 
 consequently the state which should pass by construction of law 
 should work a wrong;" Co. Litt. 183 a. 183b; cf. Co. Litt. 42a. 
 " A release in deed, which is the act of the party, shall be taken 
 most strongly against himself; " Co. Litt. 264b. 
 
 "The principle of construction which has been so strenuously 
 contended for, viz., that the terms of a grant are to be construed 
 as favourably as possible for the grantee, the Court is not dis- 
 posed to controvert; " per Wilde, C. J., Re Stroud, 8 C. B. 529. 
 Construction of exception. — " It is a rule of construction, that 
 where there is a grant and an exception out of it, the words of 
 the exception are to be considered as the words of the grantor, 
 
 Cb) Fowkes \. 3Ianchesfer & London Assurance Association, 3 B. & S. 925; 
 Taylor v. Liverpool & Great Western Steam Co., L. R. 9 Q. B. 549; j)cr Selborne, 
 C. in Neillv. Devonshire, 8 App. Ca. 149; Johnson v. Edgxvare, &c., Eailicay 
 Company, 35 Bear, at p. 4S4. 
 
 Adams r. Warner, 23 Vt, 411. The rule is strictly limited to cases where 
 the terra is on its face ambiguous, and is introduced by the party after- 
 wards seeking to impose upon it a narrower meaning; and the rule is disre- 
 garded where it will work a penalty, or forfeiture, or cause wrong to a 
 third party. 1 Kent. Coram. 557; 2 Whart. Cont. Sec. 670. 
 
 128
 
 CONSTRUCTION IN FAVOUR OF GRANTEE. * 96 
 
 and are to be construed in favour of the grantee; " per Holrovd, 
 J., BuUen v. Denning, 5 B. & C. 850/- 
 
 Examples. — Construction in favour of grantee. — "A., tenant 
 in fee simple, makes a lease of lands to B., to have and to hold to 
 B. for term of life, without mentioning for whose life it shall be: 
 it shall be deemed for term of the life of the lessee, for it shall be 
 taken most strongly against the lessor, and as hath been said an 
 estate for a man's own life is higher than for the life of an- 
 other; " Co. Lift. 42a. 
 
 Lease for thirty-one years, and four years after the beginning 
 of the term a new lease made to another person, as follows: 
 " Know that I the aforesaid, thirty-one years being completed, 
 have demised and granted all the premises, &c., habendum from 
 the day of the making of these presents, the term aforesaid being 
 tirst finished until the end of the term of thirty- one years thence 
 next ensuing; " held, that the term should begin after the termi- 
 nation of the term of thirty-one years, as otherwise the 
 lessee would only * have a lease for four years, and [ * 90 ] 
 every grant shall be expounded most strongly against the 
 grantor; Dy. 20 lb, pi. 28. 
 
 Lessee for 100 years made a lease for forty years to T. S., if 
 he should so long live; and afterwards he demised it to John, 
 " habendum after the term of forty years, for the term of twenty- 
 three years to be computed from the date of these presents;" 
 held, that the lease to John should commence from the expiration 
 of the lease to T. S., on the ground that, if the limitation be not 
 certain when the t->rm shall begin, it shall be taken most bene- 
 ficial for the lessee; Seaman'' s Case, Godb. 100. 
 
 A man makes a lease of Blackacre to A. for fen years, and of 
 "Whiteacre to B. for twenty years; and afterwards by indenture, 
 reciting the former leases, demises both Blackacre and Whiteacro 
 to another for forty years, to begin after the end and determina- 
 tion of the said several leases made to A. and B. Afterwards the 
 former lease of Blackacre ends during the currency of the lease 
 of "Whiteacre; it was held, that the haboiduni in the latter lease 
 was to be taken resjjectiv^ and that the new term for forty years 
 in Blackacre began immediately on the determination of the term 
 of ten years in it granted by the former lease, on the ground that 
 " every deed shall be taken more strongly against the grantor, 
 and more beneficially for the grantee, and it is more beneficial 
 for the lessee to have the lease in Blackacre to begin presently 
 after the expiration of the first lease made thereof, than to tarry 
 till the lease of Whiteacre be ended. If I release unto you all 
 actions which I have against you and another, in this case, not- 
 withstanding the joint words, all actions which I have against 
 
 ^^ Exceptions to general conveyances of a rijilit are to be construed, in 
 questions of doubt, against the party in whose favor they are made. Jack- 
 son V. Laurence, 11 Johns. (N. Y.) 1!)1; CochecoCo. v. Wheeler, 10 N. II. 305. 
 9 INTEKI'RKTATIOX OF DEEDS. 129
 
 * 98 CONSTRUCTION IN FAVOUR OF GRANTEE. 
 
 you alone are released, for it shall be most beneficially for bim to 
 whom the release is made, and most strongly against him who 
 makes it;" Justice Windham'' s Case, 5 Rep. 7b. 
 
 In Doe d. Davies & ]ViUiams v. Williams, 1. H. Bl. 25, where 
 a conveyance was made by lease and release of the Clock 
 [ * 97 ] Mills, " and all lands and meadows to the said * mes- 
 suage or mill belonging, or used, occupied, and enjoyed, 
 or deemed, taken, or accepted as part thereof,'.' the rule was 
 applied to show that three acres of leasehold land, which had for 
 thirty-seven years been held with the Clock Mills, were intended 
 to pass. 
 
 In a lease for twenty- one years, there was a covenant that the 
 lessee should have the land for twenty-one years more after the 
 expiration of the said term, and " so from twenty-one years to 
 twenty-one years, until ninety-nine years past thence next ensu- 
 ing shall be complete and ended." The question arose whether 
 the first twenty-one years were included in the ninety -nine; and 
 Dolben, J., said: "the words 'from thence next ensuing,' may be 
 referred to the beginning of the first term, or to the end of it;" 
 whereupon Scroggs, C. J., said: "therefore it standing so indif- 
 ferent, we ought to construe it most strongly against the gran- 
 tor," and the court decided that the first twenty- one years were 
 not to be computed in the ninety-nine; i¥awc/4es^er CoZ/egre v. Traf- 
 forcl, 2 Show. 31 ; S. C. 2 Lev. 241. 
 
 The rule has been -applied to the construction of an habendum: 
 Anon., Dyer, 261b, pi. 28; of covenants for title: Barton v. Fitz- 
 gerald, 15 East, 530; but see Nind v. Marshall, 1 Brod. & Bing. 
 819; of covenants bv a lessee; Webb v. Plummer, 2 B. & Aid. 
 746 {per Holroy^, J., at 751); Barrett v. Bedford, 8 T. R. 602; 
 of a proviso in a lease; Doe d. Abdy v. Stevens, 3 B. & Ad. 299; 
 of an agreement for tenancy: Re Stroud, 8 C. B. 502; of the words 
 " for seven, fourteen, or twenty-one years," in an agreement for 
 a lease: Dann v. Spurrier, 3 Bos. & Pul. 399; in a lease: Doe d. 
 Webb V. Dixon, 9 East, 15. 
 
 Where the grantor takes an interest under his own grant, the 
 deed will be construed as if a stranger were the grantor; Vincent 
 V. Spicer, 22 Beav. 380. 
 
 Objections to rule. — The rule has been objected to by Jegsel, 
 M. R., who says ( Taylor v. Corporation of St. Helens, 6 Ch. D. 
 270): "I do not see how, according to the now established rules 
 of construction, as settled by the House of Lords, in the 
 [* 98] well-known case of Grey v. Pearson, 6 H. L. C. 61, * fol- 
 lowed by Roddy v. Fitzgerald, 6 H. L. C. 823, and Abbott 
 V. Middleton, 7 H. L. C. 68, that maxim can be considered as 
 having any force at the present day. The rule is to find out the 
 meaning of the instrument according to the ordinary and proper 
 rules of construction. If we can thus find out its meaning, we 
 do not want the maxim. If, on the other hand, we cannot find 
 130
 
 CONSTRUCTION IN FAVOl'R OF GRANTEE. * 99 
 
 out its meaning, then the instrument is void for uncertainty, and 
 in that case it may be said that the instrument is construed in 
 favour of the grantor, for the grant is annulled." 
 
 Who is the person Ksiiig the words f — In Shep. Touch. SG, and 
 2 Bl. Comm. 8S0, a distinction is drawn between an indenture 
 and a deed-poll to the effect, that as the latter is executed by tho 
 grantor alone, and the words are his only, it should therefore bo 
 taken most strongly against him; but that as an indenture is exe- 
 cuted by both parties, the ^vords are to be considered those of 
 them both: see Scoi-ell & CaveVs Case, 1 Leon. 318. It seems, 
 however, that the rule requires to be supplemented by the ex- 
 planation that as regards indentures, the law will consider tho 
 words to be spoken by him who can properly speak them (c).^' 
 
 "First, it is to be considered that the lease and also the cove- 
 nant and grant to pay the sum, is made by indenture, and tho 
 words in an indenture are the words of both parties; and although 
 they are spoken as the words of one party only, yet they are not 
 his words alone, for there is the assent of the other party to each 
 other's words; and therefore, when they are written, they shall be 
 taken in such manner as the intent of the parties may be sup- 
 posed to be. And they shall not be taken most strongly against 
 one and beneficially for another, as the words of a deed-poll shall,- 
 for there the words shall be taken most strongly against the 
 grantor, and most available to the grantee. But it is not so in a 
 deed indented, because the law makes each party privy to the speech 
 of the other; and therefore we ought not to make such construe 
 'tion of words in an indenture as in a deed poll. But 
 *if an indenture contains matter of substance, the law [*99] 
 will make such reference thereof as is most fit and rea- 
 sonable, and will say that the words are spoken by him who could 
 most properly speak them; and therefore, where the plaintiff here 
 has covenanted and granted to render and pay the said sum for 
 the lands, the words are in fact the words of the lessee, but in 
 construction of law they shall be taken as the words of reserva- 
 tion of the lessors, inasmuch as they have the sense and effect of 
 a reservation. For words of covenant and grant to render and 
 pay such a sum for the land have the effect of reserving or pay- 
 ing rent for the land, and so the law will take them to be spoken 
 by the lessors. As if a man make a feoffment in fee by deed in- 
 dented rendering such rent, there it ought to be considered that 
 
 (c) f>ee posi, Chap. X.. Estoppel, p. 141. 
 
 •" When a contract is concurrently settled bj' both parties, the rule that 
 words are to be taken most .strongly against the grantor does not apjily. In 
 such case neither party can be regarded as distinctively projiounding any 
 specific terms. Browii ?'. McGrau. 14 Pet. 480; P.eckwith r. Howard, (I U. I. 
 1. So far however as concerns stipulations emanating from either party, 
 amV)iguf)Us terms are to be construed in case of doubt, most strongly against 
 the particular party llrst making use of the term. Dounel v. Ins. Co., 2 
 Sumn. ;}GG; Jackson v. Hudson, 3 Johns. (N. Y.) ;587. 
 
 131
 
 * 100 GRANT BY THE KING. 
 
 it cannot be reserved as a rent may upon an estate for years, for 
 life, or in tail, because the reversion is not in the feoffor, and yet 
 the feoffor shall have it as a rent granted by the feoffee. And 
 by the same reason that the law there takes the words of the 
 feoffor as the words of the feoffee, by the like reason in our case 
 it will take the words of the lessee as the words of the lessor, for 
 they serve most properly that way. And if the deed indented 
 had specified that the plaintiff should have the4and, and should 
 pay 20s. yearly, that would be a rent, for the law refers the words 
 in any writing indented to be spoken by him that can best speak 
 them; " per Staunford and Walsh, arguendo, Browning v. Beston, 
 Plowd. 134 
 
 Exception. — The King's grant is taken most strongly in favor 
 of the King, aud against the grantee; Plowd. 243. 
 
 Examples. — A grant by the Crown of " lands " and " mines " 
 does not pass ores royal or mines royal; contra, if the King grant 
 all mines which he has in the lands of A., and has a royal mine 
 there, for the King cannot be deceived in his grant; Reg. v. 
 
 Northumberland, the Case of Mines, Plowd. 310. 
 [ * 100 ] * Where the King, being seised of two manors, A. and 
 B., granted '" totuni illud nianer^ de A. & B.," or " totian 
 illud maner' de A. cum -B.," it was held that neither manor 
 passed: and where the King granted all the demesne lands of a 
 manor, it was held that copyholds parcel of the manor, did not 
 pass; 1 Rep. 46a, 46b. 
 
 If the King grants " the manor of D., ivhich he hath by the at- 
 tainder of A.," and in truth lie hath it not by his attainder, 
 the grant is void; 1 Rep. 52a. See also The Kingv. The Bishop 
 of Rochester & Sir F. Gierke, 1 Mod. 195, 2 Mod. 1; S. C. Free- 
 man, Rep. in K. B. 172, 178; Lee v. Broime, Freeman, Rep. in 
 K. B. 207; The King v. Capper, 5 Pri. 217; Att.-Gen v. Marquis 
 of Doumshire, 5 Pri. 269; Green's Case, 6 Rep. 29a; Auditor 
 Curlers Case, 11 Rep. ^b; Mason v. Chambers, Cro. Jack. 34; and 
 see the eases cited in Criaise, Dig. vol. 5, Tit. xxxiv.; Chitty on 
 the Prerogatives of the Crown, 391. 
 
 Rule 22. — Election of grantee (d). — " When a deed may enure 
 to divers purposes, he to whom the deed is made shall have elec- 
 tion which way to take it, and he may take it that way as shall 
 be most for his advantage;" Shep. Touch. 83. 
 
 Examples. — ■"' If a deed of grant be made by the words ^dedi 
 et concessi,' this in law may amount to a grant, feoffment, gift, 
 
 {d) See anie, p. 40. See also the notes to Chester v. Willan, 2 Wms. Saund. 
 96a. And as to ambiguous grants, jmst, p. 105. 
 
 132
 
 CONSTRUCTION AT ELECTION OF GRANTEE, * 101 
 
 lease, release, confirmation, or surrender, and it is in the choice 
 of the grantee to plead or use it in the one way or the other; " 
 Shep. Touch. 88; Co. Lit. 301. b. 
 
 Sir R. H., seised of a manor, part in demesne, part in copyhold, 
 part in leasehold for years in consideration of a sum of money by 
 deed, " demised, granted, bargained, and sold " it for a 
 term of years to commence from * his death. — Held, [ * 101 ] 
 that the grantees might elect to take by demise at common 
 law, or by bargain and sale under the statute; Heyirard's Case, 
 2 Rep. 3oa; see to the same effect, Darrell v. Gunter, Sir W. 
 Jones, 206, where the words were " demise, grant and to farm let." 
 
 The King having rent of a manor, of which A. and his wife 
 were jointly seised, for valuable consideration, " gave and granted, 
 remitted, released, and renounced" the rent to the husband and 
 his heirs. Held, that the husband might use it as a grant of the 
 rent or as a release of it, at his election; Dy. 312b, pi. 16, 
 
 133
 
 * 103 AMBIGUITIES AND INACCURACIES DISTINGUISHED. 
 
 [ * 102 ] ^ CHAPTER VIII. 
 
 AMBIGUITIES. EQUIVOCATIONS. INACCUEACIES. 
 
 Ambiguities and inaccuracies defined and distinguished: Patent 
 ambiguities: Ambiguity determined by election: Equivoca- 
 tions : Direct evidence of intention : Effect of general joined 
 to particular statement : Inaccuracies. 
 
 Much confusion exists, even in judicial decisions, between am- 
 biguities of the different classes, and between ambiguities and in- 
 accurate descriptions. 
 
 Ambiguities. — There are two kinds of ambiguity : — • 
 
 Patent ambiguity. — First, where the ambiguity arises from the 
 fact that the parties have expressed inconsistent intentions on 
 the face of the deed. 
 
 An ambiguity of this class is apparent to any person perusing 
 the deed, even if he be unacquainted with the circumstances of 
 the parties, and is called a " patent ambiguity." 
 
 Latent ambiguity or equivocation. — Second, where no ambiguity 
 is apparent to a person perusing the deed, until, on obtaining 
 evidence of the circumstances of the parties, it is discovered that 
 there are several persons or things or classes of persons or things, 
 to each of which a name or description contained in the deed 
 
 seems to be equally applicable. 
 [ ^ 103 ] * An ambiguity of this class is called a "latent ambi- 
 guity " or an " equivocation." 
 
 A gift of " my gold watch " to " the son of A.," appears unam- 
 biguous, and it is not till it appears from extrinsic evidence that 
 A has two sons, or that the speaker has two gold watches, that 
 the equivocation becomes manifest. 
 
 It may be remarked that most words may bear more than one 
 
 meaning, and as no man can know all the possible meanings of 
 
 every word in the language, it may happen that while the parties 
 
 to a deed think that they have expressed their intentions in an 
 
 134
 
 PATENT AMBIGUITIES. * lO-t 
 
 rinambignous manner, the language appears to be ambiguous to 
 a person who is aware that some of the words are capable of more 
 than one meaning. 
 
 Ambiguities arising from words braring mo7-e tliau one mean- 
 i)ig, — Ambiguities arising solely from the fact that the words are 
 capable of more than one meaning (a class which, it will be ob- 
 served, includes equivocations) are sometimes called " latent am- 
 biguities," \vhile at other times the phrase is, restricted to equi- 
 vocations, as above defined. To avoid confusion I shall always 
 apply the term " equivocation " to a description which seems 
 to be equally applicable to more than one person or thing, or class 
 of persons or things, where only one is intended. 
 
 Inaccurate description. — An inaccurate description is one that 
 does not exactly tit any person or thing, or class of persons or 
 things. - 
 
 As to the application of the phrase " latent ambiguities " to in- 
 accuracies, see iiost, p. 114. 
 
 Inaccurate distinguished from ambiguous description. — It should 
 perhaps be remarked that a description may be equivocal without 
 beinc inaccurate, and may be inaccurate without being equivosai. 
 If A. has two houses in London the phrase " A.'s house in Lon- 
 don " is equivocal, but it is not inaccurate. The description fits 
 each house, though it does not distinguish between them. On 
 the other hand, if A.'s only house in London is lease- 
 * hold, the description, " A.'s freehold house in London," [ * 104 ] 
 is inaccurate, but not equivocal. See examples in Chap- 
 ter XIL, Parcels, 
 
 Patent Ambiguities. 
 
 "Where a patent ambiguity exists, the writer appears to be halt- 
 ing between two intentions; e. g., " I give my dog to my nephew 
 John or Thomas;" a limitation " to one of the sous of A." In 
 each of these cases the writer has given a correct description of 
 the object of his bounty, biit he has not stated *fclearly whether 
 John or Thomas, or which of the sons of A. is to be that object. 
 Either extrinsic or intrinsic evidence, admissible under the pre- 
 ceding rules (see ante, chap, iv., and chap, vij.), might show that 
 John and Thomas denoted the same person, or that A. bad only 
 one son, and that that fact was known to the parties; (see ^^'ig- 
 rara, Extr. Ev. p. 80, pi. 71)); in which case the ambiguity would 
 disappear; but if this is not the case, if the ambiguity remains 
 after the application of such evidence, the writer has expressed 
 no iritNntions that we can ascertain. Similar remarks would ap- 
 ply to the case where the ninbignity occurs in the subject matter 
 of the gift. These considerations give rise to the following 
 Rule:— ^ 
 
 135
 
 * 105 PATENT AMBIGUITIES. 
 
 Rule 23. — Deed containing pafe/if ambiguity void for uncer- 
 tainty. — "Where after the application of extrinsic evidence to de- 
 termine the primary meanings of the words, and of intrinsic evi- 
 dence to determine in what secondary meanings, if any, they are 
 employed, a patent ambiguity remains as to the person or thing 
 intended, or as to what is to be done, we cannot ascertain the in- 
 tentions of the parties, or, as the rule is commonly .expressed, the 
 deed or clause is void for uncertainty. 
 
 " If one grant to one of the children of J. S., and -T. S. 
 [ * 105 ] hath more than one, and he do not describe which * he 
 doth intend, this grant is void for uncertainty;" Shep. 
 Touch. 251. 
 
 " Ambiguitas patens " (i.e., an ambiguity apparent on the deed 
 or instrument) is never holpen by averment (a); and the reason 
 is, because the law will not couple and mingle matter of specialty, 
 which is of the higher account, with matter of averment, which 
 is of inferior account in law; for that were to make all deeds 
 hollow, and subject to averments, and so in effect, that to pass 
 without deed, which the law appointeth shall not pass but by 
 
 deed It holdeth generally that all ambiguity of words 
 
 by matter within the deed, and not out of the deed, shall be 
 holpen by construction, or in some cases by election, but never 
 by averment, but rather shall make the deed void for uncer- 
 tainty;" Bac. Elem. Rule 23. 
 
 Lease dated 10th October, habendum " from the 20tb day of 
 November, for 5 years;" Held void for the uncertainty what No- 
 vember is meant; Anon. 1 Mod. 180. See Anon. 1 Leon. 227, 
 2J0st, p. 106. Agreement for sale of land; "the vendor reserves 
 the necessary land for making a railway through the estate to 
 P." Held void for the uncertainty; Pearce v. Watts, L. R. 20 
 Eq. 492 (cf. Chattock v. Midler, 8 Ch. T>. 177); Re Burnitt and 
 Burland, W. N. 1882, p. 152. Proviso in mining lease void for 
 uncertainty, Mundy v. Duke of Rutland, 23 Ch. D. 81. 
 
 Exception. — Ambiguity in subject-matter determined by elec- 
 tion (&). — In some cases an ambiguity in the subject-matter, or 
 in the estate granted may be determined by the election of one of 
 the parties. 
 
 " Of everything uncertain, which is given or granted, election 
 remains to him to whose benefit the grant or gift was made, to 
 
 (a) "Averment" meant the offer of a defendant to make good his plea in 
 certain cases, Co. Litt. 3626. Here it is used in the meaning of offering to 
 give direct evidence of intention. See post, p. 108. 
 
 (6) See Rule 22, p. 100. 
 
 136
 
 PATENT AMBIGUITIES. * 107 
 
 make the same certain unless in special cases;"' Vin. Ab. Grants, 
 H. 5. 
 
 *' If I give you one of my ho'rses, although that be 
 * uncertain, yet by your election that may be made a [*106] 
 good gift;" Mervyn v. Lijds, Dy. 91a. 
 
 " If one grant to me a rent or a robe; twenty shillings or forty 
 shillings; or common of pasture or rent; in the disjunctive, 
 which is at lirst very incertain; yet this grant may become good; 
 for if I make my election, or he pay the rent, or perform the 
 grant in either part, the grant is now become good. . . . So it 
 is when a man hath six horses in his stable, and he doth grant 
 me one of his horses, but doth not say which of them; in this 
 case I may choose which I will have; and in these cases, when I 
 have made my election, and not before, the grant is good. And 
 if in these cases, the grantee doth not make his election during 
 his life (and also the life of the grantor; Bac. Ahr. Grant, H. 3): 
 it seems the grant will never be good." Shep. Touch. 251. 
 
 Fine, feoffment, and recovery of land, part of a manor, to a 
 certain annual value, held good by election of cestui que use: 
 Cnlthrop's Case, Moore, 101, pi. 247. 
 
 AVhere a grant is general, as the moiety of a yardland or 120 
 acres in a certain waste, without certainty in what part of the 
 waste the grantee shall have the land, or the special name of the 
 land, or how it is bounded, and without any certain description 
 of it, the grant may be made good by the election of the grantee, 
 if the grantor be a common person, but not if he be the Crown, 
 in w^hich case the grant is altogether void: Hungerford^s Case, 
 1 Leon. 30; Brand v. Todd, Noy, 29; and see Bacon, £lem. Rule 
 23. As to grants by the Crown, see Doe d. Define v. Wilson, 10 
 Moo. P. C. 502. But on the other hand, whei-e the grant is gen- 
 eral, as of a manor, with an exception of a particular close by 
 name, and there are two closes of that name, the grantor may 
 elect which close he will retain; Sir Thomas Lee's Case, 1 Leon. 
 268. 
 
 If a mortgage debt is made payable to the mortgagee, his 
 heirs, or executors, and he die before the day appointed for pay- 
 ment, the mortgagor may, if he pay on that day, pay either to 
 the heir or the executor: Co. Litt. 210a. 
 
 Lease for years to begin at the feast of our Lady, without say- 
 ing at which feast, the lessee may determine the beginning of the 
 term at his election; Anon., 1 Leon. 227; see Anon. 1 Mod. 180, 
 ante, p. 105. Agreement by an incumbent to grant a 
 lease at a future time of his glebe, "except *37 acres [ *107] 
 thereof," which wore not specified. Held, that the con- 
 tract was not void, as the right of selecting belonged to the lessor, 
 he having the first act to do; Jenkins v. Green, 27 Beav. 437. 
 
 Agreement for lease for seven, fourteen, or twenty- one years, 
 or lease habendum for seven, fourteen, or twenty- one years, is 
 
 137
 
 * 108 EQUIVOCATION. 
 
 not void, but gives an option to the lessee to determine the lease 
 at the end of the tirst seven or fourteen years; Dannx. Spurrier, 
 8 Bos. & P. 399, 442; Doe d. Webb v. Dixon, 9 East. 15; Powell 
 V. Smith, L. R. 14 Eq. 85. 
 
 See other examples, 1 Bro. Ab. 725, ''Election;'' Vin. ''Elec- 
 tion.'' C. and see HaywardCs Case, 2 Rep. 34. b. 
 
 Equivocations. 
 
 An equivocation is not discovered till the person perusing the 
 deed finds by extrinsic evidence, admissible under Rale 11, as to 
 the primary meanings of the words employed that the description 
 is equally applicable to more than one person or thing, or class 
 of persons or things. 
 
 Either extrinsic or intrinsic evidence, admissible under the 
 preceding Rules 11 and IG, and the subsidiary rules, may be 
 adduced for the purpose of determining the meaning of the words 
 and clearing up the prima facie equivocation. 
 
 If it should happen that such evidence is insufficient to resolve 
 the equivocation, we are at liberty to resort to further evidence, 
 both intrinsic and extrinsic, for that purpose, but the extrinsic 
 evidence to which we now resort difiers in its nature from that 
 already discussed in Chapter IV. 
 
 Rule 24. — Intrinsic evidence to resolve equivocation. — Intrin- 
 sic evidence may be employed for the purpose of determining 
 which person or thing or class of persons or things described by 
 an equivocal description is intended. 
 
 r * 108 ] * It will be observed that the purpose for which in- 
 trinsic evidence is employed under this rule differs from 
 that for which it is admitted under Rule IG. Under Rule 16 in- 
 trinsic evidence is employed for the purpose of excluding the pri- 
 mary meaning of the word, while by Rule 24 it is admissible in 
 order to discriminate between two primary meanings which appear 
 to be equally probable. The phrase " John the nephew of A.," 
 is equivocal when A. has two nephews each called John. Intrin- 
 sic evidence to show that the word " nephew " was used in the 
 secondary sense of " great-nephew," would be admissible under 
 Rule 16, while intrinsic evidence to show which of the two 
 nephews called John was meant would be admissible under the 
 rule now being considered. 
 
 Direct evidence of intention. — Evidence of what was passing in 
 the minds of the parties at the time of executing the deed is not 
 admissible for the purpose of determining the primary meaning 
 of a word under Rule 11, but evidence of that nature is admissi- 
 ble to determine in which of their several primary meanings the 
 words in an equivocation were employed. 
 138
 
 DIRECT EVIDENCE OF INTENTION. * 109 
 
 Rule 25. — Direct evidence of inteniion to )esplve equivoca- 
 tion. — When after all the extrinsic and intrinsic evidence admis- 
 sible under the preceding rules ( 11 and 10, and the subsidiary 
 rules, and under rule 24) has been exhausted, a name or descrip- 
 tion still remains equivocal — then, and not till tlioi — extrinsic 
 evidence of what was passing in the minds of the parties to the 
 deed at the time of execution is admissible for the pui'pose of 
 determining which of the several persons or things or classes of 
 persons or things described by the equivocation was intended, 
 and for no other purpose whatsoever. 
 
 Evidence of the nature mentioned in this rule may be 
 called " direct evidence of intention: " it * may be de- [ * 109 ] 
 fined as " Evidence to prove intention itself as an 
 independent fact." 
 
 Direct evidence of intention is entirely different in its nature 
 from evidence used to determine the primary meaning of a word. 
 It will be remembered that (ante, Ch. IV. pp. 47, 48) evidence of 
 the latter nature is adduced for any of the purposes following, viz. : 
 (1), To show the meaning usually affixed to the words at the 
 time of execution of the deed by persons of the class to which 
 the parties belonged; or (2), the meaning in which the words 
 must have been used by the parties having regard to their cir- 
 cumstances at the time of execation; or (3), the meaning which 
 it can be conclusively shown that the parties were in the habit of 
 affixing to the words. On the other hand, direct evidence of in- 
 tention is evidence as to which of several persons, or things, 
 or classes of persons or things was on the special occasion of 
 framing the deed intended by a description, which, when inter- 
 preted with the aid of extrinsic and intrinsic evidence admissible 
 under Rules 11 and 16, appears to be equally applicable to each 
 of them. 
 
 Verbal w parol evidence. — Where Judges or text writers speak 
 of applying "verbal" or "parol" evidence to the explanation 
 of ambiguities or inaccuracies, they generally mean direct evi- 
 dence of intention: but since the phrase "parol evidence" may 
 mean evidence as to the primary meanings of the word, there is 
 a certain amount of confusion in the dicta of the Judges and 
 authors, against which the reader must be on his guard. For in- 
 stance, dicta will be found to the effect that " parol evidence" is 
 not admissible to clear up a patent ambiguity or an inaccuracy, 
 where all that is mpant is that direct evidence of intention is not 
 admissible for that purpose; and it is not intended to deny the 
 admissibility of evidence to ascertain the primary meanings of the 
 words employed. 
 
 139
 
 * 111 EQUIVOCATION. 
 
 Direct evidence of intention is in support of the express icords. — 
 It will be observed that this rule is not, as may at first sight ap- 
 pear, an exception to rule I. (snpra, p. 1) against the ad- 
 [*110] mission of evidence to contradict, vary, or add to *the 
 terms of the deed. " In the case of equivocation, the 
 general intent includes both the special, and therefore stands icith 
 the icords:' (Bacon, Elem. Rule 23). The person or thing in- 
 tended is correctly described, though the description applies also to 
 another person or thing; while in cases falling under Rule I, the 
 contention, which is contradicted by that Rule, is that the deed 
 does not completely or correctly express the intention of the 
 parties, and that therefore the expressed intention ought to be 
 disregarded or supplemented on verbal evidence of unexpressed 
 intentions. 
 
 Examples: "If a man has two sons both baptized by the 
 name of John, and conceiving that the elder (who had been long 
 absent), is dead, devises his land by his will in writing to his son 
 John generally, and in truth the elder is living; in this case the 
 younger son may in pleading or in evidence allege the devise to 
 him; and if it be denied, he may produce witnesses to prove his 
 father's intent, that he thought the other to be dead" {i.e., that 
 the primary meaning of John, was John the younger), "or that 
 he at the time of the will made, named his son John the younger." 
 (i.e., may adduce direct evidence of intention that John the 
 younger was meant), -"and the writer left out the addition of the 
 younger; for in 47 E. 316b. the case was : Robert Peynel had 
 issue two sons baptized by the name of William, and levied a fine 
 to Sir John Fanningbridges and others come ceo, &c., who granted 
 and rendered to Robert andi William his son generally; and after 
 the death of Robert, William the younger son brought a scire 
 facias against the heir of William the elder; and the younger by 
 the rule of the Court averred that the fine was levied to make him 
 heir, jurist, &c., and upon that, issue was taken. And no incon- 
 venience can rise if an averment in such case be taken in case of 
 a devise by will, for he who sees such will, whereby land is de- 
 vised to his son John, cannot be deceived by any secret invisible 
 averment; for when he sees the devise to his son John, he ought, 
 at his peril to enquire which John the testator intended, which 
 
 may be easily known by him who wrote the will, and 
 [* 111 ] others who were * privy to his intent; and if no direct 
 
 proof can be made of his intent, then the devise is void 
 for the uncertainty as the render also would be in the said case of 
 the fine as to William;'' Lord Cheney's Case, 5 Rep. 68 b. 
 
 " If a man levies a fine of the manor of Soure or of the manor 
 of Dirtleby .... and in truth there is tlje manor of North 
 Soure and'South Soure, of Great Dirtleby and Little Dirtleby, in 
 this case issue may be taken dehors, which manor the conusor in- 
 tended to pass, for that is matter ol fact not apparent in the fine, 
 140
 
 PATENT AMBIGUITIES. * 112 
 
 whereof the Jndsfe cannot take conusance; but it stands well with 
 the tine, and shall be tried bv the jury, and therewith agree 12 
 H. YII. 7; 26 H. VIII. 6 a;" Altham's Case, 8 Rep. 155 b. 
 
 To the same effect, see Keilw. 49 (pi. 6), Plow. 85 a; Daven- 
 ant V. Raster, 6 Mod. \'6b. The reader is referred to the imjiort- 
 ant ease of Doe d. Gord v. Needs, 2 M. & W. 129 (discussed in 
 AVigram, Estr. Ev. pi. 182, 4th Edit., p. 148), for an instance of 
 the same principle applied to the interpretation of a will. 
 
 Rides as given by Wigram,, V.-C. — The Rule as to latent ambi- 
 guities, i. e., equivocations, is stated with reference to wills in 
 IVigram on Extrinsic Evidence (p. 13, pi. YII., and see p. 101 et 
 seq.), in the following terms: — 
 
 " Proposition VII. — Notwithstanding the rule of law, which 
 " makes a will void for uncertainty, where the words, aided by 
 " evidence of the material facts of the case, are insufficient to de- 
 " termine the testator's meaning — Courts of Law, in certain special 
 " cases, admit extrinsic evidence of intention to make certain the 
 "pcT.sou or thing intended, where the description in the will is 
 " insufficient for the purpose." 
 
 "These cases may be thus defined: — Where the object of a tes- 
 " tator's bounty, or the subject of disposition (i. e., the ])er son or 
 " thing intended), is described in terms which are applicable in- 
 " differently to more than one j^erson or thing, evidence is admis- 
 " sible to prove which of the persons or things so described was 
 " intended by the testator." 
 
 * Rule 26. — No direct evidence of intention is ad- [*112] 
 missible to explain a patent ambiguity. 
 
 This rule follows from the principles above laid down, but it 
 appears convenient to state it expressly, so as to contrast patent 
 ambiguities with equivocations: See- ante, p. 102. 
 
 If a man by deed gives goods to one of the sons of J. S., who 
 has divers sons, here he shall not aver which son he intended, for 
 by judgment in law upon this deed, this gift is void for the un- 
 certainty, which cannot be supplied by averment — Vide 11 Ed. 
 
 IV. 2a Where the words are in the limitation of tbe 
 
 estate to two et haredibiis, that is apparent in the fine, and by 
 judgment of law these words et hceredibus are uncertain and void " 
 (because it does not appear whose heirs are meant), " and no aver- 
 ment dehors can make that good, which upon consideration of the 
 deed is apparent to be void;" Althani's Case, 8 Rep. 1556. To 
 understand this it should bo remembered that a gift to one man 
 et hcrredibus omitting suis, followed by livery, gave him a fee 
 simple. Plowd. 28a.; see Co. Litt. 8b. See also Shep. Touch. 
 251. 
 
 An action was brought on a bill of exchange expressed in 
 figures to be drawn for a different sum from that expressed in 
 
 141
 
 * 113 GENERAL JOINED TO PARTICULAR STATEMENT. 
 
 words. Evidence of the intention of the parties as to the sum for 
 which it was drawn was rejected. Tindal, C J., saying — "This 
 is a case of ambigiiifas patens, and according to the rules of 
 law, evidence to explain such an ambiguity is not admissible. 
 Where there is doubt on the face of the instrument the law admits 
 no extrinsic evidence to explain it;" Saiinderson v. Piper, 5 Bing. 
 N. C. 431. Here by " extrinsic evidence," the Judge meant "direct 
 evidence of intention." See Hutley v. Marshall^ 46 L. T. 186, 
 where figures at the bottom of a note and also the stamp were 
 looked at to explain ambiguous words in the body of the instrument. 
 Incorrect statement of rules as to admission of evidevce to ex- 
 plain ambiguity. — The rule as to the admissibility of evidence to 
 explain ambiguities, including equivocations, is commonly stated 
 as follows: — "In a written instrument, if there be a pa^ei?^ am- 
 higuitrj, it never is allowed to be explained by verbal evi- 
 [ *113 ] dence, though a latent ambiguity is so;" Smith *on Con- 
 tracts, 6th ed., p. 45. See also Smith's Law of Propertv, 
 4th ed., pp. 896, 990; Chitty, Contr. lOth ed., pp. 101, 102. Many 
 dicta of Judges and. even judicial decisions will be found to the 
 same effect. 
 
 The reader, who has rightly appr'^hended the rules already laid 
 down in this treatise, will observe that the Rule as thus stated is 
 incorrect, for the following reasons: — (1) In all cases of ambigu- 
 ity, whether patent or latent, extrinsic evidence is admissible to 
 ascertain the primary meanings of the words, and until such evi- 
 dence is adduced it is impossible to say whether the instrument 
 is ambiguous or not; see Wigr. Ex. Ev. 179, pi. 203. (2) Direct 
 evidence of intention is admissible for the purpose of 'explaining 
 an equivocation, but not a patent ambiguity. It is to be observed 
 also that by the phrase " latent ambiguity " in the foregoing quo- 
 tation is meant an equivocation; but the books often use the 
 phrase in a wider sense, including any doubt raised by the appli- 
 cation of extrinsic evidence, whether it be what is more properly 
 called an inaccuracy, or a mere primd facie case of ambiguity, 
 which is ultimately solved by the further application of ordinary 
 evidence. 
 
 Effect of a General joined to a Particular Statement. 
 
 There is an inaccuracy of language which must be distinguished 
 from an ambiguity, namely, where the writer in one place makes 
 a general, and in another place a specific statement of his inten- 
 tions. If a man says, "I am going to France," and in another 
 place says, ' I am going to Paris;" although the statement resem- 
 jjles a patent ambiguity in form, there is no ambiguity; all that 
 the writer has done, is in one place to state his intention with 
 vagueness, and in another place with accui'acy. Hence the fol- 
 lowing — 
 
 142
 
 INACCURACY MAKING DEED VOID. * 115 
 
 Rule 27. — General and also jycuiivular sfateme)it.—\\heie a 
 deed contains both a general, vague, or indetinite, and also an ex- 
 act or particular statement of intention, the latter must prevail. 
 See post pp. 120, 132. 
 
 *Examples of the application of this rule will be found [ * 114 ] 
 scattered about in this treatise (see e. </., Chap. XII., 
 Parcels). 
 
 Inaccuracies. 
 
 It is hardly necessary to remind the reader that it is impossi- 
 ble to perceive that a description is inaccurate until we have ap- 
 plied extrinsic evidence to ascertain the primary meanings of tbe 
 words, as well as such intrinsic evidence, if any, as is afforded by 
 the deed under consideration. This is why inaccuracies are some- 
 times incorrectly spoken of as " latent ambiguities," when that 
 expression is used in a wide sense, and not as synonytnoiis with 
 equivocations. 
 
 The discussion of the more common forms of inaccuracies in 
 the different clauses of deeds, will be found in this book under 
 the appropriate Leadings. In this place I shall only discuss the 
 general rules. 
 
 Rule 28. — Where neither ichole description nor any part applies. 
 — If neither the description as a whole, nor any part of it, renders 
 it certain what object was intended, we can affix no meaning to 
 the words employed, and the deed or clause is void for the uncer- 
 tainty. 
 
 Examples. — "If a man letteth lands to A. for life, the remain- 
 der to B. in tail, the remainder to C. in fornid proidicta, this re- 
 mainder is void for the uncertainty;" Co. Litt. 20b. 
 
 Limitation to " A. et B. et hseredibus " without the word " suis;" 
 this is only an estate for their lives, for the uncertainty whose 
 heirs are to take: Shep. Touch. 101. See ante, p. 112. 
 
 Husband and wife hold an acre of land jointly of A. for their 
 lives: A. grants the reversion of the acre which the husband alone 
 holds for his life; the grant is void, as no lands satisfy the de- 
 scription: Shep. Touch. 2'"0. 
 
 * Conveyance of "all those trees which could then [*115] 
 reasonably be spared." held void for the uncertainty: 
 Me.rvyn v. Lyds, Dy. llOa. 
 
 It is hardly necessary to point out that " every shift will be re- 
 sorted to sooner than hold the gift void for uncertainty," Doe d. 
 Winter v. Perratt, M. & Gr. 362. 
 
 "The modern doctrine is not to hold a will void f(jr uncer- 
 tainty unless it is impossible to put a meaning upon it," per 
 
 143
 
 * IIG INACCURACY REJECTED. 
 
 Jessel, M. R., Re Roberts, Repingtou v. Roberts- Gaicen, 19 Cb. 
 D. 529. 
 
 Rule 29. — Where part of the description renders it certain 
 ivhat is intended. — If the description as a whole fits no object, 
 but part of the description renders it certain what is intended, 
 the rest of the description may be rejected. See Shep. Touch. 
 247. And seeposf, rule 45, p. 157. 
 
 In Clwlmondeley v. Clinton, 2 Jac. & W. 1 {arg. at p. 13), the 
 case is put " where, under a limitation to heirs of a particular 
 description, by purchase, a person apparently intended, though 
 not exactly answering both parts of the description, has been al- 
 lowed to take;" citing Pybus v. Mifford, 1 Ventr. 372; 1 Freem. 
 351, 369; 2 Lev. 75; Brown v. Barkham. 2 Vern. 729; Burten- 
 shaw V. }Veston, Fearne, App. 570; Wilts v. Palmer, 5 Burr. 
 2615, &c. See 2^ost, Chap. XVII., Heirs as Purchasebs. 
 
 In the application of this rule it must be remembered that we 
 must take the words in their primary meanings, so that the same 
 words may bear different meanings according to the circum- 
 stances of the person using them. The expression " All my books 
 which I purchased from S.," would vary in its meaning according 
 as I had or had not purchased books from S. If I had pur- 
 chased some of my books from S., the latter words would be re- 
 strictive, but if I had not purchased any books from S. they would 
 have to be rejected. 
 
 For Examples of the Rule see j^ost, Chap. XII., Parcels, p. 
 165. 
 
 [ * 116 ] Observation. — If the part of the description * which 
 gives certainty, applies to more than one object, we have 
 a case of equivocation, and direct evidence of intention is admis- 
 sible. See Rule 25. 
 
 Examples. — Grant by deed of " all the coal mines in the lands 
 in the occupation of K. & Son.'' It was shown that the grantor 
 had not any lands at the time of making the grant "in the occu- 
 pation of K. & Son." These words were rejected, thus leaving a 
 latent ambiguity, which was permitted to be explained by letters 
 written by the grantor's steward to the grantees prior to the grant, 
 Beaumont v. Field, 1 B. & Al. 247. 
 
 The following examples are all cases of wills:— - 
 Legacy to Robert Careless, my nephew, son of Joseph Care- 
 less. The testator had no brother named Joseph, but had two 
 brothers, each of whom had a son called Robert. The word 
 Joseph was rejected, and the description thus became " Robert 
 
 Careless my nephew, son of Careless; " this was equivocal, 
 
 144
 
 DESCRIPTION INAPPLICABLE TO WHOLE OBJECT. * 117 
 
 since there were two persons whom it fitted, and therefore direct 
 evidence of intention was admitted: Careless v. Careless, 1 Mer. 
 384. 
 
 Legacy '' to Sophia daughter of P. S." He had two daughters, 
 neither of whom was named Sophia. Evidence of intention ad- 
 mitted: Still V. Hoste, 6 Mad. 192. 
 
 Legacy " to Price son of Price." Evidence of in- 
 tention admitted: Price v. Price, 4 Yes. 679. 
 
 Rule 30. — Part of description applying to one, part to an- 
 other, but the ivhole applying to no object— It one part of the de- 
 scription applies to one object, and another part applies to an- 
 other object, but the description as a whole applies to no object, 
 the case is similar to that of a patent ambiguity and direct evi- 
 dence of intention is not admissible. 
 
 Examples. — Devise to testator's son John for life, with re- 
 mainder "to his, the testator's, grandson John, eldest 
 *son of the said John for life," with remainders over. [*117] 
 The testator's son John had been twice married; he had 
 by his first wife an eldest son Simon, and by his second wife a 
 son John and other children. Here part of the description " John 
 the son of John " applies to one person, other part of the descrip- 
 tion " the eldest son of John " applies to another person. Held 
 that direct evidence of intention was inadmissible: Doe v. His- 
 cocks, 5 M. & W. 363; S. C. Tud. L. C. Real P. (3rd ed.) 918. 
 
 Recapitulation. — To recapitulate : A person perusing a deed, 
 without knowing the circumstances of the parties, will detect the 
 patent ambiguities, he will not detect equivocations or inaccurate 
 descriptions, and he mayor may not detect those latent ambigui- 
 ties which are not equivocations. On the application of extrinsic 
 evidence of the circumstances to determine the primary mean- 
 ings of the words under Rule 11, and on interpreting the words 
 according to the context under Rule 16, and the subsidiary Rules 
 in Chapters VI. and VII., the patent ambiguities may disappear, 
 the inaccuracies and latent ambiguities, including equivocations, 
 will become manifest, and may subsequently disappear. If any 
 equivocations remain, they may be resolved by further intrinsic 
 evidence under Rule 24, or by direct evidence of intention under 
 Rule 25. If, after this process has been gone through, there re- 
 main any ambiguities of either class, or any inaccuracies which 
 are not made clear, no interpretation can be put on the deed. 
 
 An example may render this more clear; let the question be, — 
 Who is meant by "A.'s nephew J. living at S."? 
 
 First, evidence, either extrinsic employed under Rule 11, or 
 intrinsic under Rule 16, may show that by "nepLew" is meant 
 " grand- nephew." 
 
 10 INTEUPUKTATION OF IJKKDa, 145
 
 * 118 RECAPITULATION. 
 
 Next, when we proceed to adduce further extrinsic evidence to 
 ascertain who is meant by " A.'s grand-nephew J. living at S.," 
 we may find that A. has two grand-nephews both named J., but 
 that neither of them lives at S. Thereupon, under Eule 
 [ * 118 ] 29, we reject the * description "living at S.," as being 
 a mere inaccurate addition. We are now confronted 
 with an equivocation, and we must endeavour to clear it up by 
 applying further ordinary evidence, extrinsic under Rule 11 and 
 intrinsic under Eule 24. But, if this fails to clear up the equi- 
 vocation, then we may in the last resort, under Eule 25, apply 
 direct evidence of intention to determine which of the two grand- 
 nephews named J. was intended by the author of the deed. 
 
 146
 
 DEEDS TAKE EFFECT FROM DELIVERY. * 120 
 
 * CHAPTER IX. [*119] 
 
 DATE. PARTIES. 
 
 Deeds take effect from delivery : " From henceforth : " Deed retain- 
 ed by grantor : Concealed deed : Want of notice to trustees : 
 Escroiv: Deed hearing false, erroneous, or impossible date or 
 no date: ^^ From the date :^^ ^^ From thedayof"&c.: De- 
 scription of parties : Names of persons and corporations. 
 
 Rule 31. — Deed takes effect from delivery. — A deed takes effect 
 from the time of its delivery, not of its date;^* Shep. Touch 72; 
 Plow. 491 (a); Clayton'' s Case, 5 Rep. 1; Goddard's Case, 2 Rep. 
 4 b.; Doe d. Whatley v. Telling, 2 East, 257; Steele v. Mart, 4B. 
 
 &C. 272(a). * 
 
 "If one covenants that J. S. shall have all his trees now stand- 
 ing, it refers to the trees standing at the time of delivery, and 
 if any be felled after the date and before the delivery, he hath 
 not anv remedv for them;" per Fleming, J., Oshey v. Hicks, Cro. 
 Jac. 263. 
 
 "The rule uniformly acted upon from the time of Claytorrs 
 Case to the present day is that a deed or other writing must be 
 taken to speak from the time of its execution, and not from the 
 date apparent on the face of it. That date is indeed to be taken 
 prima facie as the true date of execution, but as soon as the con- 
 trary appears, the apparent date is to be utterly disregarded;" 
 per Patteson, J., Browne v. Burton, 5 Dow. & Lownd., at p. 292, 
 S. C, 2 Bail Court Rep. 220, 17 L. J. Q. B. 49. 
 
 A mortgage deed, dated the 27th day of October, 
 1827, * was executed on the 23rd of August, 1834 No [ * 120 ] 
 interest was ever paid. On the 9th of February, 1854, 
 the mortgagee issued a writ of ejectment. Held, that the deed 
 
 in) As to (late, see Woolrycli on Legal Time. 
 
 ■'• The deed tiikes effect fnini tlie time of its delivery, and not I'rom its 
 date. Fowle r. Coe, (V.\ Me. ^45; Cook r. Knowles, ."W Mich. :n(); United 
 .States !•. Le I^.aron, 1!) How. 7:5; Calhoun i\ F.niisrant Co.. 93 U. S. I'M; 
 liarneord v. Kuhn, 'M\ Pa. St. :J83; Hauley i'. Wilson, 77 N. C. '216: Solomau 
 V. Evans, ?, MeC. 274. 
 
 147
 
 *120 DEED RETAINED OR CONCEALED. 
 
 was a suflBcient acknowledgment of the plaintiff's title within 3 
 & 4 Will. 4, c. 27, 8. 14. "If the deed is to be construed as 
 speaking from the time of its date, the plaintiff's right of entry- 
 was barred by the statute; but if, on the other hand, the deed is to 
 be read as speaking fi'om the time of its execution, then there was 
 a sufficient acknowledgment of the plaintiff's title within the mean- 
 ing of the statute. We are all of opinion that the deed must be 
 taken to speak from the time of its execution; ".per Pollock, C. 
 B., Jayne v. Hughes, 10 Ex. 430. 
 
 ^' From henceforth,''^ ^'' until the making^ — A demise by deed to 
 bold from " henceforth," means from the delivery, not from the 
 date; Co. Litt. 46b: Claytori's Case, 5 Rep. 1 (but see Llewelyn 
 V. Williams, Cro. Jack. 258), and includes the day of delivery, 
 because the law disregards fractions of a day. As to disregarding 
 fractions of a day, see Clarke v. Bradlaugh, 7 Q. B, D. 151. Where 
 two deeds relating to the same subject matter are executed on the 
 same day the Court will enquire which of them was executed 
 first; Gartside v. Silkstone and Dodivorth Coal and Iron Co., 21 
 Ch. D, 762. " Until the making of these presents," means up to 
 the delivery; Hedley v. Joans, Dy. 307 a, pi. 67. 
 
 Deed retained by party executing. — The operation of the deed 
 is not suspended by the fact that the party who executes it re- 
 tains it in his own custody. ^^ Deed retained by party executing: 
 see Evans v. Grey, 9 L. K. (Ir.) 539; Hall v. Palmer, 3 Hare, 
 532; S. C. 13 L. J. Ch. 352; Bythewood & Jarm. Conv. by Rob- 
 bins, vol, II. 264, et seq. 
 
 "The efficacy of a deed depends upon its being sealed and de- 
 livered by the maker of it: not on his ceasing to retain posses- 
 sion: " per Lord Cranworth in Xenos v. Wickham, L. R. 2 H. L. 
 323. See also Doe d. Garnons v. Knight, 5 B. & C. 671; AUeyne 
 V. AUeyne, 2 Jo. & Lat. 544; deed retained by covenantor and 
 cancelled, good in equity, SejiaUno v. Twitty, 2 Eq. Ca. Ab. 287; 
 S. C, Sel. Ca. Ch. temp. King. 75; as to a grantor retaining and 
 destroying a voluntary deed, see Naldred v. Gilham, 2 Eq. Ca. 
 Ab. 287; Sepalino v. Tiritty, ubi supra. See also Hope v. Har- 
 man, 11 Jur. 1097; Hall v. Palmer, 3 Ha. 532; Fletcher v. Fletcher, 
 4 Ha. 67. 
 
 ''■'" The legal effect of the delivery of a deed by the grantor to the grantee, 
 with intent to pass the title, is not altered by its subsequent delivery to, and 
 destruction by the grantor. Rogers v. Rogers, ,53 Wis. 36; nor is the legal 
 effect of execution and delivery altered by the facts that one of the objects 
 of the transaction was to save the expense and trouble of administering the 
 grantor's estate after his deutli. ;ind that the grantee, who was the grantor's 
 wife, placed the deed after delivery, where her husband, equally with her- 
 self, could have access to it. LeSaulnier i\ Loew, 53 Wis. 207. 
 
 148
 
 WANT OF NOTICE TO TRUSTEES — ESCKUW. * 121 
 
 Concealed deed. — The operation of a deed is not suspended by 
 the fact that the person entitled to the benefit of it is ignorant 
 of its existence. ^^ 
 
 * Voluntary settlement never communicated to the [*121] 
 beneficiaries, retained by the settlor and found after his 
 death among his waste papers, upheld against a subsequent volun- 
 tary settlement made public, and against a will: Clavering v. 
 Clavering, 2 Ver. 473, S. C. 7 Br. P. C. Ed. Tom. 410. See also 
 Barlow v. Heneage, Finch Prec. Ch. 211. 
 
 Mortgagor retained mortgage deed in his own possession and 
 did not communicate its existence to the mortgagee: it was found 
 after his death. Held, that it took effect from its execution and 
 was good against creditors: Extort v. Scott, 6 Sim. 31. 
 
 A., being indebted to a bank, executed a mortgage to them which 
 was retained by his solicitor till after A.'s bankruptcy, and then 
 handed over by the solicitor to the ban^. Held, that it was good 
 as against the assignee in bankruptcy; Grageon v. Gerrard, 4 Y. 
 & Col. Ex. 119. 
 
 Effect of leant of notice to trustees. — The operation of a deed 
 is not suspended by the absence of notice to trustees, where such 
 notice is essential for perfecting an assignment made by the 
 deed. 
 
 Fletcher v. Fletcher, 4 Ha. 67; Re Waifs Trusts, 2 De G. Jo. 
 & S. 365; Donaldson v. Donaldson, Kay, 711. 
 
 Escroiv. — Where an instrument is delivered as an escrow to 
 take effect as a deed on the happening of a specified event, it 
 does not take effect until that event happens;^' Watkins v. Nash, 
 L. R. 20 Eq. 262; Nash v. Flyn, 1 Jo. & Lat. 162. 
 
 ^ Where a mortgagor acknowledged the deed and left it at the proper office 
 for registration, and it was duly recorded; /(cW sufficient to perfect the de- 
 livery, altliough the mortgagee never had possession of the deed, and did not 
 know of its existence until after the death of the mortgagor. El sherry n 
 Boykin. 0,5 Ala. 3:>(i: P.undy r. Ophir Iron Co., :>« Ohio St. MOO. 
 
 '' Where a party who holds a deed as an escrow delivers the same hefore 
 cotnplian(;e with the condition upon which he received it, the grantee takes 
 no title. Robins v. Magee, 70 Ind. 38; White v. Core, 20 W. Va. 272; and 
 if the grantor has acted on the belief tliat the condition liad been complied 
 with before such delivery, he is not, by liaving acted on that belief, estopjted 
 .setting up its invalidity. liobins r. Magee. 70 Ind. Wl. .\. havinge.xccutcd a 
 deed, gave it to his attorney to deliver to I!., ui)oii tlie payment of tlic pun base 
 price by ]'>. The deed was never delivered to 11, he having abandoned the 
 contract, but was fraudulently (tbtained by a ])er.son luiknown, and recorded. 
 Under this deed bj- a regular chain of conveyance I), aopiired title. A. being 
 out of the count ry at the time, and ignorant of all these transaction.s. Jfrfd, 
 that D. acquired no title as ag.ainst A. Henry r. Car.son, i»0 Ind. IT?. lint 
 in Pennsylvania a hnud jidc purcbiuser for value takes ;i good title, though th« 
 
 14i>
 
 * 122 NO DATE, OR ERRONEOUS DATE. 
 
 " It is the ordinary and almost the invariable practice for the 
 vendor to execute the conveyance and give it to his solicitor, who 
 exchanges the deed for the purchase -money when paid by the pur- 
 chaser: but it would be a monstrous thing for the purchaser to 
 
 be allowed to say to the seller, ' you have executed the 
 [ * 122 ] deed and therefore * I need not pay the purchase-money; 
 
 and I have got the legal estate, and you must enforce 
 payment of the purchase-money as you can.' On the contrary I 
 am of opinion the purchaser has no estate until "he has the deed. 
 This I take to be the ordinary case which occurs every day 
 where the deed of conveyance is executed as an escrow;" per 
 Romilly, M. R., Walker v. Ware, &c., Raihvay Co., 35 Bea. 52. 
 See also the remarks of the same judge in Phillips v. Edicards, 
 33 Bea. 440, at p. 447; but in Kidyier v. Keith, 15 C. B. N. S. 35, 
 Williams, J., says at p. 40, "In the ordinary case of a deed exe- 
 cuted and left with the party's attorney, unless it is delivered to 
 the attorney as an escrow, not to be delivered until the considera- 
 tion money is paid or some other condition is performed, it oper- 
 ates as a perfect deed."^'" 
 
 deed was left as an escrow, and improperly delivered and recorded, without 
 performance of the condition. Blight r. Schenk, 10 Pa. St. 285; Booth v. 
 Williams, 2 W. N. C. (Pa.) 504. But where a deed executed with a blank 
 for the grantee's name, was surreptitiously and fraudulently taken from the 
 grantor's house, and the blank lilled up, no title passed, even as to a bond 
 fide purchaser for value. Van Armitage v. Morton, 4 Whart. (Pa.) 382. 
 
 3'" ]V1mt Constitutes Delivery. — Where the circumstances show unmistake- 
 ably that the one party intended to divest himself of title, and to invest the 
 other with it, delivery -svill be considered complete though the instrument 
 still remains in the hands of the grantor. Ruckman v. Rnckman, 32 N. J. 
 Eq. 259. The execution, recording and acknowledgment of a deed are 
 prima facie evidence of delivery. Burke v. Adams, 80 Mo. 504; Rigler v. 
 Cloud, 14 Pa. St. 361; Kellen. Ege, 79 Pa. St. 15; Conard v. Colgan, 55 Iowa, 
 538; Laurauce v. Farley, 24 HunT (N. Y. ) 293. But recording and acknowl- 
 edgment are not conclusive proof of delivery, but only evidence of it. Alex- 
 ander V. DeKermel, 81 Ky. 345; Chess v. Chess, 1 P. & W. (Pa.l 32; Har- 
 wood V. Steel, 4 Phila. 88; Hendricks v. Rasson, 53 Mich. 575; and the pre- 
 sumption of delivery arising from the recording of a deed may be rebutted. 
 Metcalfe v. Brandon, 60 Miss. 685; Boardmau v. Dean, 34 Pa. St. 252; Walsh 
 V. Vermont Mut. Ins. Co., 54 Vt. 351; Union Mut. Ins. Co. r. Campbell, 95 
 111. 267. A delivery of a deed to be registered is equivalent to a delivery to 
 the grantee. Sweeny v. Sweeny, 14 Lea. (Tenn.) 316; Blight v. Sehenk, 10 
 Pa. St. 285. A delivery to a third person at the request of the grantee passes 
 the title, though the deed be found among the grantor's papers at his de- 
 cease. Stinger v. Comm., 26 Pa. St. 422. When a trust deed is in the 
 possession of one of the cestuis, signed and sealed by grantor and grantee, de- 
 livery may be presumed, Wallace v. Burdell, 97 N. Y. 13. Possession of a 
 deed by the grantee is prima facie evidence of delivery, though not conclu- 
 sive. Brittain v. Work, 13 Neb. 347; Rhine v. Robinson, 27 Pa. St. 30. A 
 delivery to one of several grantees, without more, is not a delivery to the 
 others. Hannah v. Swarner, 8 Watts (Pa.), 9. But where tenants in com- 
 mon execute a deed of land, the consideration for which is fully paid by the 
 vendee, the delivery of the deed, after the death of one of the tenants in 
 common, by the other, or by .some other person in whose hands it has been 
 placed for that purpose, is a good delivery. Holt's Appeal, 98 Pa. St. 257. 
 
 150
 
 NO DATE, OR ERRONEOUS DATE. * 122 
 
 Land was vested in a trustee for the separate use of E., a mar- 
 ried woman, with power for the trustee to lease at the request in 
 
 Where the grantor vohmtarily delivered a deed to the grantee, he eannot 
 show by parol that it was a conditional delivery. "Williams r. Higgins, 69 
 Ala. 517. That the deed of a husband and wife, properly executed, was de- 
 livered by the husband against the iTistructions of the wife, will not aflect 
 the grantee, he having no knowledge of it. Edwards c. Dismukes, fjo Tex. 
 605. A conveyance by A. of laud which he owned himself, to a firm of 
 ■which he was a member, and he retained the deed, — held, that his retention 
 of the deed was a constructive delivery to the firm. Henry r. Anderson, 77 
 Ind. 361. Delivery of a deed to the husband of the grantee, with the inter- 
 tion to pass the title, vests the title in the grantee. Parker v. Parker, 56 
 Iowa, 111. 
 
 Whether, when a deed is executed and not immediately delivered to the 
 grantee, but handed to a .stranger to be delivered to the grantee at a future 
 time, it is to be considered as the deed of the grantor presently, or as an 
 escrow, is often matter of some doubt; and it will generally depend rather 
 on the words used and the purposes expressed, than upon the name which 
 the parties give the instrument. Where the future delivery is to depend on 
 the payment of money, or the performance of some other condition, it will 
 be deemed an escrow. Where it is merely to await the lapse of time or the 
 happening of some contingency, and not the performance of any condition, 
 it will be deemed the grantor's deed presently. Still it will not take effect as a 
 deed until the .second delivery. But when then delivered, it will take efl'ect 
 by relation from the first delivery. Shaw, C. J., in Fosters. Mansfield, 3 
 Metcalf, 412. 
 
 The following propositions relative to the delivery of deeds in such cases 
 seem to be well established, both upon reason and authority: 
 
 1st. Where the grantor places in the hands of a depositary a deed to be de- 
 livered to the grantee upon the death of the grantor — reserving the right or 
 power to recall the deed at any time before his death, there is no delivery, 
 and the deed passes no title to the premises described. In such cases the de- 
 positary is the agent of the grantor, and holds the deed subject to his direc- 
 tion and control. Shirely v. Ayres, 14 Ohio, 307; Ball r. For.mian, l!7 Ohio 
 St. 132; Cook r. Brown, 34 N. H. 460; Prutsman v. Baker. 30 Wis. 644; Wil- 
 liams i\ Shatz,' 42 Ohio St. 47; Jones v. Loveless. 99 Ind. 317: Davis r. Cro.ss, 
 14 Lea. (Tenn.) 6.37; Miller v. Sullman, HI Mo. 311: Stiusoii r. Anderson, 96 
 111. 373; Wellington i'. Heermans, 110 111. 564; O'Neal r. Brown, 67 Ga. '07; 
 Halet\ .Joslyn, 134 Mass. 310; Ireland v. Gerghty, 15 Fed. Eep. 35. 
 
 2nd. But where the grantor delivers the writing os his deed, to be delivered 
 to the grantee at his death, or on some future event, it is the grantor's deed 
 presently, and the depositary becomes a trustee of the grantee. Crooks v. 
 Crooks, 34 Ohio St. 610; Ball v. Foeman, 37 Ohio St. 610; Wheelright v. 
 Wheelright, 2 Mass. 152; Foster r. Mansfield, 3 Met. 412; Mathers r. Corliss, 
 103 Ma.ss. 568; Hathaway v. Payn, 34 N. Y. 92; Eckmaii r. lu'knian, 55 Pa. 
 St. 269; Stephens v. Huss, 54 Pa. St. 20; Stephens v. Khiueliart. 72 Pa. St. 
 434; Latham v. Udell, ,38 Mich. 238; Squires v. Sommers. S5 Ind. 252; Jones 
 V. Swayze, 42 N. J. L. 279. In such a case the deed ])asses a present inter- 
 est to be enjoyed in the future. Kuggles c Ijawson, 13 .Johns. 28(i: Tooley 
 V. Dibble, 2 Hill, 641; Ball r. Foeman, 37 Ohio St. 132. 
 
 3rd. To constitute a valid delivery under such circumstances tlic <lc])osi- 
 tary must have hud sucli dominion over the deed during tlie lifetime, that 
 the grantor could not interfere with it. (.'ascs cited sii/ini and iiahlwin r. 
 Maulsby, 5 Wend. 505; Maunard r. Maynard, 10 Mass. 15(i; .Jackson r. l'hii)i)s, 
 12 .lohns. 421: lirown v. Brown, 66 Me. 316: P.lack v. Hoyt. 33 Ohio St. 203; 
 Critchfield r. Critclifield, 24 Pa. St. 100. 
 
 4th. It follows from the precreding ])rineiples that where the grantor exe- 
 cutes a deed, and retains it in his own ])ossession, but ])laces it among, or 
 deposits it witli his other papers, with written directions tliat it is to be de- 
 
 151
 
 * 123 REFERENCE TO DATE. 
 
 writing of E. ; the trustee and E. agreed by parol to let the prop- 
 erty to P. ; a lease was prepared, approved of, and executed by 
 the trustee and E., but before their solicitor had parted with it, 
 and before P. had executed the counterpart, E. recalled her assent 
 to the lease; held that, as the lease was not intended to take effect 
 till it was handed over to the lessee, who was to execute a coun- 
 terpart, it was a mere escrow, and had no effect; Phillips v. Ed- 
 wards, 33 Bea. 440. 
 
 See as to voluntary deeds not parted with and executed for a 
 purpose never completed, Cecil v. Butcher, 2 J. & W. 565. 
 
 Example of Esa^ou: — Transfer of mortgage executed oy two out 
 of three mortgagees and money not paid : Gh^iffin v. Cloives, 20 
 Beav. 61; and see Cumberlege v. Latcson, 1 C. B. N. S. 709; S. C. 
 26 L. J. C. p. 120. 
 
 Rule 32. — Evidence admissible to prove true date. — Where a 
 deed bears an impossible or erroneous date, or bears no date at 
 all, evidence is admissible to prove the true date, i. e., time of de- 
 livery. ^^ 
 
 " The date of the deed many times antiquity omitted; and the 
 reason thereof was, for that the limitation of prescription, or time 
 of memory, did often in process of time change; and 
 [ * 123 ] the law was then holden, that a deed bearing * date be- 
 fore the limited time of prescription, was not plead- 
 able; and therefore they made their deeds without date, to the 
 end that they might allege them within the time of prescription:" 
 Co. Lit. 6 a. 
 
 "Also a deed is good albeit it mentions no time or place of date 
 or making, or have a false date, i. e., be dated at one time and de- 
 livered at another; and albeit it have an impossible date, as the 
 30th of February and the like, for anciently until the time of Ed. 
 2nd and Ed. 3rd, the deeds bore no date; because the law was 
 then held to be, that if a deed were dated before the time of 
 memory it was not pleadable, except it were of record, but it 
 miorht have been given in evidence. But he that doth plead such 
 
 livered after his death, there is no delivery, and the deed is of no effect. See 
 cases cited above, and also Davis v. Williams, 57 Miss. 843; O'Neal c. Brown.^ 
 67 Ga. 707; Goodlet r. Kelly, 74 Ala. 213; Jones v. Loveless, 99 Ind. 317: 
 Wellington v. Heermans. 110 111. 5G7. 
 
 '^^ Obligatory documents, inclnding deeds, bonds, and negotiable paper, are 
 presumed to have been delivered on the date they bear. Fowler r. Mellville, 
 11 How 375; Smith r. Porter, 10 Gray. 66; Costigan v. Gould, 5 Demo, 290; 
 Swingston v. Arnoux. 56 N. Y. 518: Claridge r. Klett. 15 Pa. St. 255; Meadows 
 V. Cozart, 76 N. C. 450. T^liere there is no date the time of execution and 
 delivery may be proved by parol: and extrinsic evidence is admissible, either 
 of execution or of delivery, is not that set forth in the document. Sweetzer 
 V. Lowell. 33 Me. 446; Clarke v. Houghton, 12 Gray. 38; Draper v. Snow, 20 
 N. Y. 331: Serwiss v. Stockstill, 30 Ohio St. 418. 
 
 152
 
 TERM COMMENCING FROM DATE. * 1 24 
 
 a deed without any date, or with such an impossible date, must 
 set forth the time when it was delivered (Dodson v. Kayes, Yelv, 
 193), and support the averment by proof;" Shep. Touch. 55. 
 
 The date of a deed is not of the substance of a deed: for if it 
 hath no date, or hath a false or impossible date, as the 30th day 
 of February, yet the deed is good; Goddard's Case, 2 Rep. 46. 
 
 Debt on obligation " dated the 10th October, but lirst delivered 
 the 30th March," good. " For God forbid, when a deed is duly 
 made, that by negligence or mistake of the clerk in writing the 
 date, the party should lose the whole benefit of the deed and be 
 without remedy;" Stone v. Bale, 3 Lev. 348. 
 
 See also Hall v. Cazenove, 4 East, 477; Steele v. Mart, 4 B. & 
 
 C. 272; Cooper v. Robinson, 10 Mee. & Wels. 694; Cox v. Day, 
 10 East, 428. 
 
 Rule 33. — Reference to " date,^' how construed. — Where a deed 
 bears no date, or an impossible date, and in the deed reference is 
 made to the "date," that word must be construed "delivery ;" 
 but if the deed bears a sensible date, the word '* date,'^ occui-ring 
 in the deed, means the day of the date, and not that of 
 the delivery; Styles v. * Wardle, 4 B. & C. 908; S. C. 7 [ * 124] 
 
 D. & R. 507; Woodfall, p. 138 (12th ed); Cockell v. 
 Gray, 6 J. B. Moo. 483. 
 
 " If an indenture of lease bear date which is void or impossible, 
 as the 30th day of February, or the 40th of March, if in this case 
 the term be limited tq begin from the date, it shall begin from 
 the deliveiy, as if there had been no date at all. And so it is, if 
 a man by indenture of lease, either recite a lease which is not, or 
 is void, or misrecite a lease in esse, in a material point, to have 
 and to hold from the ending of the former lease, this lease shall 
 begin in course of time from the delivery thereof;" Co. Lit. 46 
 B. See the Bishop of Bathes Case, 6 Rep. 34 b., and Annitt v. 
 Breame, 2 Ld. Raym, 1076. 
 
 Rule 34. — " From the day of," <S:c. — A term limited to com- 
 mence from the day of the date, or from the date of the deed, or 
 from a certain day, will be taken to include or exclude that day 
 according to the subject-matter of the deed.'*' 
 
 ^' The date at which a lease begins is determinable by the context. When 
 the term is declared to bej^in ^' wilk the makin;^ hereolV' or " from Iiencc- 
 forth," without reference to any date <iiven in the body ol' the document, tlie 
 terra bcjiins on tin; day of execution and delivery, iucliidintr that day: if tlie 
 term begins ''from the makin<r liereof " or ''from the day of delivery." then 
 the day of making or delivery, is excluded. When w liability is to begin at a 
 specific day {c. <j. rent from .January 1st) and to end after the Iai)se of u 
 designated time, then the first day is excluded, and the last day is included 
 
 153
 
 * 125 TERM COMMENCING FROM DATE. 
 
 Examples. — Lease for lives, habendum a datu; Hatter v. Ashe, 
 3 Lev. 488; S. C. 1 Lord Raym. 34; and lease for lives to begin 
 from the day of the date thereof; Freeman d. Vernon v. West, 2 
 Wils. 165; held, to include the day, as otherwise the lease would 
 be void as granting a. freehold to commence in futuro. 
 
 Power to lease for twenty-one years in possession; lease granted 
 to commence from the day of the date; held, a good lease (Lord 
 Mansfield's judgment discusses all the prior authprities) ; Pugh v. 
 Leeds, Cowp. 714. 
 
 Lease for twenty-one years from the 25th March, 1809; held, 
 not to expire till the end of 25th March, 1830, Lord Denman, C. 
 J., saying, "The general understanding is, that terms for years 
 last during the whole anniversary of the day from which they are 
 granted;" Aekland v. Lutley, 9 Ad. & El. 879; see Woodfall, p. 
 137 (12th ed.). 
 
 See the cases collected in Wilkinson v. Gaston, 9 Q. B. 137. 
 
 [ * 125 ] * Miscellaneous. 
 
 Evidence is admissible to explain au erroneous reference to the 
 date of another instrument; Honyivood v. Honyivood, 2 Y. & C. 
 C. C. 471. 
 
 A day ^^noiv last past ^^ means last preceding the day of the 
 delivery, not of the-date; Steele v. Mart, 4B. &C. 272. 
 
 Where by a deed made in August, 1832, being leap-year, a 
 party covenanted to pay a sum of money on 29th February next 
 ensuing, the words " 29th February then next " were construed 
 to mean 29th February in the next leap-year; Chapman v. 
 Beecham, 3 Q. B. 723: S. C. 3 Gale & Da v. 71. 
 
 in the period of liability. Oatman v. Walker, 33 Me. 71; Blake v. Cro^NTiin- 
 shield, 9 N. H. 304; JBigelow v. Wilson, 1 Pick. (K Y.) 485; Farwell v. 
 Eogers, 4 Cush. 460; Sands v. Lyon, 18 Conn. 28; Weeks v. Hull, 19 Conn. 
 376; Cornell 1). Moulton, 3 Denio, 12; Thomas v. Afflick, 16 Pa. St. 14; Cleve- 
 land V. Sterrett, 70 Pa. St. 204. " The general understanding is that terms 
 of years last during the whole anniversary of the day from which they are 
 granted. If this were otherwise, the last day, on which the rent is almost 
 uniformly made payable, would be posterior to the lease." Per Cur. in 
 Aekland v. Lutely, 9 A. & E. 879. Though ordinarily when service is to be- 
 gin from the first of the month it excludes that day. Pugh v. Leeds, 2 Cowp. 
 714; Bigelow v. Wilson, Pick. 486; yet it will be construed to begin on a 
 designated day so as to include that day, if such appears to have been in- 
 tended by the parties. Pugh v. Leeds, supra; Bigelow r. Wilson, sxprn. A 
 policy of insurance " from 14th February to 14th August" includes the 14th 
 of August, on which a fire takes place. Isaacs v. Ins. Co., L. R. 5 Ex. 296. 
 But where a policy of insurance covered goods to be shipped "between Febru- 
 ary 1st and July 15," it was held not to cover goods shipped on July loth. 
 Atkyns v. Ins. Co., 5 Mete. (N. Y.) 439. In Pennsylvania it has been held 
 that a contract to complete a work "by the first of November " requires that 
 the work be done before November sets in. Rankin v. Woodworth, 3 P. & 
 W. (Pa.) 48; see Miller v. Phillips, 31 Pa. St. 221. 
 
 154
 
 DESCRIPTION OF PARTIES. * 126 
 
 Parties. 
 
 Rule 35. — Evidence to correct description of parties. — Evi- 
 dence may be adduced to correct an en'oneous or imjx'rfect de- 
 scription of the parties.*" (See 1 Dav. Free. 41.) 
 
 " The name of the persons in grants is set down only to dis- 
 tinguish persons, and to make the person intended certain; and, 
 therefore, howsoever it be best and most safe to describe the per- 
 son by his true and proper name of baptism, and also by his sur- 
 name, and if it be a corporation, by the true name whereby the 
 corporation is made, yet mistakes in this case, unless they be very 
 gross, will not make void the grant; nihil facit error nominis cum 
 de corpore constat ; " Shep. Touch. 233. 
 
 Name of baptism. — "Regularly it is requisite that the pur- 
 chaser be named by the name of baptism and his surname, and 
 that special heed be taken to the name of baptism; for that a man 
 cannot have two names of baptism, as he may have divers sur- 
 names;" Co. Litt. 3 a; MacDonnosh v. Stafford., Palm. 100. In 
 strictness all the names of baptism compose but one christian 
 name; per Sir W. Scott, Pougett v. Tomkyns, 3 M. & S. 262, n. : 
 see also Scott v. Soans, 3 East, 111; Evans v. King, Willes, 554; 
 see Y. B., 9 Ed. 3, p. 14, pi. 18. 
 
 * " If the person be so described that he may be cer ■ [ * 126 ] 
 tainly known from other persons, the omission, or in some 
 case the misprision, of the name of baptism, shall not avoid the 
 grant; as a gift, omnibus filiis J. <S.,' or '■primo genito filio [a), J. *S.,' 
 or 'uxori de J. S.,' or, 'filial de J. S., when there is but one. The 
 name of baptism of the Abbot of W. was Richerus, and he, by the 
 name of Richardus, Abbot de W., made a grant; and although 
 his name of baptism was mistaken, yet because the other words, 
 sc. Abbas de IF.,' did certainly describe the person, for this cause 
 the grant, notwithstanding the misprision of the name of bap- 
 tism, was good. So, if a grant be made to J. S. et Margaritce 
 uxori sua', where the wife's name is Marion, yet the grant is good, 
 although the name of baptism be mistaken, Jbecause uxori suai is 
 
 (a) '■ Eldest " son. — That an " eldest" includes an only son, see Tuile v. 
 Berminghain, L. R. 7 E. & I. App. 6.34; see further as to the meaning of 
 "eldest son," Bathurst v. Erriuf/toii, 2 App. Ca.s. 698; Meredith v. Trrffrji, 12 
 Ch. D. 170; Re Bayleys Settlement, L. Iv. (J Ch. 590, see post. Chapter on 
 Eldest Son, p. .3:57. 
 
 *" Error of expression is unessential when there is no error as to the thing 
 referred to. The name is mutable and immaterial; it is the thing intended 
 alone that is immutable and jnaterial, when the operation of a deed or a 
 contract is to be considered. CoDsequently a designation of an individual can 
 be.corrected V)y parol so as to lo l)ring out tlic jicrson inlrndcd in tlic iIdcu- 
 ment, and evidence is admissible to show that a grantor executed a deed l)y 
 other than his real name. Nixon v. Cobleigh, r>2 111. '.)X7: Aultman r. Kich- 
 ardson, 7 Neb. 1: Also that persons named as beneliciaries were not tho.se 
 really intended. LangloLs v. Crawford, .59 Mo. 456. 
 
 155
 
 •* 127 FALSE ADDITION. 
 
 a certain description of the person;" Dr. Ayray^s Case, 11 
 Bep. 21 a. 
 
 Party described by incorrect name. — Where a person is de- 
 scribed in a deed, and executes it, by the name by which he 
 usually passes, which is not his correct name, the deed will be 
 upheld on evidence of identity being given; Addis v. Power, 7 
 Bing. 455; Shaiv v. Hunt, 8 Taunt. 645; Williams v. Bryant, 5 
 M. & W. 447; GouJd v. Barnes, 3 Taunt. 504. . 
 
 Where a man was called by an incorrect name throughout a 
 deed, but executed it by his correct name, the deed was upheld as 
 his deed; Janes v. Whitbread, 11 C. B. 406, 413. See Viner Abr. 
 Tit. Faits, B. 
 
 Firm. — Where a firm is made a party to a deed, evidence is ad- 
 missible to show who in fact constituted the firm at that time; 
 Lindley (4th ed.), 208; Carruthers v. Sheddon, 6 Taunt. 14; 
 Maiighham v. Sharpe, 17 C. B. N. S. 443; 34 L. J. N. S. C. P. 19. 
 Class. — The individuals composing a class which is capable 
 of being ascertained may be made parties by the name 
 [*127]of *that class, as "all a man's creditors;" Gresty y. 
 Gibson, L. R. 1 Ex. 112; Reeves v. Watts, L. R. 1 Q. B. 
 412; Isaacs v. Green, L. R. 2 Ex. 352; M'Laren v. Baxter, L. R. 
 2C. P. 559; see supra, Chap. IV., p. 48. 
 
 Corporation. — Though a corporation should be described by its 
 proper name, i.e., by the name by which it was incorporated, it is 
 sufficient to use such name as will identify it; Dr. Ayray's Case, 
 11 Rep. 18 b; Croydon Hospital^!. Farley, 6 Taunt. 467; see also 
 The Dutch West India Co. v. Van Moses, 1 Stra. 612: Fanshawe's 
 Case, Moo. 228; Mariot v. Mascal, And. 202; Pits v. James, Hob. 
 121; Button v. Wrightman, Ross. 56; Grant on Corporations, p. 
 50, et seq. 
 
 The king incorporated a borough by the name of the Mayor 
 and Burgesses of his borough of Lynne Regis, commonly called 
 King's Lynne : a person became bound to the corporation in a 
 bond by the name of the Mayor and the Burgesses of Lynne 
 Regis. Held, that the bond was good. The name of a corpora- 
 tion in grants or conveyances need not be idem sijllabis sen, tier- 
 bis; it is sufficient if it be idem re et sensii: Mayor and Bur- 
 gesses of Lynne' s Case, 10 Rep. 1226; and see i^'mc/j's Case, 6 
 Bep. 65a. 
 
 A false addition to a party will not vitiate the deed, where it 
 is clear what person is meant. 
 
 Conveyance made to Rodolfe Evers, Knight, Lord Evers : held, 
 
 that the conveyance was good, though at the time it was made he 
 
 was not a knight or reputed to be a knight; Evers y. Strickland, 
 
 1 Bulstrode, 21; S. C. sub nom. Ewrev. Strickland, Cro. Jac. 240; 
 
 1.5A
 
 CHANGE OF NAME. * 128 
 
 though it has been said that a grant to a knight by the name of 
 Esq, is void, Eex v. Bishop of Chester, 1 Ld. Kay. 303. 
 
 Bastard. — A bastard can be made a party by his name of re- 
 putation; Co. Litt. Sb; and he may be described as the " son " of 
 his reputed father when he has acquired the reputation of being 
 so; 6 Rep. 65a. See as to gifts to illegitimate children by will, 
 Elph. Introd. Conv. 3rd ed. 427, post, Chapter on Children, Rule 
 182, p. 331. See as to name, Wilson v. Brockley, 1 Phiilim. Eccl. 
 Rep. 132. 
 
 * Reputed zvife. — Where a woman who had gone [ * 128 ] 
 through the ceremony of marriage, which was after- 
 wards discovered to be invalid, executed a deed by the descrip- 
 tion of " Eliza, the wife of " the reputed husband, the description 
 was held sufficient; Boughton v. Sandilands, 3 Taunt. 342. See 
 as to gifts to a reputed wife by will, Elph. Introd. Conv. 3rd ed, 
 426. 
 
 Divorced woman. — As to the name of a woman who has been 
 divorced, see Fendall v. Goldsmid, 2 P. D. 263. 
 
 Change of surname.^A man may change his name, i.e., his 
 surname, as often as he likes, no fraud being intended; per Tin- 
 dal, C.J., Daviesy. Lowndes, 2 Scott, 103; 1 Bing. N. C. 618. See 
 also Doey. Yates, 5 B. & Aid. 544; Leigh v. Leigh, 15 Ves. 100; 
 Re Matthews, 16Beav. 245; Re James, 5 Ex. 310; Re Dear don, 5 
 Ex. 740 
 
 That a person may take any surname : see Barlow v. Bateman, 
 3 P. Wms. 65 ; Doe d. Luscombe v. Yates, 5 B. & Aid. 544. 
 
 See, further, as to parties, names, and descriptions. Cruise, Dig. 
 Tit. xxxii., Deed, eh. xxi., ss. 7 et seq. ; 3 Dav. Prec. 357, note (m); 
 Elph. Introd. Conv,, 3rd ed., p. 59, et seq. 
 
 ir,T
 
 * 130 OPERATIVE PART NOT CONTROLLED BY KECITALS, 
 
 [*129] * CHAPTER X„ 
 
 RECITALS. 
 
 Variance between recitals and operative part : Descriptions gen- 
 eral and specific : Recital of agreement for sale : Parcels, 
 hoiv affected by recitals: Covenants: Releases: Misrecitals: 
 Estoppel by recital : Recital creating covenant 
 
 Rule 36. — Operative part, if clear, not controlled by reci- 
 tals. — Where there is a discrepancy between the recitals and the 
 operativt part of a deed, the operative part, if clear and unam- 
 biguous, must be followed. 
 
 Coroll. — Specific description in operative part. — A specific de- 
 scription of property, or a specific description of what is intended 
 to be done contained in the operative clauses, will not be con- 
 trolled by a general description, or a general or ambiguous state- 
 ment, contained in the recitals.*' 
 
 "The reciting part of a deed is not at all a necessary part 
 either in law or equity. It may be made use of to explain a 
 doubt of the intention and meaning of the parties, but it hath no 
 effect or operation. But when it comes to limit the estate, there 
 the deed is to have its effect according to what limitations are 
 therein set forth, and that is plain and full, without any manner 
 of contradiction whatsoever;" per Holt, C. J., Bath & Mounta- 
 gue's Case, 3 Ca. Ch. 101. 
 
 " When the words in the operative part of a deed of convey- 
 ance are clear and unambiguous, they cannot be con 
 [ * 130] trolled by the recitals or other parts of the deed; " *pf?r 
 Patteson, J., Walsh \. Trevanion, 15 Q. B. 751; 19 L. 
 J. Q. B. 458; U Jur. 1134 
 
 *' A recital in a deed that it is executed " per agreement " does not incor- 
 porate the agreement into the deed so that the covenants therein contained 
 will run with the land. Close v. Burlington, &c., Ry. Co., 64 Iowa, 149. 
 Where land is conveyed by metes and bounds, whether there be more or 
 less than the quantity named in the deed, the purchaser receives the whole 
 of it. Benton r. Hor.'^ely, 71 Ga. 619; Guilmartin v. Wood, 76 Ala. 204; 
 Armstrong v. Brownlield, 32 Kan. 116. 
 158
 
 OPERATIVE PART NOT CONTROLLED BY RECITALS. * 131 
 
 " Where the operative part of the deed uses language which 
 admits of no doubt, it cannot be controlled by the recital;" Bai- 
 ley V. Lloyd, 5 Russ. 344. 
 
 "It is of the greatest consequence to keep distinct the different 
 parts of deeds, and to give to recitals and to the operative part 
 their proper effects. I have always held that where the recitals 
 and the operative part of a deed are at variance, the operative 
 part must be officious, and the recitals inofficious. I do not say 
 inoperative, for the recitals may be useful in explaining ambig- 
 uities;" per Romilly, M. R., Young v. Smith, L. R. 1 Eq. 183; S. 
 C. 35 Beav. 90; 11 Jur. N. S. 963. 
 
 "It is impossible by a recital to cut down the plain effect of 
 the operative part of a deed;" per Romilly, M. R., Uolliday v, 
 Overton, 14 Beav. 467. 
 
 " The rule is that a recital does not control the operative part 
 of a deed where the operative part is clear;" per Jessel, M. R., 
 Daiues v. Tredicell, 18 Ch. D. 358. 
 
 " I am not aware of any authority in which a clear, precise, 
 and specific description of property in the operative part of a 
 deed has been controlled at law by the effect of mere recitals, or 
 by inference from the covenants or subsequent parts of the deed; " 
 per Jessel. M. R., Hoicard v. Earl of Shreicsbury, L. R. 17 Eq. 
 394; see also Re Oicen's Trust, 1 Jur. N. S. 1069. 
 
 " If there is any doubt about the construction of the governing 
 words of that document, the recital may be looked at in order to 
 determine what is the true construction; but if there is no doubt 
 about the construction, the rights of the parties are governed en- 
 tirely by the operative part of the writing or deed;" per Brett, 
 L. J., Leggott v. Barrett, 15 Ch. D. 311. 
 
 Examples. — Bond. — Where a bond was taken in the penalty 
 of £1000, held that the penalt}-^ could not be cut down to £500 by 
 a recital that the parties had agreed to execute a bond for that 
 amount; Ingleby v. Swift, 10 Bing. 84. 
 
 Covenant. — If a deed contain an absolute covenant 
 not to do a * certain act, such covenant will not be con- [ * 131 ] 
 trolled by a recital that the parties intended that, on the 
 payment of a sum of money for liquidated damages, it might be 
 done; Bird v. Lake, 1 H. & M. 111. And see post, p. 468. But 
 an ambiguous covenant may be explained by recitals; Re MiclielVs ' 
 Trusts, 9 Ch. D. at p. 9. 
 
 Conveyance. — Two partners, to secure a partnership debt, con- 
 veyed certain joint property particularly described in the deed, 
 " and all other the hereditaments of tliein, or ciflicr of thcni, situ- 
 ate elsewhere in the town of M.," l)ut the recitals, covenants, and 
 provisions in thf^ deed, related suloly to the joint property; Uehl, 
 that the deed extended to a se[)arate estate of one of the partners 
 situate in M. ; Ex parte Young, 4 Deac. 185. 
 
 By articles reciting that A. had agreed to give a mortgage of 
 
 150
 
 * 132 OPERATIVE PART NOT CONTROLLED BY RECITALS. 
 
 " hia freehold estates at I., subject to the charge affecting the same,^' 
 A. agreed to execute a mortgage of " all bis lands, tenements, 
 and hereditaments, at or near I. aforesaid ;" held, that copyhold 
 property and also free-hold property, not subject to the charge, 
 was subject to the agreement; Ex parte Glyn, 1 M. D. & De Gex, 
 29. 
 
 Transfer of mortgage. — Transfer of a mortgage containing a 
 recital that " in the now reciting indenture a power of sale is con- 
 tained for the better securing of the principal sum and interest, 
 but the said power has not been, and is not intended to be exer- 
 cised," followed by assignment of the moneys due on the mort- 
 gage, " and all powers and remedies for recovering the same sums 
 respectively, and all benefit of the said several indentures of mort- 
 gage, and of every covenant and security therein respectively con- 
 tained;" held, that the power of sale in the recited mortgage was 
 capable of being exercised: Boyd v. Petrie, L. K. 7 Ch. 385. 
 
 Settlement. — A marriage settlement recited an agreement that 
 the future property of the wife should be settled, but the cove- 
 nant to settle was by the husband alone; held, that the vvife was 
 not bound; Young v. Smith, 35 Beav. 87; L. R. 1 Eq. 180: Ham- 
 mond V. Hammond, 19 Beav. 29: Dawes v. Tredwell, 18 Ch. D. 
 354. Re Webb's Trusts, 46 L. J. Ch. 769; and see post, p. 505. 
 And conversely, where the recital was of an agreement that the 
 husband should covenant to settle the after- acquired 
 [ * 132 ] property of * the wife, followed in the operative part of 
 an agreement by all parties and a covenant by the hus- 
 band to settle it; held, that the property afterwards given tc) the 
 separate use of the wife was bound; Willoughby v. Middleton, 2 
 J. & H. 344. 
 
 Settlement reciting agreement to settle five distinct denomina- 
 tions of lands, specifically described; grant to trustees of three 
 only of the denominations; held, that the omitted denominations 
 were not bound by the trusts of the settlement; Macnamara v. 
 Carey, 1 Ir. Rep. Eq. 9. See Barratt v. Wyatt, 30 Beav. 442, S. 
 C. 31 L. J. Ch. 652; 6 L. T. N. S. 801. 
 
 A marriage settlement contained a recital of an agreement to 
 settle a certain estate " except the town and lands of B. and its 
 sub-denominations." The operative part conveyed inter alia K., 
 ' which was one of the sub-denominations of B. ; held, that it passed ij 
 Alexander v. Crosbie, LI. & Goo. 145. Seejier Sugden, C, at p. 
 152. 
 
 Recital of agreement for sale followed by receipt for purchase 
 rrioney. — The rule must be applied with some caution, for, bear- 
 ing in mind that an agreement for the sale of property, accom- 
 panied by the payment of the purchase money, operates as a con 
 veyance in equity, it appears that a recital of an agreement for 
 the sale of Blackacre and Whiteacre for a certain sum, followed 
 by a conveyance, "in pursuance of the recited agreement and in 
 160
 
 OPERATIVE PART CONTROLLED BY RECITALS. * 13,'i 
 
 consideration of the said sum of £ (the receipt, &c.)" of 
 
 Bkickacre only will operate iu equity as a conveyance of White- ' 
 acre also. But a recital of ai; agreement ior the sale of Blackacro 
 for a certain sum, followed by a conveyance of Blackacro and 
 "Whiteacre for that sum appears to fall within the rule. 
 
 Rule 37. — Ambiguous operative part controlled by recitals.—^ 
 "Where the operative part of a deed is ambiguous, it may be coi;- 
 trolled by clear and unambiguous recitals. 
 
 Coroll. — Sjx'cijic statement in recitals not enlarged by general 
 statement in operative part. — A specific description of property 
 or a specific statement of what is intended to be done, 
 contained in the recitals, will not be enlarged * by a [*13;] ] 
 general description, or a general or ambigiaous state- 
 ment contained in the operative clauses. See Dart V. & P. (r)th 
 ed.) p. 522; 1 Dav. Free. 4th ed., p. 51; Burton, Corap. sec. 530: 
 Danby v. Coutts, 29 Ch. D. 5(X): S. C. 33 W.. R. 559; 54 L. J. Ch. 577. 
 
 " We may consider it settled by authority that where the words 
 of a covenant are ambiguous and difficult to deal with, we may 
 resoi't to the recitals to see whether they throw any light on its 
 meaning; ' per Jessel, M. R., Re MichelVs Trusts, 9'Ch. D. 9. 
 
 "If the operative part of a deed be doubtfully expressed, 
 there the recital may safely be referred to as a key to the inten- 
 tion of the parties; " per Leach, M. R., Bailey v. Lloyd, 5 Russ. 
 344. 
 
 " As to the construction of the settlement, I do not dispute th(> 
 propoi^ition which was argued, that if you find in a settlement re- 
 citals indicating various parcels enumerated, from whence it is 
 to be inferred, from reading the recital alone, that these parcels, 
 and these alone, are to be included in and made subject to the 
 provisions of the deed, but yet you find that in the operative 
 part of the deed one or two of these parcels are omitted (a), tho 
 Court may be of opinion, upon the construction of the deed, that 
 the parcels which are omitted in the operative part are omitted 
 by mistake (b), and are not included in the provisions of th(> 
 deed. And the converse of that proposition is also true; jjarcol:-. 
 may be included in the operative part of the deed which the re- 
 citals and the rest of the deed show to have been inserted ther(> 
 by mistake. There are several cases to that effect, and amongst, 
 them the well-known case, before Lord Mansfield, of Moore v. 
 Magrath (1 Cowp. 9)," per Romillv, M. R., Barrett \. Wyait, 30 
 Beav. 443, S. C. 31 L. J. Ch. G52; G L. T. N. S. 801. 
 
 (a) See Mncnamara v. Carey, 1 Ir. Etj. Rep. 9, rited nup. p. 132. 
 (h) Sic. But <ju('ry " are omitted and are not iii( liideil. (."tc. Ly mistake." 
 11 INTElil'KETATIOX OF DEEDS. 161
 
 * 135 OPERATIVE PART CONTROLLED BY RECITALS. 
 
 " Though the words used might by themselves be cap- 
 [ * 134 ] able of a different meaning, we may call in aid the * re- 
 citals to explain them . . . The light course is to con- 
 strue it [the instrument] by the light of the recitals, " per Chan- 
 nel!, B., Gwijn V. Neaih Canal Co., L. K. 3 Ex^'210. And see per 
 Patteson, J., in Walsh v. Trevanion, 15 Q. B. <51; S. C. 19 L. J. 
 Q. B. 458; 14 Jur. 1134. 
 
 " Where tbe recital is that you intend to convey certain speci- 
 fic property, and the general words in the habendum, including 
 'interest,' and the like, are sufficiently large to carry other prop- 
 erty which is not specified and is distinct from that which is spe- 
 cified in the recital, that other property does not pass:" x>er Lord 
 Romilly, M. Ji.^Neame v. Moorsom, L. R. 3 Eq. 97. 
 
 " Nothing I consider is better settled than that these general 
 words, even where they would pass the land ex vi ierminoram, 
 are restricted by the recitals and what is called the scope of the 
 instrument. The principle is, that though words of specific de- 
 scription are not easily dealt with, yet general words are; and 
 that although general words may be in themselves large enough, 
 yet if, upon the whole scctpe of the instrument, as to which espe- 
 cial regard is to be had to what I call introductory recitals, it 
 appears it was not the intention of the parties to pass those prop- 
 erties, it will not pass them;" pe?^ Jessel, M. R., ifo?rarcZ v. Earl 
 of Shretvsbnry, L. R., 17 Eq. 391. 
 
 Examples. — Where the operative part of a deed (which was 
 not by way of present conveyance but of covenant) appeared to 
 have been intended to follow, but did Bot accurately follow, the 
 words of a recital, the effect of the operative part was limited to 
 the extent pointed out by the recital : Re NeaVs Trusts, 4 Jur. 
 N. S. G. 
 
 "Parcels. — All that the one equal eighth part or share, or other 
 the part or share, parts or shares, &c.," restricted by the recitals 
 to one-eighth share; Gray v. Earl of Limerick, 2 De G. & Sm. 3 lO. 
 Conveyance of "all the lands, &c., of A. & B., situate in" 
 [* 135] eight parishes (naming them) "and which are * in- 
 tended to be specified and described in the schedule 
 hereunder written, but which schedule is not intended to abridge 
 or affect the generality of the description hereinbefore expressed 
 and contained;" restricted by the recitals to the property com- 
 prised in the schedule; Walsh v. Trevanion, 15 Q. B. 733 : S. C. 
 19 L. J. Q. B. 458; 14 Jur. 1134. 
 
 Recital that by virtue of certain deeds, certain specified here- 
 ditaments, " and all other the hereditaments in the county of Y. 
 hereinafter expressed to be appointed and released," stood lim- 
 ited as settlor should appoint, and subject thereto to him in fee; 
 and of an agreement for the settlement of the estates in the 
 county of Y.^ " hereinafter mentioned and intended to be hereby 
 conveyed," followed by an appointment and conveyance of the 
 162
 
 OPERATIVE PART CONTROLLED BY RECITALS. * 136 
 
 specified horeditaments mentioued in the recital, and " all other 
 tile hereditaiueuts in the couuty of Y., of or to which the grantor 
 was sei:!;ed for an estate of inheritance;" Held, that au estate in 
 the county of Y., of which the grantor was seised, but which was 
 not specihcally mentioned in the recited deeds or the parcels in 
 tlje conveyance, did not pass; Jenncr v. Jenner, L. R. 1 Eq. 3()1. 
 
 Lease, reciting former demise of the parcels, described as '* 59 
 acres provincial measure;" and an intention to demise the "said 
 estate," demised "the same being 45 acres statute measure;" Held, 
 that the soil of a road which had been made and set out between 
 the times of making the leases, and was part of the parcels com- 
 prised in the first lease, passed by the second; Doed.White v. Os- 
 born, 4 Jur. 941. 
 
 Settlement. — Settlement, reciting an agreement that a moiety 
 of all such property as A. B. should at any time during the cov- 
 erture be or become seised or possessed of, or interested in or en- 
 titled unto, should be settled: A. B. covenanted that in case any 
 lands should at any time during the covei'ture accrue unto or vest 
 in him upon the death or by ihe settlement or devise of any per- 
 son, he should convey one moiety to the trustee. Held, that land 
 of which A. B. was tenant in tail in remainder subject 
 to the life interest - of his father, but defeasible by his [ * 13G ] 
 father making an appointment, was subject to the cove- 
 nant; Maclurgan v. Lane, 7 W. R. 135; 10 Jur. N. S. 5G, 59. 
 
 By a settlement, made in 1820, £3(>,0()0 was settled in trust 
 for a woman for life, with remainder for children as she should 
 appoint, and in default of them equally, the shares of sons to 
 vest at twenty-one, of daughters at twenty-one or marriage; there 
 were two children, a son and a daughter: the mother appointed 
 £10,000 to the son on his marriage: the settlement made on his 
 marriage in 1850, recited that he was entitled to £10,000, and 
 also entitled to the rest of the fund contingently on the death of 
 his sister under twenty-one unmarried, without prejudice to the 
 trusts of the settlement of 1820, and an agreement to setilo the 
 £10,000 and "all other his part, share, and interest, as well vested 
 as contingent" in the trust funds. The son then assigned his 
 interest in the same terms. Tbo daughter attained twenty-cno 
 and died, and the mother appointed the residue of the funds to 
 her son. Held, that it did not pass under the settlement; Cldl- 
 ders V. Eardley, 28 Beav. G48. 
 
 Ominsion of name from operative 2yart. — Where a deed, to which 
 a married woman was party, and which was acknowledged by 
 her, contained recitals of an agreement for the sale of lands 
 in which her husband was interested, free from incumbrances; 
 and that she and her huslmnd had agreed to join in the same for 
 the pur I loses thereinafter menticnied; but her name was omitted 
 throughout the operative part and the covenant for title. Held, 
 that her dower was barred, reliance being placed on the fact that 
 
 163
 
 * 138 RELEASE. 
 
 if the wife's dower was not bound, she would have executed a deed 
 in the most solemn manner known to the law and have passed 
 nothing by it; Dart v. Clayton, 4 N. K. 221; S. C. 33 L. J. Cli. 
 N. S. 503; 10 Jur. N. S. 671; 12 W. R. 903 (sub nom. Dent v. 
 Clayton). 
 
 Appointment of neiv trustees. — Conveyance by retiring to new 
 trustee of specilic parcels, " and all other moneys, secnnties, pro- 
 perty, and effects, now vested jointly in the retiring and continu- 
 ing trustee;" Held, on consideration of the recitals, the 
 [ * 137 j * witnessing part, the state of the property, and mode 
 of dealing with it, not to pass leaseholds not specifically 
 mentioned; Hojikinson v. Lusk, 34 Beav. 215; 10 Jur. N. S. 288. 
 
 Covenants ajyj^arently dependent. — Covenants apparently de- 
 pendent sliown by x'ecitals to be independent; Lloyd v, Lloyd, 2 
 My. & Cr. 192. 
 
 Bond. — Bond for the good behaviour of A. "so long as he 
 shall continue deputy- postmaster," with a recital that he had been 
 appointed for six months. Held, that the bond was restricted to 
 his behaviour during the six months. Lord Arlington v. Merricke, 
 2 Wms. Saund. 411 (p. 813, ed. 1871). 
 
 Miscellaneous. — For other instances of the statements in the 
 operative oart being coutrolled by the recitals, see Moore v. Ma- 
 grath, 1 Cowp. 9; S. C. Lofft, 398 (parcels restricted); Denison 
 V. Holiday. 1 H. & N. 631; S. C. 3 H. & N. 670 (parcels i;_e- 
 stricted); Hunt v. White, 37 L. J. Ch. 326; S. C. 16 W. K 4(8 
 (covenant for quiet enjoyment restricted); Chohnondeley v. Clin- 
 ton, 2 J. & W. 1; S. C. 2 Mer. 171; 4 Bligh, 1; 2 B. & Aid. 625 
 (limitations explained); Lampon v. Corke, 5 B. & Aid. 606; S. 
 C. & 1 D. & Ry. 211 (receipt qualified, see this case discussed in 
 Bottrell V. Summers, 2 Y. & J. 407); Re Daniel, 1 Ch. T>. 375, 
 where the construction of the usual trusts for children in a set- 
 tlement in which the trusts for daughters were omitted, was aided 
 by a recital of an intention to provide for "children." General 
 power to attorneys to manage property restricted by ,a recital of 
 a desire to appoint the attornevs 'during my absence from Eng 
 land;' Danby v. Coutts, 29 Ch.'D. 500: S. C." 54. L. J. Ch. 577; 
 33 W. R. 559. 
 
 Releases. — The most striking instance of the generality of the 
 operative words being controlled by the recital occurs in a release. 
 
 " If a release is given on a particular consideration recited, not- 
 withstanding that the release concludes with general words, yet 
 the law, in order to prevent surprise, will construe it to relate to 
 the particular matter recited, which was under the contemplation 
 of the parties, and intended to be released; " per Lord Hard- 
 
 wicke, C, Ramsden v. Hylton, 2 Ves. Sen. 310. 
 [ * 138 ] * " If there be introductory matter, that will qualify 
 
 164:
 
 CONCrKRENCE TO CURE TITLE. * 139 
 
 the general words of the release; *' ^jer Best, J., Lcuiqiou v. Corke., 
 
 5 B. & Aid. Gil; S. C. ID. & By. 211. 
 
 '• The general words of a release are limited always to that 
 thine or those things which were specially iu the contemplation 
 of the parties at the time when the release was given;" per Lord 
 Westbury, L. <& S. W. Ry. Co. v. Blackmore, L. E. 4 H. L. 628. 
 And see Dav. Free. Vol. V., pt. 2, p. 147 (3d ed.); 2 Wms. 
 S:iund. 47 (p. 141, ed. 1871), n. (/) to Foivell v. Forrest). 
 
 Examples. — Release. — Operatice part restricted by recitals — 
 General words of release restricted by recitals; Knight v. Cole, 
 3 Lev. 273: S. C. 1 Show, K. B. 150: S. C. Carth. 118; Anon. 2 
 Roll. Ab. 409; Payler v. Homersham, 4 M. & S. 423; Simons v. 
 Johnson, 3 B. & Ad. 175; Lindo v. Lindo, 1 Bea. 496: Anon. 31 
 Bea. 310; T/wrpe v. Thorpe, 1 Lord Ray. 235, 662. 
 
 In the following cases the general words in the release were 
 limited to the matters which the })arties had in contemplation, 
 though thev were not mentioned in the recitals; Hennv. Hanson, 
 1 Sid. 141;' Stokes v. Stokes, 1 Lev. 272; S. C. 2 Keb. 530; S. C. 
 
 • sub nom. Nokes \. — — , 1 Vent, do; Morris v. Wilford, 2 Lev. 
 214 (v^here the marginal note appears to be incorrect'; S. C. 3 
 Keb. 814; 2 Show. 47; Fareicell v. Coker, 2 Ja. & ^V. 192; Major 
 V. Salisbury, 2 D. & L. 763; S. C. 14 L. .J. Q. B. 118; Solly v. 
 Forbes, 4 Moo. 448; Lrjall v. Edwards, 6 H. & N. 337; London 
 
 6 South Western Ry. Co. v. Blackmore, L. R. 4 E. & I. App. 610; 
 Turner v. Turner, 14 Ch. D. 829. 
 
 Concurrence in conveyance to obviate objections to the title — It 
 
 • appears that if, for the purpose of obviating objections to a title, 
 a person joins in the conveyance, which recites specified objec- 
 tions, he is not bound, except as to the interest appearing by the 
 objections to be vested in him; but that, if the recital is generally 
 that there are objections to the title, without stating what they 
 are, it must be taken that he has inquired into the nature of such 
 objections, and he cannot afterwards raise any question 
 
 * as to the extent of his information, so that every inter- [ * 139 ] 
 est that be has isl)ound; Lord Braybroke v. Lnskip. S 
 Ves. 417; S. C. Tud. Lead. Cas. R. P. (3rd ed.), 986; and see 2 
 Mer. 355. 
 
 Misrecitals. 
 
 Rule 38. — A misrecital will not vitiate the deed, if it be suffi- 
 ciently clear what is intended.*'' 
 
 Examples. — A misrecital of a lease in a gi-ant of the reversion 
 does not invalidate the grant; Withes v. Cafison, Hob. 128. 
 
 *''■ Recitals in a sluTifTs deed, the form of whioh is r)ot resulatod by law, 
 if merely surplusage, do not affcet its validity. Il:ir]i( r r. Iiowe, 55 Cal. i:'.'2. 
 
 IG5
 
 * 140 MISRECITALS. 
 
 Grant of a manor held good, though in reciting a fine which 
 formed part of the title, the names of the plaintiffs and defor- 
 ciants were transposed, " for there is sufiicient certainty of the 
 thing granted, and of the intention of the parties to grant it," 
 the rest of the description of the fine being correct, Moodij v. 
 Leicen, Cro. El. 127; S. C. more fully reported sub nom. Leicen 
 and Mody's Case, 3 Leon. 135. 
 
 In grant of reversionary lease. — If, on the g^ant of a reversion- 
 ary lease, an existing lease to A. is recited, and the date is incor- 
 rectly stated, it aopears that, if the habendum is made from and 
 after " the said lease," or " the expiration, surrender, or forfeiture 
 of the said lease," the term commences immediately; but, if the 
 habendum is " fi-om and after the lease to A." or "after A.'s in- 
 terest determined," tbe term commences on the expiration of A.'s 
 lease; see Co. Litt. 46 &., note 10; The Bishop of Bath's Case, 6 
 Rep. 36 (5); Mount v. Hodgkin, Dy. 116 a; S. C. 1 And. 3; Holt 
 V. Roper, Bendl. 84; Foots \. Berkly, 1 Lev. 234; and see Piatt on 
 Leases, vol. 2, pp. 63, 69, and cases there cited; Shep. Touch. 77. 
 The reason apparently is, that in the former case the term is made 
 \,o commence on the determination of a term which does not exist, 
 in the latter case on the determination of a term which, though 
 not described by the deed, can be ascertained by extrinsic evidence 
 admissible under Rule 11, ante, p. 47. 
 
 [*140] *A misrecital may influence the construction. 
 
 Where the words of a recovery deed were in themselves suffi- 
 cient to have passed an advowson appendant to a manor, yet, as it 
 appeared from an erroneous recital that the parties believed it not 
 to be appendant, it was held not to pass; Moseley\. Motteux, 10 
 M. &AV. 533. A deed containing a misrecital of a prior instrument 
 cannot be construed by reading that instrument : Re Carier's 
 Trusts, Jr. R. 3 Eq. 495. As to misrecitals see Evans v. Jones, 
 Kay, at pp. 37, 38. 
 
 Estoppel by recital (a). 
 
 In connection with the subject of misrecital, it should be ob- 
 perved that, contrary to the old doctrine, Co. Litt. 352 b (see 1 
 Dav. Prec, p. 61, 4th ed.), it is settled law that a recital may 
 operate by way of estoppel f (see 2 Sm. L. C. (8th ed.), 872 et 
 seq., and the authorities collected in Boicman v. Taylor, 2 Ad. & 
 E. 278; Bowman v. Rosfron, 2 Ad. & E. 295; Hill v. Manchester 
 Waterworks, 2 B. & Ad. 544; Lainson v. Tremere, 1 Ad. & E. 792; 
 
 (a) Estoppel explained: Be Strinf/cr-Shniv v. Jones-Ford, G Ch. D. 1. 
 
 ^^ Recitals iu deeds bind the parties tliereto, and also parties claiming 
 under sncli deeds. Fiske r. Flores. 43 Tex. 340; Pringle v. Dunn, 37 Wis. 
 449; Mosle i'. Kuhlman, 40 Iowa, 10a. 
 
 166
 
 ESTOPPEL. ''^ 141 
 
 S. C. 3 Nov. ct M. 603), subject to the following qualifications 
 and remarks: 
 
 ( 1. ) Recital miifit be jwecise. — The recital must be " precise and 
 unaajl)iguous;" per Lord Cairns. C, Heath v. Crealock, L. R. ]0 
 Cb. 30; there must be a distinct averment of the grantor's title;" 
 2}er AVood, V.-C, Crofts v. Middletoiu'l K. & J. 194 It must be 
 "a distinct recital of a particular fact;" (per Parke. B., Carpenter 
 V. Butter, 8 M. & W. 212), and not general in its terms, for "it 
 is a rule that an estoppel should be certain to every intent;" per 
 Lord Tenterden, C. J., Rigid v. Bucknetl, 2 B. & Ad. 281. See 
 also General Fina)ice, d'C, Co. v. Liberator Society, 10 Ch. D. 15. 
 
 Not general. — "A general recital will not operate as an estoppel, 
 but the recital of a particular fact will have that effect;" per Lord 
 Lyndhnr.st, C, Bensley v. Biirdon, 8 L. J. Ch. 85; on app. from 2 
 Sim. & S. 519. See Co. Litt. 352 b; 1 Dav. Conv., p. 61, 4th ed.; 
 Sugd. V. & P. (14th ed.), 739 n.\ Dart V. & P. (5tb ed.), 810— 
 811; 2 Sm. L. C. (8th ed. ) 874; Salter v. Kidley, 1 Show. K. B. 
 58; Right v. Bucknetl, 2 B. & Ad. 278; and an American work, 
 Bigelow on Estoppel, ch. X., p. 266. 
 
 (2.) Must t)e of material fact. — The recital must be [ * 141 ] 
 of a material fact; see per Parke, B., Carpenter v. Bul- 
 ler, 8 M. & W. at 2 i3; Boivnian v. Taylor, 4 Nev. & M. 267, note 
 (e), citing Anon., 2 Leon. 11; Co. Litt. 352, 4th rule. 
 
 (3.) Estoppel only in action on the deed. — "An estoppel ia 
 always in. some action or proceeding based on the deed in which 
 the fact in question is recited. In a collateral action tliere can 
 be no estoppel;" per Wood, V.-C. Carter v. Carter, 3 K. & J. 645: 
 And see 2 Sm. L. C. (8th ed.) 876; Frazer v. Pendlebury, 31 L. 
 J. C. P. 1; S. C. 10 W. R. 104; E.v j^arfe Morgan, 2 Ch. D. 72; 
 Carpenter v. Butler, 8 M. & W. 209; S. E. Ry Co. v. Warton, 6 H. 
 & N. at p. 527 (a). But consider Billson v. Crofts, L. R. 15 Eq. 
 314, where A., being entitled to a life interest determinable on 
 insolvency, execiited a composition deed which recited that he was 
 then insolvent; this was held to estop him as j)laintiff in a suit for 
 a declaration that he had not forfeited his life interest by execut 
 ing the dood. 
 
 (4.) Mistake prevents estojrpel. — In equity a mistake of fact 
 may be proved so as to prevent estojipel by recital ; Brooke v. Ilay- 
 mes, L. R. 6 Eq. 25; SchohfUtd v. Lockwood, 33 L. J. Ch. 10(5; 
 Empson's Case, L. R. 9 VA^^. 597. 
 
 (5.) Estoppel, how limit ed as to parties. — It is a question of 
 construction on the whole deed whether the language of a recital 
 is to be taken as that of all parties or of some or one of them onlv, 
 ami the estoppel is limited accordingly. "When a recital is in- 
 tenrled to be a statement which all the parties to the deed liavo 
 mutually agreed to admit as true, it is an estoppel upon all. Bu^, 
 
 (a) imUoitone v. Cootcc, G El. ct HI. 'Jix;. 
 
 107
 
 * 143 ESTOPPEL. 
 
 when it is intendad to be the statement of one party only, the 
 estoppel is coniiued to that party, and the intention is to be 
 gathered from construing the instrument. All the cases were 
 brought forward and considered in Young v. Eaincock (7 C. B. 
 310), and we have no doubt that the result of them is as above 
 stated;" per Pattesou, J. Stroughill v. Buck, 14 Q. B. 787; S. C. 
 19 L. J. Q. B. 209. The real intention and object of the admis- 
 sions must be looked to; S. E. By. Co. v. Wharton, 6 H. 
 f * 142 ] & N. 520; Morton v. * Woods, L. R. 3 Q. B. 658; 4 Q. B. 
 293; 38 L. J. Q. B. 81. 
 
 (6.) Estoppel, li'hen negatived by deed itself. — Generally thei-e 
 is no estoppel if the allegation sought to be set up by estoppel is 
 negatived od the face of the instrument itself. See Co. Litt. 352b. 
 (8th rule), and Doe d. Lumley v. Scarboi-ough, 4 Nev. & M. 724; 
 S. C. 3 Ad. & E. 2; Right v. Bucknell, 2 B. & Ad. 281, "Nor shall 
 a man be estopped where the truth appears by the same instru- 
 ment," (p^r Lord Tenterden, C. J.). And so 1 Dav. Conv. p. 61 
 (4th ed. ). But this doctrine does not apply to cases in which, as 
 in Morton v. Woods, L. R. 3 Q. B. 658; 4 Q.^B. 293, the existence 
 of the relation of landlord and tenant is in question. See at p. 
 303, per Kelly, C. B., "If any of the decisions or dicta were to 
 lead to the conclusion that where the truth appears there can be 
 no estoppel, that doctrine must be taken to be over-ruled by the 
 case of Jolly v. Arbuthnot (4 De G. &. J. 224)." 
 
 ( 7. ) Estoi>pel against a married iconian. — Semble, there may be 
 estoppel against a married woman, Jones v. Frost, L. R. 7 Ch. 
 773. 
 
 (8.) Recitals informer deeds. — A party to a deed of convey- 
 ance is not estopped by recitals contained in other deeds through 
 which the title so conveyed is derived; Doe d. Shelton v. Shelton, 
 4 N. & M. 857; 3 Ad. & El. 265. In that case there was a con- 
 veyance of lands to A., reciting the bankruptcy of B. The deed 
 was not executed by A. Then A. executed a settlement of the 
 lands. Lord Denmau, C. J. said: — "Is it true as a general pro- 
 position that a party so claiming adopts the statement of facts in 
 an anterior deed which goes to make up his title? "We are aware 
 of no anthoritv for such a doctrine (4 N. & M. 867; 3 Ad. & El. 
 283). 
 
 lu Melbourne Banking Corporation v. Brougham., 7 App. Cas. 
 
 307, the official assignee in insolvency of B. executed a release to 
 
 mortgagees of the equity of redemption of an estate mortgaged 
 
 by B. B. afterwards took from the assignee a conveyance of all 
 
 the estate vested in him under the insolvency, and then instituted 
 
 a suit to set aside the release on the ground of mis- 
 
 [ *143 ] representation or * mistake as to facts therein recited. 
 
 It was held that the onus was upon B., Avho was prima 
 
 facie bound by the admissions under seal of his vendor, to prove 
 
 the falsehood of the representations. 
 
 168
 
 RECITAL OPERATING AS COVJfiyANT. * 144 
 
 On the other hand, in Doe d. Gaisford v. Stone, 3 C. B. lUO, a 
 purchaser was hekl bound by a recital that estopped his vendor. 
 
 {[).) Doctrine not to be extended. — Jesse), M. K., expressed a 
 disinclination to extend the doctrine of estoppel by deed; Gen. 
 Finance, tf-c, Co. v. Liberator, dec, Socy., 10 Ch. D. 15. 
 
 Person not execiding deed. — A paity to a deed can obtain the 
 benefit of an estoppel, though no did not execute it; Hungerford 
 V. Becker, 5 I. C. R. 417. 
 
 Recital may create covenant. — A recital in a deed may operate 
 as H covenant where it appears to have been the intention of the 
 parties that it should so operate; Mollis v. Can; Freem. Ch. 3, 
 S. C. 2 Mod. 86; 3 Swanst. 638; see Young v. Smith, 35 Beav. 
 at p. 89; Lay v. Mottram, 19 C. B. N. S. 479; Monypenny v. 
 Monypenny, 4 K. & J. 174; 3 De G. & J. 572; 9 H. L. C. 114; 
 Iven V. Elices, 3 Drew. 25. iiee post, Chapter on Covenants. See 
 post, pp. 415, 418. 
 
 An action may be maintained upon such implied covenant; 
 Samjjson v. Easterby, 9 B. & C. 505; S. C. in error, 6Bing. 644; 
 1 C. & G. 105: Saltoun v. Houston, 1 Bing. 43S; Farrall v. Hil 
 ditch, 5 C. B. N. S. 840. 
 
 But not where covenant in icitnessing part. — But " the recital 
 of an agreement does not create a covenant where there is an ex- 
 press covenant to be found in the witnessing part relating to the 
 same subject matter; " per Jessel, M. K, Daives v. Tredu-ell, 18 
 Ch. D. 359. 
 
 "The admission of a debt, as a general rule, by an instrument 
 under seal would amount to a covenant to pay it, and the ques- 
 tion was whether it had that effect in this deed. If it was a 
 general and unqualified admission, that was the effect 
 of it; but if the object was * to acknowledge that debt [ * 144] 
 merely as the ground of giving security of a particular 
 character for it, then it was not the creation of a personal liability 
 to pay, but was only introduced with the object of giving se- 
 curity;" per Malius, V.-C. Jackson v. N. E. By. Co., 7 Ch. D. 
 583, discussing Courtney v. Taylor, 7 Sc. N. R. 765, 6 Man. & G. 
 851, and other authorities. See also Iven v. Elices, 3 Drew. 25; 
 24 L. J. Ch. 249; 1 Jur. N. S. 6. 
 
 Miscellaneous. 
 
 Power exercised by recital. — A recital in an instrument cap- 
 able of operating as the execution of a power, Pouhonv. WfUlng- 
 ton, 2 P. W. 533; Wilson v. Piggott, 2 Ves. jun. 351, see p. 355; 
 even if the recital is only of a past transaction which by itself 
 
 1G9
 
 * 144 RECITALS. 
 
 would not have been a sufficient execution of the power, Lees v. 
 Lees, I. R. 5 Eq. 549, may amount to an execution of the power. 
 But see Miller v. Gidson.,'l'i L. R. (Ir.) 408, at p. 427. 
 
 Other effects of recital. — A recital may amount to a conveyance 
 within the Stamp Acts, see Phillips v. Gibbons, 5 W. R. h'll; 
 Horsfall v. Hay, 2 Ex. 778. 
 
 Recital of a former deed, proves onlv so much of it as is stated 
 in the recital; Gillett v. Abbott, 3 N. & P. 24; 1 W. W. & H. 89; 
 7 A. & E. 783, 2 Jur. 300. 
 
 Voluntary settlement of (inter al.) a sum of £2,000 which was 
 therein recited to have been paid to the trustee. The £2,000 
 had not in fact been paid, but the trustees executed the settle- 
 ment on the faith of a promise by the settlor to pay it. Held, 
 that neither the trustee of the settlement nor a volunteer under 
 it could enforce payment; Marler v. Tommas, L. R. 17 Eq. 8. 
 
 As to the effect of an ambiguous recital in connection with the 
 doctrine of constructive notice, see Dart (5th ed. ) 864, 876; Re 
 Harman and Uxbridge, &c., Ry. Co., 24 Ch. D. 720; and as to a 
 recital relieving a purchaser from ascertaining payment of debts 
 and legacies charged, see Starry v. Walsh, 18 Beav. 559. 
 
 170
 
 PROOF OF UNEXPRESSED CONSIDERATION. * 146 
 
 * CHAPTER XL [*145] 
 
 CONSIDEKATION. RECEIPT. 
 
 Proof of consideration not stated in the deed: Dealings irith 
 wife^s land: Voluntary conveyance of leaseholds: Consid- 
 eration stated in deed to be jiciid by A. really paid by B. : 
 Consideration necessary for raising a use : Covenants to 
 stand seised: Effect of receipt in body of deed, and of en- 
 dorsed receipt. 
 
 Rule 39. — Proof of consideration not expressed in deed. — If 
 the cousideratioQ is stated inaccurately, or is not stated at all, or 
 if part only of the consideration is stated, evidence is admissible 
 to prove the true consideration, so as it be not inconsistent with 
 the consideration expressed in the deed. 
 
 " An averment shall not be allowed and taken against a deed, 
 that there was no consideration given, when there is an express 
 consideration upon the deed, yet when the deed expresseth no 
 consideration or saith ' for divers good considerations,' or the 
 like, there an averment of a good consideration given shall be 
 received, for this is an averment that may stand with the deed; " 
 Shep. Touch. 510, and see 1 Dav. Prec. (4th ed.) 0;i 
 
 "A use cannot be raised by any covenant or proviso or by bar- 
 gain and sale, upon a general consideration; and therefore if a 
 man by deed indented, and inrolled according to the statute, for 
 divers good considerations, bargains and sells his lands to another 
 and his heirs, nihil operatur inde, for no use shall be raised ujion 
 such general consideration, for it doth not appear to the 
 court that the * bargainor hath Quid pro quo, and tlie [*lir) ] 
 court ought to judge whether the consideration be suffi- 
 cient or not; and that cannot be when it is alleged in such gen- 
 erality. But note, reader, the bargainee in such a case may aver 
 that money or other valnablo consideration was paid or given; 
 and if the truth l)e such, the bargain and sale sliall Ix^good. So, 
 if I by deed covenant with J. S., for div(>rs gocjd considerations, 
 that I and my heirs will stand seised to the use of him and his 
 
 171
 
 ' 147 PROOF OF VALUABLE CONSIDERATION. 
 
 heirs, no use, without special averment, shall be raised by it; but 
 if J. S. be of my blood, and in truth the covenant vpas made for 
 the advancement of his blood, he may aver that the covenant was 
 in consideration thereof;" Mildmay''s Case, 1 Rep. 17Ga; see also 
 Bedell's Case, 7 Rep. 40a. 
 
 " The rule is that where there is one consideration stated in 
 the deed, you may prove any other consideration, which existed, 
 not in contradiction to the instrument; " pe?' Knight-Bruce, V.-C, 
 Clifford v. Turrell, 1 Y. & C. C. C. 149. 
 
 " The settled rule of law is that you may go out of the deed to 
 prove a consideration that stands well with that stated on the 
 face of the deed, but you cannot be allowed to prove a cousider- 
 ation inconsistent with it; "per Lord Lyndhurst, C, Clifford v. 
 Turrill, 9 Jiir. G33 (where the authorities are discussed). 
 
 '" That considerations, not recited in a deed, may be resorted 
 to, to support it, is well settled provided they be not inconsistent 
 with what appears upon the face of the deed;" per Plunket, C, 
 Nixon V. Handlton, 2 Dr. & Wal. 385. 
 
 " There is no doubt that evidence is admissible to show that 
 there was consideration for the deed not appearing upon the 
 face of it; " per Turner, L. J., Townend v. Toker, b. R. 1 Ch, 
 459. 
 
 It used to be doubted whether, if one consideration appeared 
 on the face of the deed without the words " and divers other con- 
 siderations," or the like, additional or other consideration could 
 be proved. Lord Hardwicke says (Peacock v. Monk, 1 
 [ * 147 ] Ves. Sen. 128), ''Where *any consideration is men- 
 tioned, as of love and aflPection 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 negative to 
 any other." But this doctrine must now be considered as over- 
 ruled. 
 
 Examples. — Valuable consideration not expressed may he 
 proved. — Evidence was admitted to prove valuable consideration 
 where a nominal consideration alone was expressed; Lei f child'' s 
 Case, L. R. 1 Eq. 231; and where a nominal consideration "and 
 divers other good -causes and considerations" were expressed; 
 Cliapman v. Emery, 1 Cowp. 278. 
 
 Where the consideration stated in the deed was not valuable, 
 or even good, evidence was admitted to prove valuable considera- 
 tion; Styles Vo Attorney- General, 2 Atk 152. 
 
 Where no consideration was stated, evidence was admitted to 
 prove, in Ferrars v. Cherry, 2 Yern. 3S3, that a settlement made 
 after marriage was really made in pursuance of marriage articles, 
 though this Avas not stated in the settlement; in Peacocfc v. Monk, 
 1 Ves, Sen. 127, services done by the donee to the donor; in 
 172
 
 NATrR.M. hOXK — POST MPTIAL SETTLFMENT. *149 
 
 Llanelhj Railwcuj Compauij v. Loudon and Xorth Wcf^teri) Rail- 
 ivaij Compaiii/, L. E. 8 Cli. 942, a pecauiary cousideratiou. 
 
 Where the deed was stated to be for valuable consideration, 
 proof of additional valuable consideration was admitted in 1'//- 
 lars V. Beamont, Ben. & Dal. 89; S. C. Dy. 140 (PL 68) cited at 
 length, 1 Kep. 17(3a, where evidence was admitted to prove that 
 a deed apparently made for pecuniary consideration was also 
 made in consideration of marriage; in Vernon^ s Case, 4 Rep. 1, 
 where evidence was admitted to prove that a conve.yance to a 
 wife on express condition to perform her husband's will was also 
 for her jointure; in He.vv. Scamnionden, 3 T. 11. 474, and Clifford 
 v. Turrell, 1 Y. & C. C. C. 138; S. C. on app., 9 Jnr. 
 038, evidence was * admitted to prove a pecuniary con- [ * 148 ] 
 sideration larger than that stated in the deed. 
 
 Where the consideration stated in the deed was £150 paid and 
 an acceptance for £300, held that the vendor might show that he 
 had stipulated for a lien for the £300, Frail v. Ellis, 16Bea. 350. 
 
 Where the consideration was stated to be natural love and 
 affection, evidence was admitted to prove in Gale v. Williamson, 
 8 M. & W. 405, and Harman v. Richards, 10 Ha. 81, a simul- 
 taneous deed forming part of the same transaction; and in Tan- 
 ner V. Byne, 1 Sim. 100, the consideration of marriage. See also 
 Leahy v. Dancer, 1 Moll. 313. 
 
 Where the consideration was stated to be natural love and 
 affection " and divers other good causes and considerations," evi- 
 dence was admitted to prove "in Bayspoole v. Collins, L. R. G Ch. 
 228, pecuniary consideration; in Poff v. Todhunter, 2 Coll. 76, a 
 state of things amounting to valuable consideration; in Thomp- 
 son V. Webster, 4 Drew. 628; S. C. 4 De G. & J. 600, in Doni. 
 Pro., 7 Jur. N. S. 531, a family arrangement, which amounted to 
 valuable consideration. 
 
 Where valuable consideration is expressed, natural loi-e, d-c, 
 cannot be proved. — Where a deed is expressed to be made for 
 pecuniary consideration, evidence of natural love and affection 
 would apparently not be admissible, for if this were the case, no 
 deed made between relations could ever be upset on the ground oi 
 inadequacy of consideration, Clarkson v. Hanicay, 2 P. Wms. 203. 
 
 In Filmer v. Golt, 4 Br. P. C. 230, evidence was admitted to 
 prove that the consideration of natural love, &c., stated in the 
 deed did not exist, notwithstanding that the j)arties were rela- 
 tions. 
 
 I^ost nuptial settlement. — In connection with the8ubj<H't it may 
 be observed that a post-nuptial settlement of the wife's land, 
 wherel)y the interests of the husband and wife are modified, was 
 not, prior to the Married Woman's Property Act, 1882, voluntary; 
 Heiuison v. Negus, 16 Beav. 594; Atkinson, v. Smith, 3 De G. & 
 J. 186; Teasdale v. Braithwaite, 4 Ch. D. 85; S. C. 5 
 Ch. D. 680; Foster v. Lister, OCh. * D. 87 (in which case [ * 149 ] 
 
 173
 
 * 149 CONSIDERATION IMPLIED. 
 
 Goodright v. Moses, 2 W. Bl. 1019, Ciirrie v. Nind, 1 My. & Cr. 17. 
 Butterjield v. Heath, 15 Beav. 408, were disapproved of). 
 
 Conveyances of leaseholds or gifts for life or entail of free- 
 holds. — It may also be observed that a conveyance in form volun- 
 tary of leaseholds is necessarily a conveyance for value within 27 
 Eliz. c. 4, owing to the liability on the part of the assignee to 
 pay the rent and perform the covenants of the lease; Price v. 
 JenJdns, 5 Ch. D. 019; Ex parte Doble, 26 W. K 407: but is not 
 within the exception in the Bankruptcy Act, 18h9. s. 91, or the 
 Act of 1883, s. 47; Ex parte Hilhnan. 10 Ch. D. 024; and is cot 
 a conveyance for value within 13 Eliz. c. 5; Re Ridley, 22 Ch. 
 D. 74. 
 
 Although if a man make a conveyance in fee simple without 
 consideration there is a resulting use to him, still if ho make a 
 conveyance without stating any consideration for life or in tail 
 no use results to him during the estate for life or in tail, as the 
 tenancy created is a sufficient consideration; Shep. Touch, 522, 
 Yin. Uses, 188. Seepos^, 286, 299. 
 
 Rule 40. — Proof admissible to show by ichom consideration 
 icas paid. — A mere statement in the deed that the consideration 
 was paid by A. does not exclude evidence that it was paid by B. ; 
 Rex V. Llangunnor, 2 B. & Ad. 010. 
 
 Rule 41. — Consideration necessary to raise use. — A use cannot 
 be raised without the consideration of money, money's worth, 
 blood, or marriage." 
 
 Examples. — Thus a use was not raised by the consideration 
 of "being ancient acquaintances or chamber-fellows;" TT'ard v. 
 Tuddington, 2 Rol. Ab. 783, PI. 5; "having been schoolfellows 
 together;" 2 Rol. Ab. 783, PI 0; change of name, Garnish y. 
 Wentworth, Cart. 137; Sir Christopher liatton^s Case, Vin. Ab. 
 Uses, H. pi. 8. 
 
 ** A deed of bargain and sale in which no consideration is expressed, is 
 void unless an actual consideration can be proved. Lambert ?■. Smith, 9 
 Oregon. 185. Any valuable consideration, however small, is sufficient to 
 support a conveyance of land, and the acknowledgment in the deed is con- 
 clusive of the fact so far as to effect the conveyance. Ochiltree r. McClurg, 
 7 W. Va. 232. A conveyance, the consideration of which is marriage, is not 
 a mere voluntary con ve^'ance; marriage being a valuable consideration, such 
 conveyance will not be presumed to be fraudulent, either as to existing or 
 subsequent purchasers. Bi)nser r. Miller, 5 Oregon, 110. The acknowledg- 
 ment of consideration in a deed cannot be inquired into by parol for the pur- 
 pose of rendering the deed a nullity. Richardson v. Clow, 8 111. A])p. 91. 
 A promise by a husband to his wife, on her death bed. that their son should 
 have certain property, is not a valuable con.sideration for a conveyance by 
 the father to the son. Peck v. Peck (Cal.), 19 Pacific Eep. 227. 
 
 174
 
 CONSIDERATION NECESSARY TO RAISE USE. * 151 
 
 In a covenant to stand seised, uses limited to astranfrer, 
 ■whether in possession, Lord Page fs Case, 1 And. * '203, [ ^^ 150 ] 
 PI. cclxx. (see a case put by Rede, J., 21, H. 7, 19), or 
 in remainder, Wiseman''s Case, 2 Rep. 15a, even if the stranger 
 be a trustee to preserve, Whaleij v. Taiikard, 2 Lev. 52, or a 
 bastard, Co. Lit. r23a; Gerrarde v. Worseley, Dy. 374a, JS. C. 1 
 And. 75, are void, because he is not within the consideration. 
 
 A power which takes effect as the declaration of a use is void 
 if contained in a covenant to stand seised because the consideia- 
 tion of blood, &c., does not extend to the persons in whose favour 
 the power is exercised. Thus a general power of appointment 
 in a covenant to stand, seised was held bad in Goodtitle and Pet- 
 toe, Fitzgib. 299; S. C. 2 Str. 934; Waruick v. Gerrard, 2 Vern. 
 
 7, where it was held that the power was bad in equity as well as 
 at law. 
 
 A general power to grant leases continued in a covenant to 
 stand seised was held bad in M/ldmaifs Case, 1 Rep. 175a; Cross 
 
 V. Faustenditch, Cro. Jack. 180; Chvte v. , 1 Lev. 30; S. 
 
 C. sub nom. Lady Darres v. Hazel, 1 Keb. 34; I-'rince v. Green, 
 cited 1 Ca. Ch. 101; Baines v. Belson, T. Ray. 247; but query, 
 what would be the effect of a power to grant leases or to inake a 
 jointure in favour of a person named in the deed vrho was within 
 the consideration of blood? See Sugd. Powers (8th ed. ) 139; 
 Goodtitle andPeftoe, Fitzgib. 299; S. C. 2 Str. 934. 
 
 A general power of revocation can be reserved in a covenant to 
 stand seised; Co. Lit. 237a; Shep. Touch. 525. 
 
 It is now settled, contrary to the earlier opinion, Smith v. 
 Risley, Cro. Car. 529, that a covenant with strangers to stand 
 seised to the use of persons within the consideration is good; 
 Thome v. Thome, 1 Vern. 141 ; see the pleadings at length, 2 M. 
 & W. 512, note. 
 
 Uses can be raised by covnnant in favour of the husband or 
 wife, or the husband or wife hereafter to be taken, of a relation; 
 2 Roll. Ab. 783 pi. (1), 784 pi. 2, 3, 4. 
 
 Rule 42. — Receipt. — The receipt in the body of the 
 deed was * not before 1882 conclusive in equity, but [* 151 ] 
 was before the Supreme Court of Judicature Act, 1873, 
 came into operation (^. e., the first November, 1875), conclusive 
 at law, that the purchase-money was paid. But the receipt in 
 the body of or endorsed on a deed made since 1881 is conclusive 
 in favour of a subsequent purchaser without notice: see the Con- 
 veyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41, 
 
 8. 55). 
 
 Examples. — At laiu. — In Harding v. Ambler, 3 M. &, W. 279, 
 
 175
 
 * 153 RECEIPT. 
 
 where by a miscalcnlatioa less than the whole pnrchase-mon«^-y 
 was paid, but the receipt was for the whole; in Rowntree v. Jacob, 
 
 2 Taunt. 141, where the circnmstances were full of suspiciou; 
 and in Baker v. Dewey, 1 B. & C. 704, the receipt was held to estop 
 the vendor at law from denyiag that the purchase -money had 
 been paid. 
 
 In equity. — On the other hand, in Coppin v. Coppin, 2 P. W. 
 291, Hawkins v. Gardiner, 2 Sin. & G. 441, Winter \. Ld. Anson, 
 
 3 Rass. 488, and Wilson \. Keating, 21 Beav. 121, the vendor was 
 alicwed to prove in equity that the purchase-money had not been 
 paid. See per Amphlett, B., Morgan's Pat. Anchor Co. v. Mo?'- 
 gaw, 35 L. T. N. S. 811. 
 
 Purchase-money returned. — Even at law evidence is admissible 
 that the purchase-monev has been returned; Baker v. Dewey, 1 
 B. & C. 704. 
 
 The receipt may be qualified by a recital. 
 
 In Lampon v. Corke, 5 B. & Aid. 606 (S. C. sub nom. Lam- 
 bourne \. Cork, 1 D. &E. 211), the recital being of an agreement 
 to pay, and not of an actual payment, and the consideration be- 
 
 ino- " the said sum of £40 being now so paid to the sd as 
 
 hereinbefore is mentioned," and the receipt being "the payment of 
 which sd several sums of money they the said do hereby ad- 
 mit," it was held tliat the receipt either had reference to some 
 nominal considerations mentioned in the deed, or that it was 
 qualified by the recital so as not to estop ths vendor 
 [ * 152 ] from * denying that it had been paid. See this ease 
 discussed and followed (by a majority of the Court) in 
 Bottrell v. Summers, 2 Y. & J. 407. 
 
 Evidence may be given even at law to show some matter hap- 
 pening after execution which prevented the payment; as in 
 Deverell v. Whitmarsh, 5 Jur. 963, where the consideration was 
 paid by cheque, and the deed contained the usual receipt in the 
 body of the deed and on the back. On the cheque being dishon- 
 oured, it was argued that the receipt was conclusive to show that 
 the money was actually paid; but Tindal, C. J., said, " Not at all. 
 The parties may show what occurred at the time. Suppose the 
 man put his hand on the table and took the money back? " and 
 it was held that evidence of the dishonour of the cheque might 
 be given. 
 
 Endorsed Receipt. 
 
 In Kennedy v. Green, 3 Myl & K. 099, the unusual position of 
 
 an endorsed receipt was considered to give notice that a fraud 
 
 bad been committed; in Greeuslade v. Dai^e, 20 Beav. 284, it was 
 
 held (in the then state of the law now altered by the conveyanc- 
 
 176
 
 RECEIPT. * 152 
 
 ing and Law of Property Act, 1881, s. 55), that though the ab- 
 sence of the endorsed receipt from a purchase deed put the pur- 
 chaser on inquiry as to whether the purchase-money had been 
 paid, it did not give constructive notice of aoy other irregulari- 
 ties in the purchase. See also Bavnhard v. Greenshields, 9 Moo. 
 P. C. C. 18. See also Dart. V. & P., 5th ed. 656, 730; and as to 
 Building Societies, Harvey v. Municipal, cC'C, Building Society, 
 26 Ch. D. 273; Robinsonw. Trevor, 12 Q. B. D. 423; Sangster v. 
 Cochrane, 28 Ch. D. 298; Carlisle Banking Co. v. Thompson, lb. 
 398. y 
 
 12 INTEEPEETATION OF DEEDS. 177
 
 154 GENERAL NAMES — SPECIAL DESCRIPTION. 
 
 [ '^ 153 ] * CHAPTER XII. 
 
 PARCELS. 
 
 General and special descriptio7LS explained: "-Non accipi dehent 
 verba in demonstrationem falsam quoe competunt in limita- 
 tionem veram :'''' ^^Falsa demonstratio nonnocet:^'' '^Ejusdem 
 generis /" Leaseholds or copyholds passing by assurance of free- 
 holds : Soil of public road, of privcde road, of river : Party 
 %vall : Creation of easement and profit d prendre. 
 
 General name.— There, is much difficulty in understanding the 
 rules for the interpretation of parcels. The following remarks 
 may, perhaps, render them more intelligible. 
 
 A thing is always designated by (1) what is called a general 
 name (that is, a name which is equally applicable to every mem- 
 ber of a class) together with (2) some super- added description 
 to show which member of the class is intended. 
 
 "A house," " an estate," "a farm," " a wood," are all general 
 names; each of them equally tits every member of a class. 
 
 There are two modes of designating or identifying any partic- 
 ular member of a class. 
 
 First, description by general names only. — We may describe 
 it as belonging to several general names; in other words, we may 
 describe it as belonging to several classes. In this case, if only 
 one thing satisfies all the descriptions, that is the thing meant; if 
 more than one thing satisfies all the descriptions, there is a case 
 of equivocation. — See ante pp. 102, 107. 
 
 It often happens that the same thing can be described by 
 two totally different descriptions; e. g., the same lands 
 [*154] *may be described by the two descriptions following: 
 " the tithe-free lands in the parish of E.," and "the an- 
 cient woodlands inherited by A." 
 
 In each of these descriptions all the names are general, and in 
 each case if we omit any one of the general names we describe a 
 larger number of things than if we use all the names; in other 
 words, where a thing is described by several general names, the 
 descriptions are mutually restrictive. 
 
 Secondly, description by general name and special description. — 
 
 178
 
 INACCTRATE DESCRIPTION — COLLECTlVli NAME. '" 155 
 
 "We may add to tho general description either the individual name, 
 if there be one. or a special description which tits that member 
 only of the class of things designated by the general description. 
 Thus, the pieces of laud before described may be described as 
 "the woods called Highhurst," or "the woods in the occupation 
 of A." More commonly, however, we add to the general descrip- 
 tion both the individual name and special description, as " the 
 ancient woodlands in the parish of E., known as Highhurst, in 
 the occupation of A." 
 
 It will be observed that if a description, though general in form, 
 does in fact designate one thing only, the addition of any special 
 description is useless; but if, as usually happens, a general de- 
 scription points equally at more than one thing, the special de- 
 scription indicates which of these things is meant; in other words, 
 if anything exists which satisfies both the general and the special 
 description, that only is intended, /. e., the special description re- 
 stricts the general description. 
 
 Inaccurate descriptio)i. — It sometimes happens thai, while the 
 description renders it certain what is intended, as " A's house in. 
 London," where A. has only one house there, some further de- 
 scription if added which is wholly or partially inaccurate. Sup- 
 pose that A.'s house is in the occupation of B., and we describe 
 it as " A.'s house in London, in the occupation of C." Now if A. 
 has no house in London in the occupation of C, we see that the 
 words "in the occupation of C." are inaccurate, and we should 
 reject them. See Rule 29, p. 115; and pos^, p. 167. 
 
 In a simple case like the one just mentioned there is 
 little difficulty; but cases occur in which part of the *de- [ * 155 ] 
 scription designates all the parcels in such a manner that 
 if that part stood alone it would be accurate, but the other words 
 of the description apply to a part only of the parcels, so that it 
 remains doubtful whether these latter words are intended to re- 
 strict the other part of the description, or are to be rejected as 
 inaccurate. Thus, if A. has estates known as " the T. estates," 
 in the adjoining counties of Hants and Wilts, the description 
 "A.'s T. estates in the county of Hants," would clearly be in- 
 tended to pass only that part of the property which is situated 
 in Hants; in other words, the phrase "in the county of Hants," 
 would be restrictive. But if A. had a house called S., standing 
 in the two counties, the description " A.'s house called S., in the 
 county of Hants," would clearly be intended to pass the whole 
 house called S. ; in other words, the phrase "in the county of 
 Hants" would not be restrictive; the only reason for introducing 
 it is to help to point out which house is intended. It would be 
 more difficult to determine what is meant by " Brosley Farm, in 
 the county of Hants," if the farm were partlv in Hants and partly 
 in Wilts. 
 
 Collective name. — A collective name, or noun of multitude, is 
 
 179
 
 * 156 DESCRIPTIONS MUTUALLY RESTRICTIVE. 
 
 the name of a group of things, not necessarily of the same nature, 
 thus, ■' an estate," may include corporeal and incorporeal here- 
 ditaments of any nature; "a farm" includes a house, arable and 
 pasture lands. See Grlossary, p. 574, s. v. Farm. One superadded 
 description will generally denote the particular group intended, 
 as "A.'s estate," and a further description may either, first, show 
 that some members of the group are alone intended, as "A.'s es- 
 tate in the county of H.," where A.'s estate lifs in the counties 
 of H. and W. ; " A.'s adult issue," where " issue " is a collective 
 term; the description "A.'s" shows which of the smaller groups 
 included in the larger group " issue " is to be taken, and " adult " 
 shows that only a part of the smaller group denoted by "A.'8 
 issue;" is to be taken; or, secondly, it may be intended as a further 
 designation of the particular group as " Brosley Farm in the oc- 
 cupation of A." 
 
 Thouo^h the three following rules have often been laid 
 [ * 156 ] * down, there is so much difficulty in applying them, 
 mainly owing to the fact that words descriptive of occu- 
 pation, locality, and the like are sometimes used as general names, 
 i. e., as restrictive words, in which case they cannot be rejected, 
 and sometimes as words of special description, in which case if 
 they do not tit the thing or all the things described by the rest of 
 the description, they must be rejected, that I consider it conve 
 nient to state all the rules before I proceed to the analysis of the 
 cases.*"' ■ - r-. 
 
 Rule 43. — Where the descriptions are all general or collect- 
 
 ** Where the lines are not run and marked on the ground, and there are no 
 other circumstances equally decisive and controlling, the calls in a deed for 
 adjoinders or other fixed boundaries invariably govern the calls for courses 
 and distances, when there is a discrepancy between them; lor the reason 
 that it is easier to be mistaken in a measurement than in a boundary. 
 Brocksley v. McLaiu, 61 Pa. St. 146: Strickland r. Drangham, 88 N. C. 31 ."i; 
 Hogans r. Cariuth. 19 Fla. 84; Dwight v. Packard, 49 Mich. 614. But the 
 rule is equally well .settled that the lines actually marked on the ground, if 
 there be no fraud or mistake in running the lines, constitute the survey and 
 control the distances, even where the draft of the survey or the description 
 in the deed calls for natural or other fixed boundaries. Adams v. Alkire, 20 
 W. Va. 480; Bently v. Rickabaugh, 62 Pa. St. 281. And the rule that monu- 
 ments control courses and distances must yield to evidence of contrary in- 
 tention. Hall V. Eaton, 1 39 Mass. 217. In the case of lines actually marked 
 upon the ground, they may be controlled by proof of fraud or mistake iu 
 ruuning them. Bently v. Rickabaugh, 62 Pa. St. 281; Brolaskey v. McLain, 
 61 Pa. ^t. 146. Where no monuments are referred to in a grant, and none 
 are intended to be afterward designated as evidence of the extent of it, the 
 distance stated therein must govern the location. Negbauer v. Smith, 44 N. 
 J. L. 672. Where a deed calls for a natural object and the line gives out 
 before reaching it, the line must be extended to the natural object, and the 
 distance disregarded. Strickland v. Draugham, 88 N. C. 315. A mistake as 
 to course and distance in the calls of a deed, when the means of correcting 
 the same are furnished by more certain descriptions contained in the deed; 
 and when there is a discrepancy between course and distance and the other 
 descriptions, the former must give way. Credle v. Hays, 88 N. C. 321. 
 
 180
 
 INACCIRATE PART OF DESCRIPTION REJECTED. * 157 
 
 ive. — Where the parcels are described by several general descrip- 
 tioas or by a collective and a general description, that only is in- 
 tended which satisfies each description. 
 
 This rule may also be stated in each of the following modes: — 
 "Greneral descriptions are mutually restrictive:" ''If the parcels 
 are described as being members of more than one class, that only 
 is intended which is a member of each class." 
 
 Rule 44. — WJiere the special description fits the general. — 
 Where the parcels are described by general or collective and also 
 by special descriptions, and anything fits both descriptions, that 
 only is intended; Wrotesley v. Adams, Plovs?. 191. 
 
 These two rules are often expressed as follows: 
 '^ Non accipi debent verba in demonstrationem falsam quaecom- 
 petunt in limitationem veram." 
 
 "The rule means that if it stand doubtful upon the words 
 whether they import a false reference or demonstration, or whether 
 they be words of restraint that limit the generality of the former 
 words, the law will never intend error or falsehood. If, therefore, 
 there is some land wherein all the demonstrations are true, and 
 some wherein part are true and part false they shall be 
 intended *words of true limitation to pass only those [*ir)7] 
 lands wherein all the circumstances are true;" per Alder- 
 son, B., Morrell v. Fisher, 4 Ex. 604. 
 
 " Quando carta continet generalem clausulam, posteaque des- 
 cendit ad verba specialia, quae clausulse generalisunt consentanea, 
 interpretanda est carta secundum verba specialia. The same rule 
 almost word for word is put and agreed on both sides in 7 Ed. 3 
 10a, Margei'y Mortimer^ s Case, sc, 'Where a deed speaks by gen- 
 eral words and afterwards descends to special words, if the spe- 
 cial words agree to the general words, the deed shall be intended 
 according to the special words; as if a man grants a rent i7i 
 manerio de D. percipiend in 100 acres of land, parcel of the same 
 manor, with clause of distress in the 100 acres, the rent shall 
 issue out of the 100 acres only, and the general words shall be 
 construed according to the special words' ;" Al1ham\s Case, 8 
 Rep. 154b. 
 
 In cases falling within the rule it will generally be found that 
 there is only one special description, as '"A.'s house," "Brosley 
 Farm;" if there are several special descriptions and each of 
 them denotes the same thing, as " Brosley Farm, which is deline- 
 ated in the map annex(Ml hereto," wViere the map accurately de- 
 scribes Brosley Farm, tlie rule applies, but if they do not both 
 denote the same thing the next rule applies. 
 
 181
 
 * 159 INACCURATE PART OF DtSCRIPTION REJECTED. 
 
 Rule 45. — Falsa demonstrafio non nocet. — Where the parcels 
 are described by both general or collective and special descrip- 
 tions, and nothing exists which satisfies all the descriptions, but 
 soTDething exists which satisties some of them, and is described 
 with sufficient certainty, the others may be disregarded. 
 
 In cases falling within this rule it will generally be found 
 that there is more than one special description, though >of course 
 there may be only one special description, as in Roe d. 
 [*158] Conollij V. Vernon, 5 East, 51 (infra, * p. 163), where 
 the statement of the rent was the only special descrip- 
 tion. 
 
 The rule is sometimes stated as follows : — " If there be a de- 
 scription of the property sufficient to render certain what is in- 
 tended, the addition of a wrong name, or of an erroneous state- 
 ment as to quantity, occupancy, locality, or an erroneous enum- 
 eration of particulars, will have no effect." 
 
 " One of the rales of construction is ' falsa demonstratio non 
 nocet,' which means that if there be an adequate and sufficient 
 description with convenient certainty of what was meant to pass, 
 a subsequent erroneous addition will not vitiate it;" per Alder- 
 son, B., Morrell v. Fisher, 4 Ex. 604. 
 
 " Whenever there is in the first place a sufficient certainty and 
 demonstration, and afterwards an accumulative description, and 
 it fails in point of accuracy, it will be rejected;" Shep. Touch. 
 247. 
 
 " The rule is clearly settled, that when there is a sufficient de- 
 scription set forth of premises by giving the particular name of 
 a close, or otherwise, we may reject a false demonstration; " per 
 Parke, J., Doe d. Smith v. Galloway, 5 B. & Ad. 51. 
 
 " As soon as there is an adequate and sufficient definition, with 
 convenient certainty, of what is intended to pass by a deed, any 
 subsequent erroneous addition will not vitiate it;" per Pai'ke, B., 
 Llewellyn v. Earl of Jersey, 11 M. & W. 189; adopted per Mona- 
 han, C.J., in Dublin & Kingstown Railway Co. v. Bradford, 7 Ir. 
 C. L. Rep. 63. 
 
 " There is a diversity where a certainty is added to a thing that 
 
 is incertain [i.e., -described by a general name) and where to a 
 
 thing certain. For if I release all my right in all my lands in 
 
 Dale which I have by descent on the part of my father, and I 
 
 have lands in Dale by descent on the part of my mother, but no 
 
 lands by descent on the part of my father, there the release is 
 
 void, for if the releasee will aid himself by the release he ought 
 
 to aver that I had such lands in Dale by descent on the 
 
 [ * 159 ] part of * my father, to which the release extended, 
 
 and the same is issuable, and if he cannot aver this, 
 
 then the release is void. And so the words of the certainty — 
 
 182
 
 INACCIRATE I'ART OF DESCRIPTION REJECTED. * 100 
 
 viz., which I have by descent on the part of my father — being 
 added to the general words which were incertain, are of effect. 
 But if the release had been in Wit iff -acre in Dale, which I have 
 by descent on the part of my father, and I had it not by ilescent 
 on the part of my father, but otherwise, yet the release is good, 
 and the releasee shall not be compelled to take any averment, for 
 the thing was certainly expressed by the first words, in which 
 case the addition of another certainty is not necessary but super- 
 fluous, and therefore he shall not there take an averment upon a 
 thing which is of no effect, be the same true or false; " Wrotes- 
 ley V. Adams, Plowd. 191. 
 
 The distinction taken in the above passage is well pointed out 
 in the marginal note to Roe d. ConoUy v. Venion and Vyse, 5 
 East, 51, as follows: — ^" Where there is a grant of a particular 
 thing once sufficiently ascertained by some circumstance belong- 
 ing to it, the addition of an allegation mistaken or false respect- 
 ing it will not frustrate the grant; but where a grant is in gen- 
 eral terms, there the addition of a particular circumstance will 
 operate by way of restriction and modification of such grant." 
 And see j)er Lord Cranworth in Slin(jsby v. Grainger, 7 H. L. C. 
 283 — "The distinction is between those cases in which there has 
 been a complete description of the thing given, and a subsequent 
 misdescription as to some particular connected with it, and cases 
 in which that which is subsequently connected with the descrip- 
 tion is so connected as to form part of the description of the 
 thing given." And per Lord "VVestbury in West v. Lawday, 11 
 H. L. C. 384. See also Bacon's Law Tracts, Rule 13, cited by 
 Stuart, V.-C, in Pedley v. Dodds, L. R. 2 Eq. 819, at p. 824. 
 
 Examples of words construed as restrictive. — Examples 
 of rules 43 and 44. — Name of 2^ittce. — Grant of " all those mes- 
 suages, &c., in the occuj)ation of B., in the city of W., 
 formerly belonging to the hospital * of W." Held, [*160] 
 that lands in the occupation of B., which formerly be- 
 longed to the hospital of W., but were not within the city of W., 
 did not pass: Doddington's Case, 2 Rep. 32b; S. C. sub nom. 
 Hall v. Peart, Pop. GO. 
 
 A conveyance contained a full and accurate description of the 
 " Dromardmore" estate, containing 1085 acres, "and described in 
 the annexed map." The annexed map was proved to comprise 
 several acres of land which formed no part of Dromardmore, but 
 were part of Dromardbeg. Held, that the first description should 
 prevail, and that nothing passed by the deed which was not part 
 of Dromardmore; Roe v. Lidwell, 1 1 Ir. C. L. Rep. 320. See 
 also to the same effect, Dublin & Kingstown Raihvay Co. v. Brad- 
 ford, 1 Ir. C. L. Rep. 57. See also Griffiths v. Penson, 1 N. R. 
 330, post, p. IGl. 
 
 Occupancy. — R., tenant for years of the farm called C, con- 
 
 183
 
 *161 OCCUPANCY — FALSE ENUMERATION — MAP. 
 
 sisting of H. and other parcels, appoints A. his executor and 
 dies. A. demises all except H. to B., and H. to F., and after- 
 wards grants the residue of his term in the whole to B. and F. 
 The reversioner grants a rent issuing out of all his lands and 
 tenements commonly called C, formerly in occupation of E., and 
 now in the tenure and occupation of B. Held, that H. was not 
 charged with the rent; OgneVs Case, 4 Rep. 48b. 
 
 Demise of " all my house and two yard-lands, in B. in the pos- 
 session of G. ; " G. was in possession of all except two acres. 
 Held, that the two acres did not pass; Bartlett v. Wright, Cro. 
 El. 299. (It should be remembered that a yard-land consists of 
 a number of detached strips. ) See post, p. 567. 
 
 Demise of " all that messuage, &c., on the south side of Speen- 
 ham land, called the Old Fighting Cocks, now or late in the occu- 
 pation of J." The question being whether the demise included 
 the soil of a gateway under a portion of the messuage, leading 
 to a yard behind it, in which were some small houses not included 
 in the demise, the tenants of which had always used the gateway, 
 it was held that in the absence of evidence that the soil of the 
 gateway had been in the exclusive occupation of J., 
 [ * 161 ] it did * not pass by the demise; Dyne v. Ntifley, 14 C. 
 B. 122. Williams, J., remarked that the words "now or 
 late in the occupation of J." were essential words and not mere 
 words of demonstration. 
 
 Enumeration.—Settiement of "all that messuage or dwelling- 
 house, with the lands, &c., thereto belonging, situate, &c., and 
 now or late in the occupation of B.,his under-tenants or assigns, 
 and which said messuage, dwelling-house, and lands are also 
 known or described by the names, and contain the several quan- 
 tities by admeasurement, following, that is to say, &c." Then 
 followed a list of the names and acreages of the several closes 
 contained in the farm, with the omission of four. Held, that 
 although the whole farm, including the four closes, had been let 
 to B. at one rent, the four closes not mentioned in the settlement 
 did not pass: Griffiths v. Penson, 1 N. R. 330; S. C. 9 Jar. N. 
 S. 385. See, to the same effect. Barton v. Daives, 10 C. B. 261. 
 , Map. — In Lyle v. Richards, L. R. 1 E. &Ir. Ap. 222, a boundary 
 line of the premises was described " as a line drawn from A.'s 
 house to a boundstone, situate, &c.," and the description of the 
 parcels was followed by the words " and which said premises are 
 particularly delineated by the map on the back of this settle- 
 ment;" the house was incorrectly drawn on the map. Held,that 
 the map must be taken as part of the description, and that the 
 boundary line must be taken as drawn on the map. This case 
 will be found fully discussed in Dart V. & P. (5thed.) 965, where 
 Mr. Dart says: "Lord Westbury dissented from this view, and 
 held that as the error in the plan could not be discovered with- 
 out the aid of extrinsic evidence, there was a latent ambiguity, 
 184
 
 WORDS I1ELI> RKSTRICTIVE. * 1()3 
 
 which was matter of fact to be determined by the jury on the 
 evidence, not matter of law to be determined on the construction 
 of the deed. A plan is a part of a deed to be interpreted, like 
 every portion of the instrument, by the Judge: but, as was ob- 
 served by Lord Westbury, the question here was not one of the 
 interpretation of tlie deed itself, or even of the construe 
 tiou of the description of the parcels, but of the * infer- [ * 162 ] 
 ence to be derived from a map as to the relative posi- 
 tion of two objects, one of which was proved to bo erroneously 
 laid down. As soon as that proof was admitted, it became ob- 
 vious that the true position in nature of the thing erroneously 
 laid down, and the true relative position of the adjoining objects, 
 miist both be ascertained by external evidence. The latter seems 
 the sounder view: the construction of the plan was matter of law 
 so long only as its accuracy was unimpeached: being proved to 
 be inaccurate, it became a question of fact what parcels were 
 comprised in the lease: for it did not follow that, because the 
 boundary line was drawn from the northeast corner of the house, 
 as incorrectly represented on the plan, it would have been drawn 
 from the same point, if the true site of the house had been 
 drawn." 
 
 Incorporation of map. — As to incorporation of map in convey- 
 ance, see In Re Ohvay's Estate, 13 Ir. Ch. R. 222, at 233—234; 
 Barloiv v. Rhodes, 1 Cr. & Mee. 439. A map attached to but not 
 referred to in a conveyance cannot be used to explain it; Wyse v. 
 Leakey, Ir. R. 9 C. L.' 384. 
 
 Inventory or schedule. — Assignment by bill of sale to B. of 
 " all the household goods and furniture of every kind and de- 
 scription whatsoever in the house No. 2, Meadow Place, more 
 particularly mentioned and set forth in the inventory or schedule 
 of even date herewith, and given up to B. on the execution here- 
 of." At the time of the execution one chair was delivered to B. 
 in the name of the whole of the goods. The inventory did not 
 mention all the goods in the house. Held, that no goods passed 
 except those specified in the inventory; Wood v. Rou'cliffe, G Ex. 
 407. See Re Craig, Ir. R. 4 Eq. 158. But, on the other hand, where 
 all the goods in the grantor's house " which are more particularly 
 describBd in the schedule hereto," were assigned, it was held that 
 the words in the schedule did not restrict the generality of the 
 words in the body of the deed; Baker v. Ricliard.^oti, G Vs . R. 
 663. See Walsh v. Trevanion, cited ante, pp. 134, 135. 
 
 In Cort V. Sarjar, 3 H. & N. 370, the words in the schedules were 
 held not to be restrictive under special circumstances. 
 
 * Where an Act of Parliament giving powers of sale [ * 163] 
 and exchange over estates settled by a former settle- 
 ment and Act, contained a recital of the objects of the Act re- 
 stricted in terms to such settled estates, and then vested in trus- 
 tees all and singular the lands in certain counties limited by the 
 
 185
 
 '•^ 164 WORDS UELD RESTRICTIVE. 
 
 former settlement and Act, which were described in the schedule. 
 Held, that lands not included in the former settlement or Act, 
 though described in the schedule, did not pass; Houxird v. Earl 
 of Shrewsburij, L. K. 17 Eq. 378. See the settlement and Act 
 given at length, ShreH-sbury v. Scott, C. B. N. S. 1. 
 
 Special description. — \\'here one having customary tenements, 
 compounded and uncompounded, surrendered to the use of his 
 will " all and singular the lands, tenements, &(?., whatsoever in 
 the manor, which he held of the lord by copy of court- roll, in 
 whose tenure or occupation soever the same were, being of the 
 yearly rent to the lord in the whole of £4 lO.s. §d. and com- 
 pounded for;" it was held that the words "compounded for" 
 restrained the operation of the surrender to that description of 
 copy-holds then belonging to the surrenderor, and that the words 
 "being of the yearly rent of, &c.," which were not referable to 
 any actual amount of the rents either compounded or uncom- 
 pounded, though much nearer to the whole than to the com- 
 pounded only, could not qualify or impugn that restriction; Roe d. 
 Conolly V. Vernon, 5 East, 51. 
 
 Cases on Wills. 
 
 Words held restrictive. — In the following cases, all decided on 
 the construction of wills, the words in italics have been held re- 
 strictive. 
 
 Words of locality. — Devise of " all his freehold and real es- 
 tates whatsoever situate in the city of Limerick ;^^ Miller v. Tra- 
 vel's, 8 Bing. 244; "All my freehold, copyhold, and leasehold 
 messuages lands and hereditaments in The city of Hereford or the 
 liberties thereof in the county of Hereford;" Moser v. Piatt, 14 
 Sim. 95; "All which said hereditaments in the county of 
 [*164] Hants are hereinafter described or referred * to as my 
 Tedworth estate;" Webber v. Stanley, 16 C. B. N. S. 
 698; "All the freehold, copyhold, and leasehold lands, tenements, 
 and hereditaments to which I may be entitled at the time of my 
 decease situate in the j)Cirish of Crowhurst ; Evans v. Angell, 26 
 Beav. 202; "All and every his messuages, lands, tenements, 
 tithes, and tithe commutation rent-charge lying and being ivithin 
 the manor ojidi patish of Goulceby ; " Lister v. Pickford, 34 Beav. 
 576; "Leasehold property, situate at C. in the parish of S. ;" 
 Attivater v. Attwater, 18 Beav. 330; "All and singular my free- 
 hold messuages or tenement lands and hereditaments situate at 
 .£■.;" Pogson v. Thomas, 6 Bing. N. C. 337; "Messuage or tene- 
 ment farm lands and premises with the appurtenances situate, 
 lying, and being at A. in the parish of B. ;" Doe d. Tyrrell v. Ly- 
 ford, 4 M. & S. 550. " All the estate and interest whatsoever 
 which I have or can claim either in possession or reversion of or 
 in any lands, tenements, or hereditaments at C. ; " Doe d. Broivne 
 186
 
 CASES OX WILLS. * 1»)5 
 
 V. Greening, 3 M. & S. 171; •"All and every my messuages, tene- 
 ments, or dwelling- bouses and buildings situate and be ing at, in, 
 or near a street called S. ; " Doe d. xlslifortk v. Bower, 6 B. cSi Ad. 
 453 r " Messuages, cottages, manufactory and land on tit west side 
 of High Street;'' Smith v. Ridgway, L. R. 1 Ex. 40, c'jI. 
 
 Occupancy. — "All the messuages, tenements, land., grounds, 
 hereditaments, and premises situate at T., and now in my own 
 occupation;'''' Doe d. Parkin v. Parki)i. 5 Taunt. 3'21 ; "All that 
 capital messuage or tenement and farmhouse .... and inter 
 alia woods, woodlands .... commonly called T., in the parish 
 of E. in the occupation of W.'' (the woods in hand did not pass); 
 Whitfield V. Langdale, 1 Ch. D. Gl: "All my lands situated at G., 
 now or late in the occupation of S. ; " Homer v. Homer. 8 Ch. D. 
 758; "All those two cottages or tenements, the one occupied by 
 A. and the other by 5." (the facts were very special); Doe d. 
 Hubbard v. Hubbard, 15 Q. B. 227. 
 
 Tenure. — "All that /ree/toZd farm called W., containing 200 
 acres or thereabouts, occupied by W. ; " Hall v. Fisher, 1 
 Coll. 47 ; " All and every my freehold hereditaments *and [ * 165 ] 
 estate in the county of Surrey;" Quennell v. Turner, 13 
 Beav. 240; "All that my freehold estate at or near B. which I 
 purchased of W.; " Flmuss v. Smith, 2 De G. & S. 722. "All my 
 copyhold estates in C. ; " Doe d. Broivn v. Brown, 11 East, 441. 
 
 Miscellaneous. — '■'Subject to a mortgage;-' Pullin v. Pullin, 10 
 J. B. Moo. 464; S. C. 3 Bing. 47 (a); " Which I have surren- 
 dered to the use of my will;'' Gascoigne v. Barker, 3 Atk. 8. "All 
 freehold and copyhold . . . hereditaments . . . whereof I shall 
 die seised or possessed the copyhold part ichereof I hare surren- 
 dered to the ^lse of my will;" Wilson v. Mount, 3 Ves. 191; 
 " Which I became entitled to on the decease of my father ;" Doe 
 d. Rynll V. Bell 8 T. R. 579. 
 
 Examples of rejection of words fitting part only of the 
 property, — Examples of rule 45. — Name. — Conveyance of all 
 that part of the Bog of Allen and Clunagh situate in the barony 
 of Carbery and county of Kildare containing 777 acres 3 rods 24 
 poles, as descrilied by a map annexed hereto." It turned out 
 that part of the land described by the map amounting to 20 acres 
 3 rods 6 poles formed part of the Bog of Muckland. not of Allen 
 and Clunagh. Held, that the whole of the land described in the 
 map passed. Willes, J., in delivering the opinion of the Judges, 
 said, " The words of the conveyance, taken in connection with 
 the map, which is referred to, and made part of it, are sufficient to 
 describe the land in question, and to express an intention to con- 
 vey it. The omission to describe the land by the name of ^Muck- 
 land,' and even the description of it as within another denomina- 
 
 («) Here the words "subject to :i morljiaf^e " were contaiiu'd in a recital, 
 not in tlie de.scripti(jn itself; see Doc d. Btadi v. Jcranj, 1 1!. iS: Aid. 550. 
 
 Ib7
 
 '■• 167 INACCURATE PART OF DESCRIPTION REJECTED. 
 
 tion, amount at most to an erroneous additional description of 
 that which is identified beyond doubt by reference to the map, 
 constat de corpore;'''' Rorke v. Errington, 7 H. L. C. 617, at p. 
 625. Apparently, if a lessor convey the reversion by the descrip- 
 tion contained in the lease, the whole of the property comprised 
 in the lease will pass though, owing to changes made by the lessee, 
 that description applies at the time when the reversion is granted 
 to part only of the premises demised; Burton \. Browne, Palm, 
 319; S. C. 2 Rol. Rep. 261, 265; Cro. Jac. 648: the reports are 
 not easily reconcilable. 
 
 Quantity. — If one grant in this manner "all my meadow 
 
 [ * 166 ] in D., '^containing 10 acres,'''' whereas in truth his meadow 
 
 there doth contain 20 acres, it seems this is a good grant 
 
 for the whole 20 acres;" Shep. Touch. 248; Willoughby \. Foster, 
 
 Dy. 80b. 
 
 Demise of "all that part of the townland of B., containing 509 
 acres, arable, meadow, and pasture, English statute measure, for 
 three lives renewable forever, bounded by" certain specified bound- 
 aries. Held, to pass 400 acres of bog and land reclaimed from 
 bog lying within the same boundaries in addition to the 509 acres; 
 JackY. Urintyre, 12 CI. & Fin. 151: S. C. 3 Jr. L. K 140; 5 Ir. 
 L. R. 229.' 
 
 A conveyance was made by reference to a schedule, and the por- 
 tion of the schedule which related to the parcel in question stated 
 it in the first column, which was headed, " No. on the plan of the 
 Briton Ferry Estate," to be " 153b;" in the second column, under 
 the heading " Description of Premises," it was stated to be " a 
 small piece marked on the plan;" in the third, it was described 
 as being in the occupation of J. E. ; and in the fourth, as contain- 
 ing 34 2^erches. The piece 153b, as marked on the plan, contained 
 27 perches only. Held, that the description in the plan must pre- 
 vail, the acreage being rejected as falsa demonstratio: Llewellyn 
 V. Earl of Jersey, 11 M. & W. 183. "The portion conveyed is 
 perfectly described, and can be precisely ascertained, and no diffi 
 culty arises except from the subsequent statement that it contains 
 34 perches. That, however, becomes merely a false description 
 of that which is conveyed with convenient certainty before. It is 
 a mere falsa demonstratio, and does not affect that which is 
 already sufficiently conveyed ;" per Parke, B., at p. 189: S. C. 12 
 L. J. Ex. 243. 
 
 Boundaries. — " Then it is described as bounded on the east by 
 {inter alia) the defendant's property. But this general descrip- 
 tion of the boundaries does not cut down the effect of the prior 
 description. When, after a description of a property, it is stated 
 that on one side it is bounded by a certain other property, and it 
 appears that it is not so bounded for every inch, there is 
 [ * 167 ] an inaccuracy in the * statement of the boundary, but 
 this is not enough to exclude what is not so bounded, if 
 188
 
 INACCrRATE PART OF DESCRIPTION RE.IE* TED. ■'■'' l»JO 
 
 it appears from the evidence to have been })art of the j>roperty 
 dealt with, and the previous description of that property is suffi- 
 cient to iuehide it;" per Jessel, M. R., Frmicis v. Hayiranl, 22 
 Ch. D. ISl. 
 
 Occupaiicij. — If one grant in this manner "All my manor of 
 AV., late parcel of the possession of the Abbott of S., and late in 
 the possession of ^.," and in truth it was never in the possession 
 of K. ; this grant is good notwithstanding;" Shep. Touch. 247. 
 
 Lease of "All their farm in B. i)t the occupation of IF." "The 
 lease is of all their farm in B., which word {farm) is a capital 
 messuage, and all the lands lying to it, and signifies the chief 
 house and the lands belonging to it, and not a common house, 
 and so has a certainty in itself. And when it goes further and 
 says, in the tenure and occupation of W., this is of no effect, for 
 it was not in his tenure and occupation, yet it should pass, for there 
 is a certainty in the thing demised, viz., the farm in B., and so 
 another certainty put to a thing which was certain enough before, 
 is of no manner of effect;" per Cur., Wrotesly v. Adanui, Plow. 
 191. 
 
 A man having lately purchased a house in D. of T. C, and having 
 no other house in D., made a conveyance thereof by the descrip- 
 tion, "the messuage lately of B. C. in D. ;" Held, that" it passed; 
 Windham v. Windham, Dy. 376b. See also Shep. Touch. 247, 
 248. 
 
 Demise of "all that glebe land lying in A., viz., 78 acres of 
 land, and also the tithes of the said 78 acres, all which lately 
 were in the occupation of P." It appeared that P. had never been 
 in occupation of the tithes. .Held, nevertheless, that they passed 
 by the lease; Swyft v. Eyres, Cro. Car. 546; S. C. sub nom. Vicar's 
 Choral de Litclifield v. Ayres, W. Jones, 485. 
 
 Where the words of a deed were sufficient to pass all the pro- 
 perty comprised in a former deed, but the description of occu- 
 pancy was incorrect, the property passed; Wilkinson v. Malin 2 
 Cr. & J. 636; S. C. 2 Tyr. 544. 
 
 * Lease of " All that part of the park called B., situate [ * 168 ] 
 and being in the county of O. and now in the occupation 
 of S.," lying within certain specified abuttals, together with the 
 houses belonging thereto, " and which now are in the occupation 
 of >S'." Held, that a house on a part within the abuttals, but not 
 in the occupation of S., passed; Doe d. Smith v. Galloivay, 5 B. 
 & Ad. 43; S. C. 2 Nev. & M. 240. 
 
 A house was demised to A. except the roof, which the landlord 
 retained and soon afterwards demised to the owner of the adjoin- 
 ing house., After the determination of the lease to A., the land- 
 lord demised the house by the description of " all that shop, situ- 
 ate at, &c., as the same was late in the occupation of A." Held, 
 that the words, " as the same was late in the occupation of A." 
 were inserted for the purpose of identification only, and not of re- 
 
 181)
 
 * 100 INACCl RATE PART OF DESCRIPTION REJECTED. 
 
 Btricting the property which passed, and accordingly that the roof 
 passed; Martyr v. Lmvrence, 2 De G. Jo. & S. 261 (cf. Bailed v. 
 Fortune, 4 Macq. 127). 
 
 Locality (a). — " If a pai'ish lie in two counties, viz., Berks and 
 
 Wilts, and one grant in this manner, ' all his close called Callis 
 
 in the parish of Htirst in the county of Berks,'' and in truth the 
 
 close doth lie in the county of Wilts; this is a good grant to pass 
 
 the close" (this case is put in Bacon's Law Tracts, Rule 
 
 [ * 169 ] 13, cited L. R. 2 Eq. 824) .\" If * the grant 
 
 be in this manner, 'All that my house in the occupation 
 of J. S., in St. Andrei&s parish,' whereas in truth it is in the 
 parish of K., but in the occupation of J. S., it seems this grant is 
 good to pass the house;" Shep. Touch. 247. But see Doxvtie's 
 Case, post, p. 172. 
 
 "No man can doubt the intent of this deed to pass those lands; 
 it has conveyed so many acres in the possession of A., B., and C, 
 
 the name of the parish only is mistaken Why did the 
 
 parties mention the parish at all in the deed? it was unnecessary;" 
 Lambe v. Reaston, 5 Taunt. 207; S. C. 1 Marsh. 23: but see Cot- 
 terel v. Franklin, 6 Taunt. 284. 
 
 Map. — Demise of all minerals in, upon, or under all or any part 
 of certain hereditaments " described and set forth in the map here- 
 unto annexed, and also in, upon, or under all or any part of M., 
 all which premises are situate in the townships of, &c., and are 
 bounded. &c., and contain together 1400 acres of land or there- 
 abouts, all which are particularly described, delineated, and dis- 
 tinguished in the map or plan thereof annexed to these presents, 
 and which by the agreement of all the said parties hereto is meant 
 and intended to be taken as part of this indenture." Held, on a 
 dispute arising as to the boundary, and the map being on so small 
 a scale that it was impossible that it could ascertain the boundary 
 with sufficient precision, thai the words of the demise were not 
 
 {a) nil and parish distingimhcd. — It is necessary to bear in mind the dis- 
 tinction between a parish and a vill; Co Litt. 115ft, 125a; Addison v. Otway, 
 1 Mod. 250; 2 Mod. 233 (at 237); Stohe v. Pope, 2 Roll. Ab. 54; 4 Cru. Dig. 
 Tit. 32, Ch. 21, ss. 32. 33. Reg. v. Watsoyi. L. R. 32 B. 762; Rudd \. 3Iorton, 
 2Salk. 501. 
 
 It appears that a convej'ance of all a man's lands in a named parish, or in 
 named liberties, -will pass his lands in every vill in that parish or liberties; 
 Waldron v. Rascarit, 1 Vent. 170; Lever v. Hosier, 2 Mod. 47; but that on the 
 other hand a conveyance of all a man's land in A., where there is both a 
 parish and a vill of that name, will pass only the lands in the vill; Stork v. 
 Fo.r, Cro. Jac. 120: S. C. sub nom.. Stoke v.Pope, 2 Roll. Ab. 54. See also 
 2'Roll. Ab. p. 54, pi. 31. 
 
 Where the parish and a vill in it bear the same name, they will be pre- 
 sumed, till the contrary be proved, to be conterminous; Gibson v. CInrk, 1 
 Ja. & W. 159. 
 
 If a place be named generally, it is primd facie a vill; Vinkeston v. Ebden, 
 cited 2 Salk. 501, unless it be the place where a deed is made, when it is 
 primd facie a house; Ward's Case, Latch. 4; S. C. sub nom. Ward v. Kidswin, 
 Latch. 77. 
 
 190
 
 INACCLRATK PART OF DESCRIPTION REJECTED, * 170 
 
 to be controlled by the map; Taylor v. Parrij, 1 Sco. N. R. 570; 
 1 MaQ. & Gr. 004, at 015, foil. A yard delineated but not coloured 
 in a plan annexed to a conveyance, held to pass, the word ' vard ' 
 occurring among the general words: Willis v. Wafnei/ 80 \V K 
 424; S. C. 51, L. J. Ch. 181. 
 
 Erroneous eiuimeratioii. — Cases of erroneous enumeration must 
 be carefully distinguished from cases where the first description, 
 being general in character, is restrained by the subsequent enu- 
 meration of the particulars, as in Griffiths v. Pensou and other 
 cases cited ante, p. 161. Bargain and sale of all his woods, under- 
 woods, &c., standing, &c., in the whole of his manor of C. viz.. 
 In all his wood called E., and in all his wood called F. Held 
 that woods in C, not being any of the woods afterwards expressly 
 named, passed by the conveyance; Stukeley v. Butler Hob 
 168. , 
 
 * See as to an erroneous enumeration not cutting down [ * 170 ] 
 a sufficient description in a will of realty, Travers v. 
 Blundell, 6 Ch. D. 436; of personalty, Dean v. Gibson, L. E. 3 
 Eq. 713; King v. George, 5 Ch. D. (Vll; Re Fleetwood, 15 Ch D 
 594. 
 
 Schedule. — The mortgage of a foundry, with the entwines, fix- 
 tures, machinery, tools, and working plant therein, described the 
 chattels assigned as being "more particularly enumerated and 
 specified in an inventory of even date herewith, to be sicr-ned bv 
 the parties hereto, and read and construed as forming part of these 
 presents." The deed contained no mention of stock in trade. The 
 inventory, which was signed by the mortgagors on the same day 
 as the deed, extended over twenty- one pages. The first twenty 
 pages contained a detailed description of the engines and other 
 chattels which were mentioned under general heads in the deed. 
 At the bottom of page 20 was this clause: " The stock-in-trade 
 consists of bolts, brasswork, wrought and cast iron work, brass 
 and other work, both finished and in preparation." And at the 
 top of page 21 were these words: " Also all cast and wrought iron, 
 steel, timber, and all other stock-in-trade, in and upon the before- 
 mentioned foundry, workshops, and premises." Then came this 
 clause: "The contents of the twenty preceding sheets is a com- 
 plete and exact inventory of the fixtures, machinery, utensils, and 
 things in, upon, or about the foundry mortgaged by us this day." 
 This was immediately followed by the signatures of the mortga- 
 gors. Held, that the stock-in-trade was not included in the mort- 
 gage; Ex parte Jardine, L. K. 10 Ch. 322. See also Dyer v. Green, 
 1 Ex. 71, Daines v. Heath, 3 C. B. 938; Dam pier v. Pole, 3 Ex. 
 678, where the schedule was referred to but not annexed. 
 
 Miscellaneous. — "If the release had l)een in Whiteacre in Dale, 
 which I have by descent on the part of my father, and I bad it 
 not by descent on the part of my father, but otherwise, yet the 
 release is good . . . . for the thing was certainly expressed by 
 
 191
 
 * 172 INACCURATE PART OF DESCRIPTION REJECTED. 
 
 the first words, in which case the expression of another certainty- 
 is not necessary;" Plow. 191. See also Plow. 395; Shep. Touch. 
 
 247. 
 [ * 171 ] * Conveyance by husband and wife of all the mes- 
 suages of them or either of them in certain counties, 
 " all which said hereditaments were heretofore the estate and in- 
 heritance of" the wife. Held, that the husband's own property 
 passed; Youde v. Jones, 14 Sim. 131 (see p. 149). 
 
 Cases on Wills. 
 
 In the following cases, all decided on the construction of wills, 
 the words in italics which fitted part only of the parcels described 
 bv the rest of the description were rejected, i. e., construed as not 
 being restrictive. 
 
 Situation. — "All that and those messuage or tenement-houses, 
 
 buildings, farm and lands called H situate in the parish 
 
 of L containing by estimation 80 acres, more or less, 
 
 now in the occupation of J. ; " Whitfield v. Langdale, 1 Ch. D. 
 61 ; " All that my share and interest in the lands known by the 
 name of D., situate in the parish of K., noiv in the occupation of 
 E.:"" Hardivick v. Hardivick, L. R. 16 Eq. 168; "All my mes- 
 suages, tenements, and lands, situated at or within D. in the oc- 
 cupation of F. ; " Homer v. Homer, 8 Ch. D. 758. 
 
 Occupation. — " All that my farm lands and hereditaments called. 
 T. Farm, situate within the parish of D., noiv in the occupation 
 of C.;" Goodtitle d. Radford v. Southern, 1 M. & S. 298: "My 
 farm at B. in the tenure of J. : " Goodtitle d. Paul v. Paul, 2 
 Burr. 1089; S. C. 1 Wm. Bla. 255; see Hardwick v. Hardivick, 
 L. R. 16 Eq. 168 (given above); " The house or tenement ?f7ierem 
 W. dtvelleth, called the White Swan;" Chamberlaine v. Turner, 
 Cro. Car. 129; "The corner house in A. in the tenure of B. and 
 H.;" Blague v. Gold, Cro. Car. 447, 473; "All my messuage or 
 dwelling-house, out-buildings, gardens, lands and appurtenances 
 in whic?i I note dwell at H.; Nightingall v. Smith, 1 Ex. 879. 
 
 Miscellaneous. — '^ Containing by estimation 85 acres;"" Whit- 
 field v. Langdale, 1 Ch. D. 61 (given above) ; "All that and those 
 my freehold messuages or tenements, hereditaments and 
 r * 172 ] pi-emises with the appurtenances thereunto * belonging, 
 called West Cliff, situate, lying, and being at West 
 Cowes aforesaid, aiid now used or occupied as lodging-houses ; " 
 Cunningham v. Butler, 3 Giff. 37; ''Which were given and de- 
 vised to me by my brother's will:'" Welby v. Welby, 2 V. & B. 
 
 187. 
 
 In the following cases the words in italics, which did not fit 
 anything belonging to the testator, were rejected. 
 
 Tenure. — ''Freehold houses in Aldersgate Street;" Day v. 
 Trig, 1 P. Wms. 286 (Tracy, J., saying that leaseholds could not 
 192
 
 TWO CERTAIN INCONSISTENT DESCRIPTIONS. * 173 
 
 pass by the description of freeholds in a deed); '' Freehold lands 
 in parishes of A., B., and C. (testator having no freeholds in B. 
 and C. ); Doe d. Dunning v. Cranstoun, 7 M. & W, 1; '' Lease - 
 liold" houses, the testator having, after the date of his will, pur- 
 chased the reversion in fee; Cox v. Bennett, L. R. G Eq. 422; 
 Saxtoii V. Saxton. 13 Ch. D. 359. 
 
 Observation. — It has been said that when there are two cer- 
 tain descriptions, the first shall necessarily prevail; but this ap- 
 pears not to be correct. 
 
 In Doictie's Case, 3 Rep. 9b, bargain and sale of "all his tene- 
 ments in the parish of St. Andrew in Holborn, in the occupation 
 and tenure of W. G.," was held to pass nothing, as the vendor 
 had nothing in the parish of St. Andrew, though he had property 
 in St. Sepulchre in the occupation of W. G. One of the points 
 resolved was the following: — "First, that nothing passed by the 
 said bargain and sale, for notwithstanding the latter certainty, 
 scil. in the tenure of William Gardiner, was true, yet because tlie 
 first certainty, scil. in the parish of St. Andrew in Holborn, was 
 false, for this cause the bargain and sale was utterly void. But 
 otherwise, had it been, if a true certainty had been in the first 
 place, as if he had bargained and sold, 'the tenements, &c., in 
 the tenure of William Gardiner in the parish of St. Andrew, Hol- 
 born,' there it was agreed that the tenements shall pass well 
 enough notwithstanding the addition of the falsity for idile jier 
 inidile non I'iticdur. 
 
 * In commenting on Doictie^s Case, Hobart, J., says [ * 173 ] 
 (Stukcleij V. Bntler, Hob. 171), "But where it is added 
 in that case that the Court was of opinion, that if he had begun 
 with the tenure of G., which was true, and ended with the parish 
 mistaken, that the grant had been good by the rule idile jier inu 
 tile non vitiatiir : I hold it plain contrary; for the several circum- 
 stances and descriptions circumscribe and ascertain the grant. 
 And it is a good rule incivile est nisi tola sententia perspecta dr 
 aliqiid parte judicare ; ^^ and he cites Doddington''s Case, 2 Rop. 
 32, antP., p. IGO. See also Rorke v. Errington, 7 H. L. C. 617, ante. 
 p. 105; Jackw M'lnti/re, 12 CI. & Fin. 151, ante, p. 166; Wind- 
 ham v. Windhatn,Dv. 3706, Shep. Touch. 247, cited ante, p. 108; 
 and see Roe v. Lidivell, 11 Ir. Ch. R. 320. 
 
 Rule 46. — Ejusdem generis. — Where a description of [)rop- 
 erty sufficiently clear to render it certain what is intended is fol- 
 lowed by a general description, introduced by the words "and 
 also," or the like, it will be taken that the object of introducing 
 the general description is to guard against any accidental omiw- 
 
 13 INTEUl'KKTATION OF DKEDS. 193
 
 ■" 17-t EJUSDEM GENERIS. 
 
 sioas; and the general description will in most cases be held to 
 comprise such property only as is cjitsdem generis with that com- 
 prised in the specific description. 
 
 ''It is very common to put in a sweeping clause; and the use 
 and object of it, in general, is to guard against any accidental 
 omission; but in such cases, it is meant to refer to estates or 
 things of the same nature and description with those that have 
 been already mentioned;" per Lord Mansfield, C. J., Moore v. 
 Magrath, 1 Cowp. 12. 
 
 "It is a general rule of construction that, where a particular 
 class is spoken of, and general words follow, the class first men- 
 lioned is to be taken as the most comprehensive, and the 
 [ * 174 ] general words treated as referring to '-• matters ejusdem 
 generis with such class ;" per Pollock, C. B., Lyndon 
 V. Standbridge, 2 H. & N. 51; and per Lord Campbell, C, Clif- 
 ford V. Arundel, 1 De G. F. & J. 311. 
 
 Examples. — Lease by a bishop of a manor house, of tbe site 
 thereof, and of certain particular .closes and demesnes, by par- 
 ticular names, and of all other his lands and demesnes. Held, 
 that ancient park and copyhold land did not pass by the latter 
 general words; Lord North v. Bishop of Ely, cited 1 Bulst. 100. 
 
 A. being seised of a manor and other real estate in the county 
 of M., mortgaged the last mentioned real estate to B. ; by a sub- 
 sequent deed he mortgaged to C. " all the hereditaments and 
 premises comprised in the previous mortgage, and all other the 
 lands, tenements, and hereditaments (if any) in the county of 
 M.," of which he was seised: held, that the manor did not pass, 
 Rooke V. Keusiiigfov, 2 K. & J. 753. 
 
 The C. pi'operty consisted of a mansion house and thirteen 
 fields, and two mills with tbe lands belonging thereto. The tenant 
 in tail, by deed declaring the uses of a recovery, recited his in- 
 tention to convey the property thereinafter particularly men- 
 tioned, and he conveyed " all those the capital mansion house, 
 messuage, or tenement, with the several out-offices, gardens, 
 plantations, and hereditaments thereunto belonging, commonly 
 called ©r known by the name of C. ; And also those fields, closes, 
 pieces, or parcels of land or ground and hereditaments (eight in 
 number), commonly called or known by the several names, &c. 
 (naming them), being parts and parcels of the demesne lands of 
 G. in the holding or occupation of T. M., together with all and 
 singular houses, out-houses, edifices, buildings, &c., lands, mead- 
 ows, &c., hereditaments and appurtenances whatsoever, to the 
 said capital messuages, tenements, lands, hereditaments, and 
 premises belonging, or in anywise appertaining, or thei'ewith or 
 with any part or parcel thereof usually set, let, held, occupied, or 
 enjoyed, or accepted, reputed, taken for, or known (sic; qu.) as 
 194
 
 EJISDEM GENERIS. *17G 
 
 part, parcel, or member thereof, or appurtenant thereto, 
 or to *any part or parcel therojf." Held, that the pre- [ * 175 ] 
 vious particular enumeration in the deed confined the 
 operation of the subsequent general words, and that the inansion 
 house and eight fields oulv passed bv the deed; Doe d. Mci/i-ic/c 
 V. Meyrick, 2 Cr. & Jer. 228; S. C. 2^ Tyr. 178. 
 
 By indentures of lease and release reciting that B. was entitled to 
 a share in specified freeholds and leaseholds, and that he proposed 
 to assicrn over all his interest in the aforesaid premises, and in such 
 other property situate in Great Britain or Ireland, whether real 
 or personal, as he might at the time of executing the indenture 
 be entitled to, for the benefit of his sisters; B. released his undi- 
 vided share in specified freeholds to the trustee and his htirs, 
 and assigned to the trustee his undivided share in the leaseholds, 
 '•and all other the pi-operty situate in Great Britain or Ireland 
 or any part thereof, whether real or personal," to which he was 
 then entitled, upon certain trusts for the benefit of his sisters. 
 B. was at the time of executing the deed entitled to a share of a 
 freehold house not mentioned in the deed. Held, that it did not 
 pass, because the general words had reference to the leaseholds 
 only; Doungsicorthv. Blair, 1 Keen. 795; S. C. 6 L. J. N. S. (Ch. ) 
 263. 
 
 Trustees, who had a power to raise money by sale or mortgage, 
 and to manage and receive rents, were directed to apply the 
 " moneys to be raised or received as aforesaid," in or towards pay- 
 ment, &c., of certain mortgage and other debts, and after provid- 
 ing for keeping down the interest on the debts out of "the rents 
 and profits and other moneys in their hands," they were directed 
 to. pay an annuity out of the " rents or profits or any other moneys 
 held by them on the trusts of these presents." Held, that the 
 annuity was charged on income only, as the words "other moneys" 
 must be restricted according to the rule, and would apply to fines 
 and small things in the nature of income, not being exactly rents 
 and profits; Clifford v. Arundell, 27 Beav. 209; S. C. 1 D. F. & J. 
 307. 
 
 Assignment by way of mortgage of " all and every the 
 * household goods and furniture, stock-in-trade, and [ * 170 j 
 other household effects whatsoever, and all other goods, 
 chattels and effects, now being, or which shall hereafter be in, 
 upon, or about the messuage, &c., and all other the personal estate 
 whatsoever" of the mortgagor. Held, not to pass th(^ lease of 
 the house in which the goods were; Harrison v. Bhirkhiirn, 17 C. 
 B. N. S. 078. 
 
 Assignment to creditors of "all and singular the household 
 furniture, plate, linen, and cLina, stock-in trade, goods, and njer- 
 chandise, debts, sums of money, bills, notes, and Hecuriiies for 
 money, and all other the estate and effects whatsoever and where- 
 soever, of or to which A. was then possessed of or entitled." 
 
 195
 
 *177 EJUSDEM GENERIS — EXCEPTIONS. 
 
 Held, not to pass a contiageat interest under a will; Pope v. 
 Whitcombe, 3 Kuss. 124; see also Re Wrujht, 15 Beav. 367. _ 
 
 A lease contained power to the landlord to take possession of 
 any part of the land demised if required by bim *' for tbe pur- 
 pose of building, planting, accommodation or otherwise." Held, 
 that the words " or otherwise " were to be restricted to purposes 
 cjusdem generis, and therefore did not authorize the landlord to 
 take possession of the land for the purpose of selling it to^ a rail- 
 way company; Johnson v. Edgivare, &c.. Railway Co., 35 Beav. 
 480. 
 
 Reversion and estate in possession. — A reversion is ejusdem 
 
 generis with an estate in possession within the meaning of the rale; 
 
 Doe d. Pell v. Jeyes, 1 B. & Ad. 593. But a reversion was held 
 
 not to pass where if it had passed it would have been ipso facto 
 
 N forfeited; Re Waley, 3 Drew, 165. 
 
 Observation. — Context. — The context may readily show that 
 the rule is not to be applied. 
 
 In Ringer v. Cann, 3 M. & W, 343, where the words were 
 nearly the same as in Harrison v. Blackburn, ante, 
 [ * 177 ] '" p. 176, it was held that the lease passed, on the grounds, 
 first, that from the nature of the transaction (it being a 
 creditors' deed), the object must have been to pass everything of 
 value; and secondly, that the deed contained a provision that the 
 assignees should pay the rent for a limited period. 
 
 1st Exception. — Where among general words something not 
 ejusden\ generis is mentioned by way of exception, this indicates 
 that the general words are not to be restricted. 
 
 An assignment to creditors by a debtor of " all his stock-in ■ 
 trade, book and other debts, goods, securities, chattels, and all 
 effects whatsoever, except the wearing apparel of himself and 
 family." Held, to pass a contingent interest, on the ground that 
 the exception of the wearing apparel showed that it was in- 
 tended that all the assignor's property with that exception was 
 intended to pass; Ivison v. Gassiott, 3 D. M. G. 958. 
 
 2nd Exception. — " If the particular words exhaust a whole 
 genus, the general," [i.e., 'collective,'] "words must refer to some 
 larger irenus;" per Willes, J., Fenwick v. Schmalz, L. R. 3 C. P. 
 315; citing Reg. v. Payne, L. R. 1 C. C. 27. 
 
 Rule applied to statutes. — Rule 46 has been applied to the con- 
 struction of Acts of Parliament; see Maxwell on the Interpreta- 
 tion of Statutes, 405, et seq. 
 196
 
 WHKN LEASEHOLDS PASS. * 178 
 
 Certain kinds of carriers and travellers were specifically men- 
 tioned in two Acts of Parliament on the same subject, and the 
 words "other persons whatsoever'-' also appeared. Held, that 
 the special description had the effect of excluding carriers not 
 mentioned; Sandiinan v. Breach, 7 B. & C. 96. 
 
 Act imposing rates on inhabitaots of any "land, house, shop, 
 warehouse, vault, mill, or other teuemeot" in a parish. Held, 
 that the vicar was not rateable in respect of his tithes as an 
 "other tenement;" The Queen v. Necill, 8 Q. B. 452. 
 
 *See also East London Waterworks Co. v. Trustees [*17S] 
 for Mile End Old Town, 17 Q. B. 512; Lyndon v. Stand- 
 bridge, 2 H. & N. 45. 
 
 Rule 47. — Freeholds only j^^^ss ivhere the assurance is proper 
 to pass them only — Where the terms of the description are gen- 
 eral, and the instrument and mode of assurance are proper 
 for conveying freeholds, there, prima facie, freeholds only will 
 pass. 
 
 This is the rule laid down by Mr. Preston (Shep. Touch. 92), 
 but the cases cited by him — namely Rose v. Bartlett, Cro. Car. 
 292; Day v. Trigg, IV. W. 28(5; Knotsford v. Gardiner, 2 Atk. 
 450 — are all cases of wills. See Edwards & Denton s Case, Godb. 
 188; S. C. sub nom. Turpine v. Forreyner, 1 Buls. 99, a case of a 
 deed, where, though the judges expressed their opinion that the 
 leasehold interest did not pass, the decision turned on another 
 point. 
 
 It appears to be clear that, on the one hand, the conveyance 
 will not be held to pass leaseholds or copyholds where the result 
 would be to create a forfeiture; Shep. Touch. 91; Francis v. Min- 
 ton, L. R. 2 C. P. 543; (Francis v. Minton is stated, jiost, p. 209,) 
 and that, on the other hand, it will pass leaseholds or copyholds 
 where there are no freeholds which answer the description of the 
 lands expressed to be conveyed; as in Marshall v. Frank, Gilb. 
 Eq. Rep. 143; S. C. Pre. Ch. 480; or where they have for some 
 consideral)le time been holden with the deemed part of the estate 
 described in the deed; Doe d. Davies v. Williams, 1 H. B. 25. In 
 Goodwin v. Noble, 8 El. & Bl. 587, a lessee who intended to pur- 
 chase the freehold, by deed purported to convey it by way of 
 mortgage, held under the circumstances, which wore very special, 
 that the leasehold interest did not pass. 
 
 Leaseholds passing as ^' i)ersonal property .''^ — No general rule 
 can be laid down as to whether leaseholds will pass by a general 
 description of "personal property." The principal cases are 
 Ringer v. Cann, 3 M. & W. 343: Doe d. Farmer v. Howe, 9 L. J. 
 
 197
 
 * 179 SOIL OF IIIGUWAY. 
 
 N. S. Q. B. 352: Hopkinson v. Lusk, 84 Beav. 215: White v. Hunt, 
 
 L. R. Ex. 32. 
 [ * 179 ] * Rule 48. — Land abutting on highway. — By the con- 
 veyance of land abutting on a highway, or separated from 
 it by a strip of uninclosed land, the prima facie presumption of 
 law, in the absence of evidence of ownership, is that the strip 
 and the soil of the road usque ad medium filuni, ipass:^^ .Beckett 
 V. Corporation of Leeds, L. R. 7 Ch. Ap. 421 (6). 
 
 ^'PrimCi facie the presumption is that a strip of land, lying be- 
 tween a highway and the adjoining close, belongs to the owner 
 of the close; as the presumption also is that the highway itself, 
 as \sic; qy. ad\ medium filum vice, does. But the presumption 
 is to be confined to that extent; for if the narrow strip be con- 
 tiguous to, or communicate with, open commons, or larger por- 
 tions of land, the presumption is either done away or consider- 
 ably narrowed;" per Gibbs, C.J., Grose v. West, 7 Taunt. 41. 
 See also Simj^son v. Dendy, 8 C. B. N. S 433, affirmed on app. 
 7 Jur. N. S. 1058; and as to a iooi^^Q^ih, Berry & Goodmans Case, 
 2 Leon. 147. 
 
 " It appears to me that a conveyance of land, described as 
 abutting on a road, passes a moiety of the soil of the road, un- 
 less there be something in the context to exclude it. It is like 
 the case put in Rolle's Abridgment Graunts{V.), pi. 6, 'Si home 
 
 [b) See Glenn on Higliways, cliap. 3, p. 39, et scq., and authorities there 
 cited. 
 
 *^ The law with respect to puhlie liighways and unnavigable streams is 
 the same in respect to the presumptions that arise trom grants bounded 
 thereon. It is the general rule, well-established by authority, and lounded on 
 true policy, that a cnnveyance of landsbounded on a highway gives the gran- 
 tee a title" to the middle "of the road. Cox r. Freidly, 33 Pa. St. 124; Howard 
 r. Ingersoll, 13 How. 421; Greer v. N. Y. Cent. K. R. Co., ol Hun. (N. Y.) 
 246; Transue r. Sell, 105 Pa. St. 604; Helmer v. Castle, 109 111. 664; Atchi- 
 son, Topeka. &q., 11. R. Co. v. Patch. 28 Kansas, 470; Low r. Til)bets, 72 Me. 
 92. As to what is sutlicient to rebut the presumption that the grant extends 
 to the middle of the street, there is some variation in the different states. 
 In some states, where the language of the deed gives the boundary as " the 
 -side of the highway," or similar expressions, it has been held sufficient to 
 rebut the presumption. DePeyster v. Mali, 27 Hun. (N. Y.) 439; King's 
 Co. Fire Ins. Co. v. Stevens, 87 N. Y. 287. In other states such expressions 
 are held not sutlicient to rebut the presumption. Paul v. Carver, 26 Pa. St. 
 223; Woodward, .1., in Grier v. Sampson, 27 Pa. St. 133, said: "A convey- 
 ance of land bounded by a road or a street gives the grantee a title to the 
 uriddle of the road or street, if the grantor owned thereto. And in the ab- 
 sence of title papers we are to presume that a lot bounded by a street ex- 
 tended to the middle of it. If the street was laid wholly on the I'djoiuing 
 owner, the defendant should have shown it." In Cox v. Freedly, the court 
 said: "The dedication of streets, lanes and alleys divests the proprietor o ' 
 his right of .soil therein, and purchasers of lots bounded on streets acquire 
 title Usque ad filum mediae, unless there be a very express limitation of their 
 grants to the margin ot the street." o'3 Pa. St. 124. 
 
 198
 
 » 
 
 SOIL OF UIGIIWAY. * IS I 
 
 grant nn messuage vocatum Falstolfe Place. p/'0(«^ imdique i)iclu- 
 ditur aquis. per ceiix paroles le soiio del motes en que le ewe est 
 passera; P. 9 Car. B. R.. enter Stiiuf & Morgan, j^er Curiam, re- 
 solve sur uu trial al barr.' And this received the assent of Chief 
 Baron Comyns; see Com. Dig. Grant (E. G);" per Willes, J., 
 Simpson v. bendy, 8 C B. N. S. 472. 
 
 " I am f'^i opinion that, where a close is conveyed with a de- 
 scription by measurement and colour on a plan annexed to and 
 forming part of the conveyance, and the close abuts on 
 a highway, and there is nothing to exclude * it, the pre- [ * ISO ] 
 sumption of law is that the soil of the highway 7(sque 
 ad medium fihim passes bv the conveyance; " per Erie, C. J., Ber- 
 ridge v. Ward, 10 C. B. N. S. 415. 
 
 " I quite agree that where there is a plot of land conveyed ad- 
 joining to a road or river, the prima facie presumption is, that 
 up to the medium filum aquae or viae, whichever it may be, belongs 
 to the purchaser. . . . But ... it has always been held to be 
 enough [i.e , to rebut that presumption] when there is anything 
 to show that it was not the intention to convey any part of the 
 road;" per Blackburn. J., Plumstead Board of Woi'ks v. British 
 Land Co., L. R. 10 Q. B. 24. 
 
 The rule applies whatever be the tenure of the property. 
 
 Copyholds or leaseholds. — As to the property granted, a copy- 
 bolder stands in the place of the lord, the leaseholder in the place 
 of the lessor. It is very improbable that when a lease or grant 
 is made of land near the high road, and there is between the 
 highway and the land inclosed a small quantity of uniuclosed 
 land, of little or no use to the lord or lessor, that he should sepa- 
 rate it from the rest, or reserve to himself such land. When a 
 grant of land near to a road is made (even where it is inclosed 
 and separated from the land adjoining), it appears to me that the 
 prima, facie presumption is, that the land, on that side of the 
 fence on which the road is, passes likewise with it. Generally 
 speaking, where an inclostire is made, the party making it erects 
 his bank and digs his ditch on his own ground, on the outside of 
 the bank. See 2'>ost, p. 5S4, s. v. Hedge. The land which con- 
 stitutes the ditch in jioint of law is a part of the close, though it 
 V)e on the outside of the baiik. And if something further is done 
 for his own convenience when that which constitutes the fence is 
 dug out from his land, as, for instance, if a small portion of un- 
 iuclosed land near a public or private way is left out of the in- 
 closure to protect and secure the occupation of that ])art of the 
 land which is incloserl. that, in point of law, is a part 
 of the close on * which the inclosure is ma(l'\ If any | ••181] 
 grant of such land, being copyhold, had been made !»>- 
 fore the inclosure, the subse(iueut grants, would probably con- 
 
 VM)
 
 * 182 SOIL OF HIGinVAY. 
 
 tinue to be made in the same way, notwithstanding the inclosure, 
 and all the land, both within and without the inclosure, would, 
 therefore, pass by those grants. It seems to me, therefore, that 
 the rule that waste land near a highway is to be presumed 
 prima facie to belong to the owner of the inclosed land next ad- 
 joiuinu-, is not confined to a case where the owner of that land 
 is a freeholder, but extends equally to cases where the owner is a 
 leaseholder or a copyholder. In either case evidence may be 
 given to rebut the primu_ facie presumption; " pe?- Holroyd, J., 
 Doe d. Pring v. Pearsey, 7 B. & C. 304; S. C. 9 D. & K. 908. 
 
 On the other hand, in The Marquis of Salisbury v. The Great 
 Northern Railway Co., 5 C. B. N. S. 174, where the lord of the 
 manor had made a grant of a strip of waste by the roadside as 
 copyhold, Williams, J., says (at p. 209); " We must look to the 
 intention,— Did he or did he not intend to pass to the grantee 
 any rights which he had in the soil of the road? When we find 
 that the piece of land so granted was to be held of the lord as 
 part of the copyhold of the manor, it seems to me to be impos- 
 sible to say that it was intended to convey anything but the 
 right to the very piece of land granted, the right to the soil 
 of the adjoining road being left as it was." In that case the 
 books and plans deposited by a railway company according 
 to the act of Parliament, included three pieces of land, num- 
 bered 75, 79, and 47, and gave their exact contents. The piece 
 No. 47 was in fact the turnpike road, and was described as be- 
 longing to the trustees of the road. It was held that though the 
 road really belonged to the owner of 75 and 79, the conveyance 
 by him of the freehold of those plots, which adjoined the road, 
 did not pass any part of the soil in it. The recitals referred to 
 the plans, in which the road was treated as a distinct parcel of 
 land, and the grant was made by reference to a schedule 
 [* 182] which did not include No. 47. The * decision pro- 
 ceeded on the "particular circumstances of the case" 
 (p. 209), and form of the conveyance (see per Blackburn, J., in L. 
 R., 10 Q.B., p. 22). And Williams. J., said that "in the ordinary 
 case, the soil of the road passes, although the conveyance is silent 
 as to its existence and although the particular measurement of 
 each piece is given and would exclude the road." 
 
 Strip communicating with commons, &c. — But the rule does not 
 apply if the narrow strip between the land described in the con- 
 veyance and the road be contiguous to or communicate with open 
 commons or larger pieces of land. In that case the evidence of 
 ownership which applies to the larger portions applies also to 
 the narrow strip which communicates with them ; Grose v. West, 
 7 Taunt. 39. 
 
 200
 
 SOIL OF IIIGinVAY — OF RIVER. * 182 
 
 Bed of River. — Apparently the grant of land bounded by a 
 non tidal (e) river passes the bed of the river to the middle.*' 
 
 [c) There is uo presumption that the ownership of the bed of a tidal river 
 g)e^ with the ownership ot the ad.joinini!; soil, and theref)re in Crown 
 grants of land on tidal rivers, ^w hint facie the boundary would be high-water 
 mark, though evidence might show that the soil between high and low 
 water mark", or the bed below low water mark, passed by the description of 
 the land. See Coulson & Forbes on the Law of Waters, p. 71. As to own- 
 ership of the soil of a lake see Bkmtnjicld v. Johmion, Ir. K. 8 C. L. (IS, at 
 pp. ^y. 899, citing Williams \. Wilcox, 8 A. & E. 333, and Marshall v. Ullcs- 
 intter Slcam Xar. Co., 3 B. & S. 74"J. 
 
 *" The general rule is well established that where a stream, not narif/ahle. 
 is called for in a deed as a boundary or monument, the title passes to the 
 centre of the stream. It would reciuire an express e.xception in the grant, 
 or some clear and unequivocal declaration, or certain and immemorial usage, 
 to limit the title of the grantee in such cases to the edge of .the river. 3 
 Kent. Comni. 471; Paul r. Carver, 26 Pa. St. 221; Stover r. Jack, (JO Pa. St. 
 339; Howard v. lugersull, 13 How. 421; E.v parlc Jennings, G Cowen, 536; 
 Sleeper r. Laconia, (JO N. H. 201 ; Cole r. Wells, 49 Mich. 450; June v. Pur- 
 cell, 3G Ohio St. 39li; Warmer r. Sonthworth, 6 Conn. 471. 
 
 With regard to nacigable streams the rule is equally lirmly settled that a 
 grant bounded by such a stream only conveys title to low water mark. 
 Chapman r. Kimball, 9 Conn. 38; Haight v. Keokuk, 4 Iowa, 199; Tomlin 
 V. D. B. & M. R. K. Co., 32 Iowa, 106; People r. Canal Appraisers, ;i3 N. Y. 
 487; La Plai-sauce Bay Harbor Co. v. Monroe, Walker Ch. (Mich.) 155; 
 Monongahela Bridge Co. v. Kirk. 4(> Pa. St. 112; Wisconsin Kiver Imp. Co. 
 j;. Lyono, 30 Wis. (Jl; Railroad Co. r. Schurmire, 7 Wall. 272. And in fact 
 the owner of land Jtordering on a navigable stream has the absolute title 
 only to ordinary high water mark. As to the intervening space be- 
 tween high and low water mark, the title of the private owner is quali- 
 lied; the right ot pas.sage over it in high Avater remains in the pul)lic. The 
 state may use it for purposes connected with the navigation of the stream 
 without compensation, and may protect it from an unauthorized use of it 
 even bv the owner of the land to low water mark. Shrunk v. Schuylkill 
 Nav. Co., 14 S. & R. (Pa.) 79; Stover v. Jack, 60 Pa. St. 339; and see cases 
 cited supra. 
 
 It becomes important, in view of its effect on riparian rights, to consider 
 the distinction between navitjahlc and unnaviqahle rivers. At the common law 
 those streams only are consid-^ed navigable in Avhich the tide e])bs and 
 Hows, and all others, regardless of their size, are considered not navigable. 
 The distinction was manifestly not applicable in the United States, where 
 we have num))ers of large inland streams which are in fact navigable, and 
 yet which the tide does not affect. Consequently several of the states have 
 refused to recognize the common law distinction, and holdall rivers to l)e 
 navigable which arc so as a matter ot i'act, or which the sfat(> legislature 
 may declare to be public highways. Such is the ruh; in Pennsylvania. Johns 
 V. Davids )n, 16 Pa. S(. 512; Caso'n r. Blazer, 2 Binn. (Pa.) 475. In others of 
 the states the rule of the common law has been adhered to, and the (ebbing 
 or flowing of the tide is the criterion of navigability. Gavit r. Chambers, 
 3 Ohio St. :596; June v. Pnrcell, 36 Ohio St. 396; Delaplain r. C. i^ N. W. I^y 
 Co., 12 Wis. 214; P.raxton /-. Ih-essler, 64 111. 488. The common law distinc- 
 tion was also early adojttcd by the Supreme Court of llie I'nited Slafes, and 
 in Jones r. Sollard, 21 Howard, ()5, in which case it was ai)i)lied to the Mis- 
 sissipi river, the cinirt said : " Nor does tlie size of the river alter the case. 
 To hold that it did would be dangerous tampering witli riparian rights, in- 
 volving litigation as to the size of rivers as matter of fact, rather liian ])ro- 
 ceeding on established i)rineiples.of law. But the soundness of the rule 
 as applied to the great waterways of the United States was (iucstioncd in 
 
 201
 
 * 183 SOIL OF PRIVATE ROAD. 
 
 The law is summed up by Fitzgerald, J., as follows : — "The 
 authorities adverted to in the course of the argument establish, 
 as a general rule of construction, that where land adjoining a 
 highway or inland river is granted, the j^'^it^i^^'' f^-C^^ presumption 
 is that the parties intended to include in the grant a moiety 
 of the road or of the river bed, as the case may be; and that 
 such general presumption ought to prevail, unless there is some- 
 thing to indicate a contrary intention; . . . ..and the authori- 
 ties seem further to establish that this general presumption is 
 
 not to be considered as rebutted by this circuujstance 
 [ * 183 ] alone, * that the subject of the grant is described as 
 
 abutting on or bounded by the road or river, or that the 
 quantity of land specifically described as granted is satisfied 
 without including the half of the road or river, or that the grant 
 refers to aTuap or plan in which the half of the road or river is 
 not included. To rebut the general presumption, there must be 
 something in the language of the grant indicating an intention 
 to exclude [or] something in the subject-matter or in the sur- 
 rounding circumstances from which such an intention may rea- 
 sonably be inferred; " Dicyer v. Rich, Ir. Rep. 6 C. L. 149. See 
 also per Blackburn, J., Flumstead Board of Works v. British Land 
 Co., Li. R. 10 Q. B. at p. 24; Lord v. Commissioners of the City of 
 Sydney, 12 Moo. P. C. 473, where many authorities are cited; jjer 
 Lord Cranworth, C, Wishart v. Wyilie, 1 Macq. 389; and Orr- 
 Ewing v. Colqnhoun, 2 App. C. at p. 854. 
 
 Private ?^oad.— Although, in the absence of direct evidence of 
 ownership, the presumption is that the soil of a private road 
 usque ad medium plum belongs to the adjoining owners (Holmes 
 V. Bellingham, 7 C. B. N. S. 329; S. C. 29 L. J. C. P. 132; Smith 
 v. Hoicden, 14 C. B. N. S. 398), and therefore probably a convey- 
 ance of the adjoining land passes the soil of the road usque ad 
 medium filuin, yet there is very great difficulty in holding that 
 the soil of the road would pass by the conveyance of a plot of 
 ground forming part of an estate laid out for building; Plumstead 
 Board of Works v. British Land Co., L. R. 10 Q. B. IG. It will 
 be observed that, from the nature of the case, the owner of the 
 building estate intends to grant some rights over the roads to 
 subsequent purchasers, and he will bo unable to do this unless 
 he retains the soihof the roads in himself. This argument is the 
 more cogent when the property sold is described as bounded by 
 an intended new street, for in this case, unless the width of the 
 street is stated, the position of the middle of the street, and there- 
 fore the boundary of the property sold, will depend upon the 
 
 Kailroad Co r. Schurmeir, 7 Wall. 27:2, where Clifford, .T., said : '" Irrespec- 
 tive (if the acts of Conoress, it slionld be remembered that navigable waters, 
 not affected by the ebb and flow of the tide, such as the great Lakes and 
 the Mississippi river, were nnknown to courts and jui'ists when the rules 
 of the common law were ordained." 
 
 202
 
 PARTY WALL — EASEMENT — PROFIT A PRENDRE. * 185 
 
 width that is actually given to the street, which is not 
 
 known at the time of the conveyance; *Leigh v. J(tck\ 5 [ * 184 ] 
 
 Ex. D. 264. Streets in toicns — Probably the rule does 
 
 not apply to the case of a street in a town; Beckett v. Corporation 
 
 of Leeds', L. R. 7 Ch. 421. 
 
 Party icall. — Probably the conveyance of one of two houses 
 separated by a wall, where the person conveying owns both of 
 thera, passes an undivided moiety of the wall; see Wiltshire v. 
 Sidford, 1 Man. & Ry. 404, 407; Cubitt v. Porter, 8 B. & C. 257; 
 S. C. 2 Man. & Ry. 207. 
 
 See as to meaning of " party-wall," Watson v. Gi^ajj, 14 Ch. D. 
 194; Standard Bank of Br. S.'Am. v. Stokes, 9 Ch. D. (38; Knight 
 V. Pursell, 11 Ch. D. 412; 18 & 19 Yict. c. 122, part 3. 
 
 Rule 49. — Easements by what ivords created. — No special 
 words are necessary for the creation of an easement, or a pi^ofit a 
 prendre. 
 
 Examples. — An easement has been created by the words " A. 
 grants and agrees with B., his heirs and assigns, that it should 
 be lawful for them at all times to have," «fec. ; Holms v. Seller, 3 
 Lev. 305 ; a j^rofit a prendre by "Provided always, and it is hereby 
 covenanted, granted, and concluded," &c. ; Lord Mounfjoy's Case, 
 1 Anders. 307; S. C. Godb. 17; S. C. J. Moo. 174; sub nom. Hunt- 
 ington V. Monntjoy. See ante, p. 42, ixjst, p. 408. 
 
 On the construction of grants of right of way, see Cannon v. 
 Villars, 8 Ch. D. 415, where it is pointed out that the construc- 
 tion must depend on the nature of the road over which it is 
 granted, and the purpose for which it is intended to be used. See 
 post, 198. 
 
 On the question whether the grant of a right of way authorizes 
 the laying down of a railway, see Senhouse v. Christian, 1 T. R. 
 500; Dandy. Kingscote, 6 M. & AV. 174; Neath Canal Co. v. 
 Ynisarwed Resolven Colliery Co., L. R. 10 Ch. 450. 
 
 The grantee of a right of way cannot use it for access 
 *to a close other than that for which it was granted; [*185] 
 Henning v. Burnett, 8 Ex. 187. 
 
 As to the question whether the right of way granted is af)pur- 
 tenant or in gross, see Arkroijd v. Smith, 10 C. B. 104; Tliorpe v. 
 Brnmfdt, L. R. 8 Ch. 050. 
 
 See as to rights of way passing under general words, and as to 
 the extent of rights of way, jjost, Chapter XIII. General Wokds, 
 pp. 191, et seq. 
 
 203
 
 * 186 APPENDANT AND APPURTENANT. 
 
 [^186] * CHAPTER XIIL 
 
 GENERAL WORDS («)— ALL ESTATE CLAUSE (6). 
 
 Things legally appendant and apptirtenant — '■'■ Appurtenances''' — 
 General words, how restricted — Grant of part of tenement — 
 ^'■Continuous and apparent " easements — " Necessary " ease- 
 ments — Way of necessity granted by implication — Express 
 grant of way — Rights retained by owner granting part of 
 tenement — Reciprocal easements — Implied reservation of way 
 of necessity — Contemporaneous sales — When ivay across tene- 
 ment passes by grant of adjoining tenement — Revival of right 
 of common extinguished by unity of possession — Conveyance 
 of " estate,''^ ^'■right," or '■'■interest'" — Where a trustee has bene- 
 ficial interest. 
 
 Rule 50. — Things appendant or appurtenant pass by convey- 
 ance of principal. — That which is legally appendant or appurte- 
 nant passes by the conveyance of the principal, without the words 
 "with the appurtenances," or the like;*** Shep. Touch. 89; Co. Lit. 
 121; Whistler's Case, 10, Rep. 63a. 
 
 (a) The reader is warned against a source ot Cdnfusion. Tlie plirase "gen- 
 eral words" sometimes means the words inserted immediately after tlie par- 
 cels for the purpose of passing easements and other rights, usually enjoyed 
 with, but not legally appendant or appurtenant to, them, in conveyances 
 before 1^82, but now omitted in reliance on the C. A. 1881, s. 6: at other 
 times it means the description of a class of things by their general name, as 
 "personal estate." See ante, Rule 4(), p. 173. 
 
 (h) See as to conveyances after 1881. the C. A. 1881, s. 6.3. 
 
 ^^ It is an undoubted proposition that whatever is properly appurtenant to 
 the principal thing granted, passes with it. Giebert v. Peter, 38 Barb. (N. 
 Y.) 488; IMchardsnn v. Tohey, 121 Mass. 4.57: Norfleet v. Cromwell, 70 N. C. 
 634. It is not always easy to apply the term so as to determine in a given 
 case whether the thing under consideration is appurtenant or not. A thing 
 appendant or appurtenant is defined to be "a thing used with, and related 
 to, or dependant upon, another thing move worthy. It results therefore that 
 land can never be appurtenant to other land. Leonard r. White, 7 Mass. 6; 
 Harris r. Elliott. 10 Peters, 25: Yates v. Hathaway, 15 Johns. 447: Blaine v. 
 Chambers, 1 S. & R. (Pa.) 169: Ammidowu (;. Granite Bank, 8 Allen, 293; 
 Biddle v. Littlefield, 53 N. H. 508. But land or buildings may be so neces- 
 sary to the use and enjoyment of that which is granted, as to pass with it, 
 
 204
 
 APPENDANT AND APPrilTENANT. * 1S6 
 
 This rule is included in the maxim '^Accessorium non diicit sed 
 sequitnr suum jjriiicipale r' Co. Lit. 152a. 
 
 where they are in effect pa rccJ of tlie tiling granted, necessary to its onjoy- 
 nieut. anil intended to pass with it like otlier parts and parcel's; thousihiiii- 
 properly de.scribed in the deed as '•appurtenances." Thus a devise of a"pa per 
 mill •• together with all the niaeliiiK-ry and ai)i>urtenances tu .said imll," was 
 held to pass all the land under the mill, and necessary for the use of it as 
 parcel thereof; on the tiround that though land cannot he appurtenant to land 
 so as to pas-4 under that form of expression, yet where the intention is clearly 
 expressed that land shonld pa.ss nnder that name, the law will give elVcct to 
 the grant. Whitney v. Olney, 3 Ma.son C. C. 280; Swartz r. Swartz, 4 Pa. St. 
 oo;}; Bacon v. Bowdoin, 22 Pick. 401; John.son c. Kayner, fi Gray, ilO; Esly 
 r. Baker, 48 Me. 49."); Avon v. Mfs- Co. i: Andrews^ 'M Conn. 476; Doyle r. 
 Lord. (54 N. Y. 4.32. So with land to the centre of a highway; where the 
 land adjoining the highway is conveyed, it passes as pared and not as apimr- 
 tenant. Webber r. Eastern R. K. Co., 2 Mete. 147; Allen r. Scott, 21 Pick 
 25; Blake v. Clark, 6 Me. 436. 
 
 The word "appurtenances " has a technical .significafion. and when strictly 
 considered, is employed in cases for the purpose of including any easements 
 or servitudes used or enjoyed with the demised premises. When the term 
 is thus used, in order to constitute an ''appurtenance" there must exist a 
 propriety of relation hetween the principal or dominant subject, and the 
 accessory or adjunct, which is to be ascertained by considering "whether they 
 so agree in nature and quality as to be capable of union without incongruity. 
 Biddle r. Littleiield, oS X. H. 503. The term as used in con vevances passes 
 nothing but the land and such things as belong thereto, and aie part of the 
 realty. Ottumwa Woolen Mill Co. r. llawley, 44 Iowa. 57; Meek r. Ereclc- 
 enridge. 29 Ohio, 642. The incidents which pass as appurtenances must be 
 open and visible, and when so, luDwledge will be inferred and the appurte- 
 nances which pass in such cases are not limited to tho.se absolutely necessary 
 to the enjoyment ot the property conveyed. Simmons v. Cloonan, 81 N. Y. 
 557; Voorhees v. Burchard, 55 N. Y. 98; a devise of a grist mill "with the 
 appurtenances" will pass everything necessary for the full and free enjoy- 
 ment of the grist mill, and requisite for the support of the e'stablishmen't, 
 such as the dam, water, the race leading to the mill, a proper portion of 
 ground before the mill for the loading and unloading of horses, wagons, <S:c., 
 as used by the testator. Blaine v. Chambers, 1 8. & R. (Pa.) 169;'"whitney 
 V. Olney, 3 Mason (U. S.) 280; Gilson r. Brockawav, 8 N. H. 46.5; Wise v. 
 AVheeler, 6 Ired. (N". Car.) 196. The "appurtenances" and tlie thinsi to which 
 it is appurtenant must agree in nature and quality. Thus a seat in a church 
 may he appurtenant to a honse but not to land. Where a mill was .sold with 
 the appurtenances, a kiln occupied with the mill for many years, did not 
 pass, it appearing that the kiln was a lime kiln, having no relation to the 
 mill, thou^ih had it been shown to be a malt kiln it might pass. 3 Salk. 40. 
 
 One entire railroad will not pass liy the word "appurtenance" to another 
 railroad, any more than one tract of land would pass as appurtenant to an- 
 otlier. Phila. v. Phila. & Heading R. R. Co.. 58 Pa. St. '253. But ilats may 
 pass a.s appurtenant to a wharf, notwithstandim: the maxim that land can- 
 not pa.ss as appurtenant to land, for a wharf is not land within the construc- 
 tion of that inaxim, and the Hats are necessary for the u.se of the wharf and 
 irsually occupied with it. Doane ?•. Broad St.'.Vss., 6 Mass. :!:',2; liarkcr v. 
 Bessy, 73 Me. 472. So appurtenances to a riparian lot include an addition 
 formed by an extension of the port warden's line outward. Williams r. Baker 
 41 Md. .52:;. ' 
 
 This maxim that land cannot be appurtenant to land has .somecxception.s. 
 Thus in wills huul may pass under the term "ap))nrtenatu'es" to give etrect 
 to the intent. Otis v. Smith, 9 Pick. 203. And appurtenances nmv include 
 a yard and sidewalk of a building. McDermott r. Palmer, 8 X. Y. 383. The 
 
 205
 
 * 188 APPENDANT AND APPURTENANT, 
 
 [ * 187 ] * " The incident, accessory, appendant, and re- 
 gardant, shall in most cases pass by the grant of the 
 principal, without the words cum pertinentiis, but not 6 con- 
 verso: for the principal doth not pass by t be grant of the in- 
 cident, &c. Accessoriuvi non ducit, sed sequifiir, sitiim 2jnn- 
 cipale. And therefore by the grant of a reversion without 
 naming the rent, a reversion after an estate tail, for life, or 
 for years, and the rent reserved upon the estate, Avill pass, so as 
 the tenant attorn to the grant Lattorument is no longer nec- 
 essary]; but by the grant of the rent the reversion will not 
 pass. So by the grant of a manor, the Court Baron there- 
 unto belonging will pass, by the grant of a house, or ground, the 
 ways [and other conveniences, as garden, &c.] thereunto belong- 
 ing do pass; by the grant of arable land, the common appendant 
 thereunto will pass; by the grant of mills, the waters, flood-gates, 
 and the like that are of necessary use to the mills do pass [also 
 a stone belonging to the mill, though separated from the mill to 
 be new worke'd]; by the grant of a house, the estovers appendant 
 thereunto will pass; by the grant of a manor, the advowsons ap- 
 pendant, and the villains regardant thereunto, pass [but they 
 may be severed by exception]; by the grant of a fair, the Court 
 of Piepowders will pass; by the grant of homage, or rent, the 
 fealty will pass; and by the grant of escuage, homage and fealty 
 will pass;" Shep. Touch. 89. But see post, 212, 213. 
 
 Aiopendant and appurtenant— '' k.Y>\ien(\-Ani is any inheritance 
 belonging to another that is superior or more worthy. In law it 
 is called pert/nens, quasi invicem tenens, holding one another; a 
 word indifferent both to things appendant and things appurte- 
 nant. The quality and nature of the things do make the differ- 
 ence. Appendants are ever by prescription; but appurtenants 
 may be created in some cases at this day. As if a man at this 
 day grant to a man and his heirs common in such a moor for his 
 beasts levant or couchant upon his manor; or if he grant to another 
 common of estovers or turbary in fee simple, to be burnt or spent 
 within his manor; by these grants these commons are 
 [ * 188 J appurtenant to the manor, and shall pass * by the grant 
 thereof; " Co. Lit. 1216. See Atkijns v. Clare, 1 Vent, 
 at p. 407. 
 
 As to what can be " appendant " to another thing, see Co. Lit. 
 
 rule is th;itland will pass under this -word whenever it is essential to the 
 beneficial use and enjoyment of the property granted. Therefore a written 
 agreement for the sale and conveyance of a "bridge with the privileges and 
 appurtenances," will pass the land on which it stands. Sparks v. Hess. 15 
 Cal. lyn. Hut not other land held by the bridge company. St. Louis Bridge 
 Co. V. Curtis, 103 111. 410. Though in all the cases the exception is more 
 apparent than real, because in strictness they come under the principle stated 
 in this note before, and really pass us parcel of the thing granted, instead of 
 appurtenant to it. 
 
 206
 
 "appurtenant'" used in secondary meaning. * 189 
 
 1216, 122a; Tyrringham's Case, -4 Rep. 3G/>; Yiner Abr. s. v. 
 '• Appeudant." 
 
 As to the meaning of " appurtenances," see Plant v. James, 2 
 N. & M. 517; S. C. 5 B. & Ad. 7U1 ; S. C. in error, N. & M. 
 282; 4 A. & E. 749; Worthington v. Gimson, 2 El. & El. Oi 8; 
 Barlow v. Rhodes, 1 Cr. &, M. 439; Evans v. Angell, 20 Beav. 
 205. 
 
 Rule 51. — ''Appurtenant " secondary meaning (c). — Although 
 the word '•appurtenant" is properly used in its strict legal sense, 
 it may be used in some secondary meaning as "usually enjoyed 
 with; " Hill v. Grange, Plow. 170a. 
 
 In Hill V. Grange, Dy. 130a, S. C. 1 Plow. 164; Gennings v. 
 Lake, Cro. Car. IGS, a piece of land usually enjoyed with a mes- 
 suage passed by a lease of the messuage "with all the lands to 
 the same messuage appertaining." 
 
 A conduit (d), Broicn v. Niclwls, F. Moo. 682; Nicholas v. 
 Chamberlain, Cro. Jack. 121; a garden, Doe d. Norton v. Web- 
 ster, 12 A. & E. 442, passed by a conveyance of a house " with 
 the appurtenances." See also Archer v. Bennett, 1 Lev. 131; S. 
 C. 1 Sid. 211; 1 Keb. 736; Morris v. Edgington, 3 Taunt. 24; 
 Anon, Owen, 31; and 2 Wms. Saund. 400, note (2) (ed. 1871, 
 vol. 2, p. 806). 
 
 But a conveyance of a house "with the appurtenances" will 
 not pass an adjoining building not accounted parcel of the house, 
 though held with it for thirty years; Bryan v. Wether 
 head, Cro. Car. 17; and see Maitland v. * Mackinnon, 1 [ * 189 ] 
 H. & C. 607; Kerslake v. White, 2 Stark. 508. 
 
 " With the appurtenances " is construed more strictly in a deed 
 than in a will; 0)igley v. Chambers, 1 Bing. 483. 
 
 General words, how restricted. — "General words in a grant 
 must be restricted to that which the grantor had then" [i.e., at 
 the time of granting] "the power to grant, and will not extend 
 to anything that he may subsequently acquire;" per Mellish, L. 
 J., Booth V. Alcock, L. R. 8 Ch. 667; S. C. 42 L. J. Ch. 557. 
 
 Rule 52. — Grant of jyart of a tenement j^asses continuous and 
 
 (c) Grant bt/ deed and parol licence disihiffiii.ihed. — See per Blackburn, J., 
 in Km/ v. OxUy, L. li. 10 Q. B. at p. 3G8. as to the difference between a grant 
 by deed, and a mere parol lieence to use a way. " In the one case it would 
 have been appurtenant, in the other case it would have been enjoyed as if 
 it were apimrtenant." 
 
 id) Knt it would not have passed without the words "with the appurte- 
 nances " ? See the next rule. 
 
 207
 
 * 189 EASEMENTS OVER TENEMENT RETAINED BY GRANTOR. 
 
 apparent easements, which are necessary. — By the grant of part 
 of a teuement, all those continuous and apparent easements over 
 the part retained by the grantor, which are necessary to the en 
 joyment of the part granted, and have before and up to the time 
 of the grant been used therewith, pass to the grantee;*^ WheeJdon 
 V. Burroivs, 12 Ch. D. 31; Watson v. Troughton, 48 L. T. 508; 
 Glave V. Harding, 27 L. J. Ex. 286; Spanton \^ Hinves, 3 F. & 
 F. 52. 
 
 Observation. — ^^ Easement.''^ — The word "easement" is not 
 used in its strict sense in this rule, for when the two parts of the 
 tenement are in the same ownership, all the act-s which the owner 
 
 *^ Where the owner of two tenements sells one of them, or the owner of an 
 entire estate sells a portion, the purchaser takes the tenement or portion 
 sold with all the benefits or burdens which appear, at the time of the sale, 
 to belong to it; as between it and the property which the vendor retains. 
 This is one of the recognized modes by which an easement or servitude is 
 created. No easement exists so long as there is unity of ownership, because 
 the owner of the whole may, at any time, rearrange the qualities of the sev- 
 eral parts. But the moment a severance occurs by the sale of a part, the 
 right of the owner to redistribute the properties of the several portions 
 ceases; and easements or servitudes are created. This is not a rule for the 
 benetit of purchasers only. It is entirely reciprocal. Hence if. instead of a 
 benefit conferred, a burden has been imposed upon the portion sold, the pur- 
 chaser, provided the marks of the burden are open and visible, takes the 
 property with the servitude upon it. The parties are presumed to contract 
 with reference to the condition of the property at the time of sale: and 
 neither has a right, by altering arrangements then openly existing, to change 
 materially the value of the respective parts. Lapman v. Wilks, 21 N. Y. 
 505; JIutterineier r. Albro, 18 N. Y. 213. Some of the later cases criticise 
 this doctrine as laid down in Lapman r. Mills, holding that this liberal con- 
 struction can be only in favor of the grantee; Avhile only easements of abso- 
 lute necessity are to be implied as reserved to the grantor. P3utterworth v. 
 Crawfjrd, 46 N. Y. 349; Griffith v. Morrison, 106 N. Y. 165; Alexander v. 
 Tolleston Club, 110 111. Gb; Life Ins. Co. r. Patterson. 103 Ind. 5S2: Cave v. 
 Crafts, 53 Cal. 135; Sanderlen i'. Baxre, 76 Va. 299; Dillman r. Hoffman, 38 
 Wis. 559; Turner v. Thompson, 58 Ga. 268; U. S. r. Appleton, 1 Sumn. (U. 
 S. ) 492. 
 
 Some courts hold that in order to create an easement by implication, it 
 must be one of absolute necessity. This view was presented as follows by 
 Avery, C. J., in Burns v. Gallagher, G2 Md. 462. "No easement or quasi 
 easement can be taken as reserved by implication unless it be de facto an- 
 nexed and in use at the time of the grant, and it be shown moreover to lie 
 actually necessary to the enjoyment of the estate or parcel retained by the 
 grantor. And such necessity cannot be deemed to exist if a similar way or 
 easement may be secured by reasonable trouble or expense; and esjiecially 
 not if the necessary way or easement can be secured througli the grantor's 
 own propertv." See also Mitchell v. Seipel, 53 Md. 251; Johnson v. Jordan, 
 2 Met. (Mass.) 2.34; Randall v. McLaughlin. 10 Allen (Mass.), 366; Buss v. 
 Dver, 125 Mass. 287; Wentworth v. Philpot, 60 N. H. 193; Francis's Appeal, 
 96 Pa. St. 200; Phillips v. Phillips. 48 Pa. St. 178; Warren v Blake, 54 Me. 
 276; Denton v. Liddell, 23 N. J. Eq. 64; Thompson v. Minor, 30 Iowa, 386; 
 Pr^nidence Tool Co. v. Corliss S. E. Co., 9 R. I. 564; Lanier v. Booth, 50 
 Miss. 410. 
 
 208
 
 EASEMENTS OVER TENEMENT RETAINED BY GRANTOR. * 190 
 
 does may be referred to his ownership (see pei' Fry, J., Bolton 
 V. Bolton, 11 Ch. D. 970). In this rule the word is used to mean 
 a right which wuuid have been an easement if the several parts 
 of the tenement had belonged to diiferent owners. 
 
 Explanation. — Apparent easements. — By apparent easements 
 are meant '• not only those which must necessarily be seen, but 
 those which may be seen or known on a careful inspection by a 
 person ordinarily conversant with the subject;" Gale on Ease- 
 ments, 5th ed. p. 100, cited with approval in Pyer v. Carter, 1 
 H. & N. 922. 
 
 Explanation. — Necessary easements. — By ^^ necessary ^^ is 
 meant necessary for the enjoyment of the tenement in its exist- 
 ing state; Pyer v. Carter, 1 H. & N. 921. It has been 
 defined by Lord * Campbell (Ewart v. Cochrane, 7 Jur. [ * 190] 
 N. S. 925; S. C. 4 Macq. Sc. Ap. 117) as " necessary for 
 the convenient and comfortable enjoyment of the property as it 
 existed before the time of the grant" (i.e., before the severance). 
 For examples of easements of necessity, see Gale on Easements, 
 5th edit. ch. 2, s. 2, p. 131; Band v. Kingscote, 6 M. & W. at p. 
 196; Liford's Case, 11 Rep. at p. 52; B^Arcy v. Askivith, Hob. 
 234; Hodgson v. Field, 7 East, 613; Cardigan (Earl of) v. Ai^mi- 
 tage, 2 B. & C. at p. 207; Elliott v. N. E. Ry. Co., 10 H. L. C. 
 at p. 356 (g. v. as to conveyances of land for special purposes, as 
 to which see also S. C, 1 J. & H. at p. 153, per Wood, V.-C). 
 
 " There is a distinction between easements used from time to 
 time, such as a right of way, and easements of necessity, or con- 
 tinuous easements. The cases recognize this distinction, and it 
 is clear law that, upon a severance of tenements, easements used 
 of necessity, or (e) in their nature continuous, will pass by im- 
 plication of law without any words of grant; but with regard to 
 easements which are used from time to time only, they do not 
 pass, unless the owner, by appropriate language, shows an in- 
 tention that they should pass;" pier Erie, C. J., Polden v. Bas- 
 tard, L. R. 1 Q. B. 161; S. C. 7 B. & S, 130; 35 L. J. Q. B. 92; 
 approved by Mellish, L. J., in Watis v. Kelson. L. R. 6 Ch. at ]). 
 173; see Bayley v. G. W. Ry. Co., 26 Ch. D. 434. 
 
 Examples. — Where the drainage of a tan-yard ran into a 
 cesspool in an adjoining garden, and the owner of both properties 
 sold the tan- yard, held that the easement passed by the convey- 
 ance; Ewart V. Cochrane, 7 Jur. N. S. 925; S. C. 4 Macq. Sc. Ap. 
 117. 
 
 Where A. built a house and let it to B., and afterwards let the 
 adjoining land to C, it was held that C. could not block up the 
 windows of the house, for no person who claims the land under 
 the builder can obstruct the lights, any more than the builder 
 himself could, who cannot derogate from bis own grant; Palmer 
 
 (e) Sic; but should it not run '^^ which are in their nature, &c."? 
 14 IXTKKPUKTATIOX OK DKKDS. 209
 
 * 192 IMPLIED WAT OF NECESSITY. 
 
 [*191] V. Fletcher, 1 Lev. *122; S. G. sub nom. Palmers, 
 Fleshees, 1 Sid. 167, 227; Raym. 87; 1 Keb. 553, 625, 
 794. In the report in 1 Sid. 167 it is said that if A. lets two ad- 
 joining plots for building to B. and C, and B. builds a house, 
 and afterwards C. in digging his cellar makes B.'s house fall, 43. 
 has no action against C. The distinction between the two cases 
 is that in the first case the quasi easement had been used before 
 the severance, and therefore passed by the grant; in the latter 
 case the quasi easement had not been so used and therefore did 
 not pass. See also, to the same effect, Cox v. Matthews, 1 Vent. 
 237, 239, 248; Compton v. Richards, 1 Price, 27. 
 
 " If a man have a vacant piece of ground, and build thereupon, 
 and that house has very good lights, and he lets this house to an- 
 other, and after he builds upon a contiguous piece of ground, or 
 lets the ground contiguous to another, who builds thereupon to 
 the nuisance of the lights of the first house, the lessee of the first 
 house shall have an action upon this case against such builder,, 
 &c., for the first house was granted to him with all the easements 
 and delights then belonging to it;" per Holt, C. J., Rosewell v. 
 Pryor, 6 Mod. 116. 
 
 The owner of a field in which there was a watering place for 
 cattle supplied by a stream flowing through a place called the 
 Hopyard, purchased the Hopyard, and then sold the field in which 
 the watering place was. Held, that he could not obstruct the flow 
 of water; Sicry v. Pigot, Pop. 166; S. C, Noy. 84; Tud. L. C. B. , 
 P. (3rd ed. ) 154. See, to the same effect, Canham v. Fisk, 2 Cr. 
 & Jer. 126; S. C, 2 Tyr. 155. 
 
 Right of ivay. — A right of way is not a *' continuous and ap- 
 parent" easement within Rule 52: nevertheless 
 
 Rule 53. — Implied grant of tvay of necessity. — " "Where a man 
 having a close surrounded with his own land, grants the close to 
 another in fee, for life, or years, the grantee shall have a way to 
 the close over the grantor's land as incident to the grant" [^. e.. 
 without any express words], " for without it he cannot 
 [ * 192 ] derive any * benefit from the grant. So it is where he 
 grants the land and reserves the close to himself;"^" 1 Wms. 
 
 ^'^ If one sell land sunouuding other land belonging to hira, to which he 
 can have access only over the granted premises, he by implication reserves a 
 way over the same, even though conveyed with a covenant of warranty. The 
 way in such a case becomes a way of necessity. Bingham v. Smith, 4 Gray, 
 297; Collins ?•. Prentice, 15 Conn. 39; Pierce?;. Sellek, 18 Conn. 321; Sey- 
 mour V. Lewis. 13 N. J. Eq. 439. And where a creditor set off a front parcel 
 of the land of his debtor, and so cut off his access to his back lands, he took 
 the parcel so set off subject to the debtor's right to pass over to gain access 
 to his back lands. Pernam r. Wead, 2 Mass. 203; Bass v. Edwards, 126 Mass. 
 446. A way of necessity must be one of more than mere convenience; for if 
 the owner of the land can use another way, he cannot claim by implication 
 
 210
 
 WAT OVER TENEMENT RETAINED BY GRANTOR. * 192 
 
 Saund. 323, n. See Pinnington v. Galland, 9 Exch. 1; Tud. L. 
 C. Real P. {3rd ed. ), 177. That the grantor has the right to 
 choose the line of the way. See Bolton v. Bolton, 11 Ch. D. 
 
 Ways of convenience. — There was an inclination in Morris v. 
 Edgington, 3 Taunt. 24, to extend the principle to ways " neces- 
 sary for the most convenient enjoyment," though they may not 
 be ways of necessity properly so called. But this extension seems 
 to be opposed to the current of authority; see Gale, on Easements, 
 Ch. XL, s. 2 pp. 137, 138; Pheysey v.' Vicary, 16 M. & W. 484; 
 Dodd V. Burchell, 1 H. & C. 113; Pearson v. Spencer, 3 B. & S. 
 761; see Bayley v. G. W. Ry. Co., 26 Ch. D. 434, which seems to 
 support Morris v. Eddington. 
 
 Cesser of way of necessity. — As to cesser of the right of way 
 when the necessity ceases, see Holmes v. Goring, 2 Bing. 76; S. 
 C, 9 Moo. 166; Corporation of London v. Riggs, 13 Ch. D. 798; 
 but see Proctor v. Hodgson, 10 Exch. 824; see Bayley v. G. W. 
 Ry. Co., 26 Ch. D. 434, which seems to support Morris v. Eddington. 
 
 E.ctentof icayof necessity ivhen implied infavotirof grantor. — 
 Where the owner of a close surrounded by his own land grants 
 the land and reserves the close, he has a way of necessity to the 
 close, not for all purposes, but only so as to enable the owner of 
 the close to enjoy it in the condition it was in at the time of the 
 grant; Corporation of London v. Riggs, 13 Ch. D. 798; ^qq post, 
 200, 201. 
 
 As to a way of necessity where the grantor was a trustee of tho 
 part granted; see Hoivton v. Frearson, 8 T. R. 50. 
 
 Rule 54. — New road over adjoining tenement {f).—li the 
 (/) See observation jpos<, p. 195. 
 
 to pass over the land of another to reach his own. Parker v. Bennett, 11 
 Allen (Mass.), 388. Bnt it would be enough if it would require an unreason- 
 able amount of labor and expense to render the possible way available lor 
 use; that is, labor and expense which would be excessive and disproportionate 
 to the value of the land to be accommodated. Pettengill ri I'orter, 8 Allen 
 (Mass.), 1. A Avay of necessity cah only be raised out of land granted or re- 
 served by the grantor, and not out ol the land of a stranger. For if one 
 owns lands to which he has no access except over the lands of a stranger, he 
 has not any right to go across them for the nuri)()se of reaching his own. 
 Kimball v. Cocheco K. K. Co., 27 N. H. 448; Washb. Ease. K,2. The French 
 law is otherwise. Code Napoleon, sec. 682. If one has a way of necessity 
 over the land of another it is lost as soon as the necessity ceases; so that if 
 he afterwards, in any manner, acfjuires a new way to his ground, the first is 
 thereby extinguished. N. Y. Life Ins. Co. v. Miliior, 1 Barb. Ch. '.i'y'.^; Fierce 
 V. Sellek, 18 CV.nn. 321; Abbott v. Stewartstown. 47 N. H. 228. See also in 
 general on ways of ne<;e.ssity, Smyles v. Hastings, 22 N. Y. 217; Brown t'. 
 Binkermever, 9 Dana (Ky.),'l .')!); 'I'ingree v. McDunic, r,(i N. If. :50«; Oliver 
 t;.!Ifook, 47 Md. iiOl ; Vial r. Carpenter, 14 Cray (Mass.), 12U; Day v. AValden, 
 4() Mich. 575. 
 
 211
 
 * 193 WAY OVER TENEMENT RETAINED BY GRANTOR. 
 
 ownex- of two adjoining tenements, A. and B., makes and uses for 
 bis own convenience a way across B. to A., and then conveys A. 
 to a purchaser, "with all ways, &c., thereto appertaining, and 
 with the same now or heretofore occupied and enjoyed," the pur- 
 chaser of A. will not become entitled to the way across B. ; Bayley 
 V. G. W. By. Co., 26 Ch. D. 434.^' 
 
 " During unity of possession there is no right of way prop- 
 erly so called, because of course the owner can go 
 [ * 193 ] * over his own land whenever he pleases. . . . It is 
 obvious, therefore, that, if these words were held to 
 create a new right of way, they would give to the purchaser 
 the right of going over the adjoining property of the ven- 
 dors in every direction in which they had been accustomed 
 to go to or from the land in question, and that in a case 
 where such access is not necessary for the convenient use 
 and occupation of the piece of land so sold. This evidently 
 could not be the intention of the vendors. The question de- 
 pends upon the construction of the deed ; and it is clear 
 that these words have only a natural meaning according to the 
 circumstances of the case, and not a technical meaning extending 
 to every road which the owner may have made for his own tem- 
 porary convenience. I do not think that the words have such a 
 meanincr by themselves. I do not think that the vendors vised 
 them in that sense. I think no case exists which compels me to 
 give tbem a meaning contrary to that which in the circumstances 
 of the case they will properly bear;" pei^ Romilly, M. R., Thom- 
 son V. Waterloiv, L. R. 6 Eq. 42; (see remarks on Thomson v. 
 Waterlow, post, 197); see to the same efPect, Bolton v. Bolton, 11 
 Ch. D. 970; Langley v. Hammond, L. R. 3 Ex. 161. The I'ule 
 was applied to a deed of partition in Worthington v. Gimson, 2 
 EL & El. 618. 
 
 The rule was properly held not to apply where the owner of the 
 two tenements let one of them, and during the term gave verbal 
 permission to the tenant to use a private road for certain purposes, 
 and before the permission was revoked conveyed the property 
 comprised in the lease to the tenant " with, &c.," as in the rule. 
 It was held that the way might be used by the purchaser for those 
 purposes only for which he had been allowed to use it prior to the 
 sale; Kay v. Oxley, L. R. 10 Q. B. 360. 
 
 Exception. — Road to house. — Probably, if a man makes a road 
 for the sole use of his house over an adjoining field, and sells the 
 house without the field, the road passes.^" See Glave v. Harding, 
 27 L. J. Ex. 286, per Pollock, C. B., at 292-. 
 
 ^1 See notes to rules ."iS and 53, ante. 
 ^' See notes to rviles 52 unci 53, ante. 
 212
 
 ■VVAY OVER TENEMENT RETAINED BY GRANTOR. * 195 
 
 * In Langley v. Hammond, L. R. 3 Ex. 161, Bram- [ * 194 ] 
 ■well, B., says, "I am not prepared to say, and I do not 
 understand the Master of the Rolls to have decided, that a right 
 of way could not pass under words such as those here used, even 
 though there had always previously been unity of ownership and 
 possession, and should the case arise, I should like for time to 
 consider before I assented to the doctrine supposed to have been 
 laid down. Suppose a house to stand 100 yards from a highway, 
 and to be approached by a road running along the side of a tield 
 used for no other purpose, but only fenced off from the field, 
 which I assume to be the property of the owner of the house. I 
 should wish for time to consider before deciding that on the con- 
 veyance of the house the right to use that road, not being a way 
 of necessity, would not pass under such words as these." See 
 also the remarks of Mellish, L. J., in Wafts v. Kelson, L. R. 6 
 Ch. 172, and of Fry, J., in Barkshire v. Grubh, 18 Ch. D. 616. 
 See observation on next page. 
 
 Rule 55, — Ancient road over adjoining tenement (g). — Apart 
 from the effect of the Conveyancing Act, 1881, and subject to the 
 provisions of the Act where it applies, if the owner of two adjoining 
 tenements, A. and B. , uses a way across B. to A. which existed before 
 A. and B. belonged to the same person, and then conveys A. to 
 a purchaser, "with all ways, &c., thereto appertaining, and with 
 the same notv or heretofore used and enjoyed,''^ the right of way 
 will pass by the conveyance; but it did not pass by a convey- 
 ance, before 1882 {h), of A. " with all ways, &c., thereto apper- 
 taining." 
 
 * The Rule may perhaps be extended to the case of [ * 195 ] 
 every discontinuous easement, not being an easement 
 of necessity. 
 
 *' It has been decided over and over again that where an ease- 
 ment has become extinct by unity of ownership, and the owner 
 wishes to grant the easement with the premises to which it was 
 formerly appurtenant, he must use language to show that he in- 
 tended to create the easement de novo. If you convey the close, 
 with all ways thereto belonging and appertaining, the easement 
 will not pass, except in a case of a way of necessity, where such 
 
 {g) See observation poM, p. 19"). 
 
 (//) See the C. A. IHHl, s. H, which enact'; that "a conve.yance of huul 
 shall be deemed to include, and shall by virtue of this Act operate to con- 
 vey with the land, all . . .ways. . . .rights. . . . whatsoever ajiper- 
 taininji or reputed to appertain to the land or any part thereof, or at the 
 time of the conveyance demised, occupied, or enjoyed \vith, or reputed or 
 known as part or parcel of or appurtenant to the land oi- any part thereof." 
 
 213
 
 *.196 OBSERVATION ON RULES 54 AND 55. 
 
 a way would pass without any words of grant of ways. If in the 
 case of an easement extinguished by unity of ownership, a man 
 grants the land to which before tlie extinguishment the right 
 was attached, and uses only the words ' appertaining and be- 
 lonoring,' the right will not pass, these words not being sufficient 
 to revive the right. There are, however, apt words for the pur- 
 pose of passing such an easement; and if you will only insert the 
 words ' or therewith used and enjoyed,' the right would pass. It 
 has been said at the Bar that there is a distinction between ' be- 
 longing ' and ' appertaining; ' it is the first time that I have heard 
 of such a distinction;" per Bayley, B., Barlow v. Rhodes, 1 Cr. 
 & M. 448. See to the same effect, James v. Plant, 5 B. & Ad. 
 791; 2 Nev. and M. 517; S. C. in error, 6 Nev. & M. 282; 4 A. 
 & E. 749; Worthmgton v. Gimson, 2 EJ. & EL 618; 29 L. J. Q. 
 B. 116; and the remarks of Kelly, C. B., in Langley v. Hammond, 
 L. R. 3 Ex. 161. 
 
 Observation on Rules 54 and 55. — Observation on Rules 54 
 and 55. — Rules 54 and 55 state the law as it is usually laid down; 
 but, bearing in mind that they are merely rules of construction, 
 the object of which is to enable us to ascertain the meanings of the 
 words employed, it appears improbable that the answer 
 [ * 196 ] to the question whether a right of way over close * B. 
 passes by a conveyance of close A. can depend solely 
 upon the fact that, at a time possibly remote, before unity of pos- 
 session, the way was used, a fact which may not be in the know- 
 ledge of the parties to the conveyance. The construction to be 
 put upon the deed must depend upon the circumstances of the 
 case, the most important of which are ftrst, whether the way was 
 in fact used before unity of possession ; second, whether the way 
 over close B. is a defined road, so as to distinguish the case from 
 those in which the owner has been in the habit of passing over 
 close B. in any manner and direction in which he thought pro- 
 per; and third, whether it was used during unity of possession 
 for some purpose of convenience which does not cease on sever 
 ance. See all these points discussed in Kay v. Oxley, L. R. 10 
 Q. B. 360. 
 
 The words ''^vith, all tcays, (&c.,^'' must 7nean something. — The 
 words " with all ways, &c.," in a deed before 1882, must bear 
 some meaning; and the further question arises — What is meant 
 by them? They may mean (1) ways over the land of strangers; 
 (2) a way over close B., i. e., a close retained by the vendor, 
 which was originally enjoyed as an easement before unity of pos- 
 session; and (3) a right of way over close B. intended to be 
 created as an easement de novo; and it must depend upon tlie 
 circumstances whether all, or, if not all, which of these ways are 
 intended to pass. 
 
 It may be observed that a way from close A. over close B. used 
 214
 
 WAY OVER TENEMENT RETAINED BY GRANTOR. * 197 
 
 before unity of possossion would probably bo a defined way, as no 
 man would be likely to allow his neighbour to pass over his land 
 in any direction that he liked, and would probably be for the 
 convenience of close A. after severance, as it must have been for 
 its convenience before unity of possession, and therefore proof 
 of user before unity of possession is strong evidence that the way 
 is sufficiently defined, and that it will bo convenient after sever- 
 ance. These considerations lead to the following rule. 
 
 Rules 54 and. 55 bis. — Suggested rule, an to icays over tene- 
 ment retained by the grantor. — The question whether 
 * a conveyance by the owner of the two adjoining tene- [ * 197 ] 
 ments, A. and B., of tenement A. (either Avith or with- 
 out (pe?- Fry, L. J., 26 Ch. D. 457,) the words "with all ways, 
 &c."), passes a right of way over B. depends upon the circum- 
 stances; but the right will generally pass whether it was or was 
 not used before unity of possession; provided, first, that the way 
 is over a specific portion of the soil of tenement B. appropriated 
 by the owner as a road to tenement A. ; and secondly, that the 
 convenience of use does not cease upon the severance. 
 
 In deeds before 1882 the employment of the words " with 
 all ways, &c.," is an argument that the way was intended to pass. 
 
 See, as to the way being over a specific road, per Lush, J., Kay 
 V. Oxley, L. R. 10 Q. B. at p. 370, distinguishing Thomson v. 
 Waterloiv, post, on this ground: per Mellish, L.J., Watts v. Kel- 
 son, L. R. 6 Ch. at pp. 172, 174 (a), approving the remarks of 
 Bramwell, B., in Langley v. Hammond, L. R. 3 Ex. 161, 170; and 
 per Fry, J., in Barkshire v. Gruhb, 18 Ch. D. at p. 622, citing 
 and adopting the judgment in Watts v. Kelson, ubi sup. In 
 Thomson v. Waterlow, L. R. 6 Eq. 36; S. C, 37 L. J. Ch. 495; 
 16 "W. R. 686; 18 L. T. 545; it does not appear clearly from the 
 report in the Law Reports, whether the road was or was not a 
 " formed " road. But the reports in the Law Journal and Weekly 
 Reporter show that it was not; see 37 L. J. Ch., at p. 498, where, 
 per Romilly, M.R. : — "There was no road laid out or formed on 
 the land itself. The road, if it can be so called, was a mere track 
 of wheels across a roiigh piece of grazing land." See, as to the 
 convenience of xise not ceasing upon the severance, per Romilly, 
 M.ll., Thomson v. Waterloiv, L. R. 6 Eq. 41; and per Blackburn, 
 J., Kay V. Oxley, L. R. 10 Q. B. at pp. 366, 367, distinguishing 
 Langley v. Hammond on this ground. 
 
 (a) The rule siiKgestcd hy the author seems to be supported by Hie (;ase of 
 Bayin/ v. (l. IC. A'//. Co., 2(1 Ch. I). 434, in whieh Kay v. Oxhry, and [I'all.t v. 
 Kelson were appro vttl by the C A. 
 
 215
 
 * 199 EXPRESS GRANT OF RIGUT OF WAY. 
 
 [*198] *Rule 56. — Effect of express grant of right of 
 2vay (i) — Where there is an express grant of the un- 
 restricted user of a private right of way to a particular place, 
 the grant is not restricted to access to the land for the purposes 
 for which access would be required at the time of the grant. 
 
 The Great Eastern Railway purchased from the Crown land 
 for the purpose of their line, intersecting land acquired by the 
 Crown under an Act of Parliament which prohibited building 
 upon it, as it was within the range of the guns of a fort. At 
 the time of the purchase the land was used only for pasture. 
 The Great Eastern Railway agreed to make four level crossings 
 over their line, by which access could be had from one part of 
 the severed land to the other. Some years after the agreement 
 the part of the land beyond the crossings was sold to the United 
 Land Company, and the statutory prohibition against building 
 being removed, the land was laid out in lots for building pur- 
 poses. Held, that the level crossings might be used for purposes 
 of access to the houses so built; United Land Co. v. Great East- 
 ern Raihvaij Co., L. R. 17 Eq. 158; S. C. L. R. 10 Ch. 586. 
 
 An inclosure award made in 1760 set out certain roads for the 
 owners for the time being of certain allotments, and their ten- 
 ants and farmers to and from certain allotments. It was pro- 
 vided that one of the roads should be thirty feet wide, and that 
 if any owner of an allotment should " street out " the way it 
 should always remain eleven yards wide between the quick-sets. 
 More than a century after the award was made one of the allot- 
 ments was used as building land, and the owner began to convert 
 the cart road into a metalled road. Held, that he might use the 
 right of way for other than agricultural purposes; Neiccomen v. 
 Coulson, 5 Ch. D. 133. 
 
 By an inclosure award a road was set out as a car- 
 [ * 199 ] riage * road and drift-way from a highway to certain of 
 the inclosed lands. A railway company acquired some 
 of these lands and built a cattle-pen thereon adjoining their rail- 
 way, and used the road for the passage to and from the highway 
 of cattle that were to be or had been conveyed on their railway, 
 such user being much greater than the user at the time of the 
 grant, which was exclusively for agricultural purposes. Held, 
 that this was a lawful user on their part, and that they were not 
 restricted to the user which existed at the time of the grant; 
 Pinch V. Great Western Railway Co., 5 Ex. D. 254. 
 
 Rule 57. — No implied reservation in favour of grantor of 
 
 (i) As to the construction of an express grant of a right of way by the 
 nature of the locus in quo over which the way is granted, see Cannon v. Vil- 
 lars, 8 Ch. D. at p. 420; see also, ante, p. 184. 
 
 216
 
 NO EASEMENT IMPLIED IN FAVOUR OF GRANTOR. * 200 
 
 part of tenement. — In the absence of express stipulation, the 
 grantor of part of a tenement retains no rights of any nature 
 over the part granted; ^^ Suffield v. Broicn, 4 De G. J. & S. 194; 
 Wheeldonx. Burroics, 12 Ch. D. 31 ; Russell v. Watts, 25 Ch. D. 559. 
 
 In Pyer v. Carter, 1 H. & N. 916, it was held that, on the sale 
 of part of a tenement, there was implied in favour of the vendor 
 a reservation of an apparent and continuous reservation annexed 
 in enjoyment to the part reserved over the part sold; in fact, 
 that there is no distinction between an implied easement and an 
 implied grant. Although this decision was approved of by Hel- 
 lish and'james, L. J. J., in Watts v. Kelson, L. R. 6 Ch. 160, its 
 principle was over-ruled in White v. Bass, 7 H. &N. 722, and the 
 decision itself was strongly disapproved of by Lord AVestbury, 
 C, in Suffield v. Broicn, 4 De G' J. & S. 185, by Lord Chelms- 
 ford, C, in Crossley Sons v. Lightowler, L. R. 2 Ch. 478, and by 
 the Court of Appeals in Wheeldon v. Burroics, 12 Ch. D. 31, on 
 the ground that no man should be allowed to derogate from his 
 own°grant, and it must, it is submitted, be considered as having 
 been over-ruled, unless it can be upheld on the grounds stated by 
 Thesiger, L. J., in Wheeldon v. Burroics, 12 Ch. D. 59; see the 
 next page. 
 
 *First Exception. — Reciprocal easements implied. — [* 200] 
 Reciprocal easements may be implied in favour of both 
 parties; see per Cotton, L. J., Russell v. Watts, 25 Ch. D. at p. 572. 
 
 " We are all of opinion that, where houses have been erected 
 in common by the same owner upon a plot of ground, and there- 
 fore necessarily requiring mutual support, there is, either by a 
 presumed grant or by a presumed reservation, a right to such 
 mutual support; so that the owner who sells one of the houses, 
 as against himself grants such right, and on his own part also 
 reserves the right, and consequently the same mutual dependence 
 of one house upon its neighbours still remains;" Richards v. 
 Rose, 9 Ex. 218. 
 
 " I have already pointed to the special circumstances in Pyer 
 V. Carter, (1 H. & N. 916), and I cannot see that there is any- 
 thing unreasonable in supposing that in such a case, where the 
 defendant under his grant is to take this easement, which had 
 been enjoyed during the unity of ownership, of pouring his 
 water upon the grantor's land, lie should also be held to take it 
 subject to the reciprocal and mutual easement by which that very 
 same water was carried into the drain on that land, and then back 
 through the land of the person from whose land the water came. 
 
 ^^ Sec note to inlc ns, tmti.. 
 
 217
 
 * 201 WAY OF NECESSITY IN FAVOUR OF GRANTOR. 
 
 It seems to me to be consistent with reason and common sense 
 that these reciprocal easements, should be implied; and although 
 it is not necessary to decide the point, it seems to me worthy of 
 consideration in any after case, if the question whether Pyer v. 
 Carter is right or wrong comes for discussion, to consider that 
 point; " per Thesiger, L. J., Wheeldon v. Burroics, 12 Ch. D. 59. 
 
 Second Exception. — implied reservation of \oay of necessity 
 to grantor. — There is an implied reservation in favour of the 
 grantor of ways of necessity over the part granted;"* see per 
 Cotton, L. J., Russell v. Watts, 25 Ch. D. at p. 573. 
 
 [ * 201 ] * " Where a man having a close surrounded by his 
 own land, grants the close to another in fee, for life, or 
 years, the grantee shall have a right of way to the close over the 
 grantor's land as incident to the grant; for without it he cannot 
 derive any benefit from the grant. So it is where he grants the 
 lands and reserves the close to himself ; " Pomfret v. Ricroft, 1 
 Wms. Saund. 323 (ed. 1871, p. 568), note 6, citing Clarke v. 
 Cogge, Cro. Jac. 170; Jorden v. Ativood, Owen, 121; Staple v. 
 Haydon, 6 Mod. 1; Hoivtonv. Pearson, 8 T. K. 50. This note is 
 cited with approval by Martin, B., in the judgment of the Court 
 in Pinnington v. Garland, 9 Ex. 1, where he adds : — "It no 
 doubt seems extraordinary that a man should have a right which 
 certainly derogates from his own grant; but the law is distinctly 
 laid down to be so, and probably for the reason given in Dulton 
 V. Taylor (2 Lutw. 1187), that it was for the public good, as other- 
 wise the close surrounded woiild not be capable of cxiltivation." 
 See also Wheeldonv. Burrows, 12 Ch. D. 31. 
 
 Extent of ivay of necessity. — In The Corporation of London v. 
 Riggs, 1 3 Ch. P. 798, the question arose what was the extent of a 
 way of necessity reserved by a grantor. It was held by Jessel, 
 M.R., citing Gay ford v. Moffatt, L. R. Ch. 133, that the right of 
 way must be limited to that which is necessary at the time of the 
 grant; that is, the owner must be supposed to take a regrant to 
 himself of such a right of way as would enable him to use the 
 reserved thing as it was at the time of the grant. His Lordship 
 says ( at p. 807 ), '.' That appears to me to be the meaning of a right 
 of way of necessity. If you imply more, you reserve to him not 
 only that which enables him to enjoy the thing he has reserved 
 as it is, but that which enables him to enjoy it in the same way 
 and to the same extent as if he had reserved a general right of 
 way for all purposes : that is — as in the case I have before me — 
 a man who reserves two acres of arable land in the middle of a 
 large piece of land is to be entitled to cover the reserved land 
 with houses, and call on his grantee to allow him to make a wide 
 
 ^ See ways of necessity discussed in note to rule 53, ante. 
 
 218
 
 SIMULTANEOUS SALE OF DIFFERENT LOTS. * 203 
 
 metalled road up to it. I do not thiuk that is a fair 
 meaning of a way * of necessity; I think it must bf [ * 202 ] 
 limited by the necessity at the time of the grant; and 
 that the man who does not take the pains to secure an actual 
 grant of a right of way for all purposes is not entitled to be put 
 in a better position than to be able to enjoy that which he had at 
 the time the grant was made. I am not aware of any other prin- 
 ciple on which this case can be decided. I may be met by the ob- 
 jection that a way of necessity must mean something more than 
 what I have stated, because, where the grant is of the enclosed piece, 
 the grantee is en^^itled to use the land for all purposes, and should 
 therefore be entitled to a right of way commensurate with his 
 right of enjoyment. But there again the grantee has not taken 
 from the grantor any express grant of a right of way; and all he 
 can be entitled to ask is a right to enable him to enjoy the prop- 
 erty granted to him as it was granted to him. It does not appear 
 to me that the grant of the property gives any greater right. 
 But even if it did, the principle applicable to the grantee is not 
 quite the same as the principle applicable to the grantor; and 
 it might be that the grantee obtains a larger way of necessity — 
 though I do not think he does — than the grantor does under the 
 implied regrant." 
 
 That the grantor has the right to select the way reserved, see 
 per Fry, J., Bolton v. Bolton, 11 Ch. D., at p. 972. 
 
 Rule 58. — Contemporaneous sales. — Where two properties be- 
 longing to the same owner are sold at the same time, and each 
 purchaser has notice of the sale to the other, the right to any 
 continuous and apparent quasi-easement in respect of either 
 property is the same as if it had been conveyed first; Compton 
 V. Richards, 1 Pri. 27; Swansborough v. Coventry, 9 Bing. 305; 
 Allen V. Taylor, 16 Ch. D. 355; see per Jessel, M.R., Rigby v. 
 Bennett, 21 Ch. D. at p. 567; and per Cotton, IjJ., Russell \. Watts, 
 25 Ch. D. 573; and per Fry, L. J., ib. 584. See Ewart v. Belfast 
 Guardians, 9 L. R. Ir. 172, on app. from 5 L. R. Ir. 536. 
 
 It will be observed that this rule is, strictly * speak- [ * 203 ] 
 ing, not a question arising on the construction of 
 the deeds, but an application of the rule of equity, that the 
 purchaser of property takes it subject to all equitable interests of 
 which he has notice. 
 
 This rule does not extend to the case whore two properties are 
 put up for sale at the same auction, and only one is sold, and the 
 oth(M- is shortly afterwards sold; Wheeldon v. Burrows, 12 CAi. 
 D. 31. 
 
 Ou the same principle it has been held that on the sale of land 
 
 219
 
 * 204 . RIGHTS OF COMMON. 
 
 to a purchaser, who had notice that adjoining land belonging to 
 the vendor was to be laid out for building in a manner which 
 would make a way over the purchased land necessary to the ven- 
 dor, such right of way was reserved to the vendor by implication; 
 Davies v. Sear, L. E. 7 Eq. 427. 
 
 Rule 59. — Revivor of common appurtenant. — If the owner of 
 land subject to a right of common acquired the tenement to which 
 the common was appui'tenant, and afterwards conveyed it to a pur- 
 chaser before 1882 {k) the old right of common was revived and 
 passed if the conveyance comprised all '' commons, &c., therewith 
 heretofore used and enjoyed;" but a conveyance of "all commons, 
 (fee, thereto appurtenant" was not sufficient.^" 
 
 Cases where the word "appertaining" alone was used, 
 and where consequently the common did not pass.— Sawnde^s 
 V. Oliff, Moor. 467; Marsham v. Hunter, Cro. Jac. 253; S. C., 
 Yelv. 189; Clements v. Lambert, 1 Taunt. 205. 
 
 Cases where the words "used or enjoyed therewith" 
 were used, and where therefore the common was held to be 
 revived. — Bradsliaw V. Eyre, Cro. Eliz. 570; Worledge 
 [ *204] V. Kingswel, Cro. Eliz. 794; S. C, 2 *And. 168; Grymes 
 V. Peacocke, Bulstr. 17; but it is not revived if it is not 
 used at the date of the conveyance; Hall v. Byron, 4 Ch. D. 667; 
 where the words " or heretofore, &c." did not occur and the tene- 
 ment at the time of the purchase and conveyance had no right of 
 common appendant or appurtenant. 
 
 The rule does not apply to the case of a copyhold which vests 
 in the lord by forfeiture, and is re-granted by him as a copyhold; 
 Badger v. Ford, 3 B. & Al. 153; but it applies to the case of the 
 copyholder purchasing the fee; Marsham v. Hunter, Cro. Jac. 253; 
 S. C, Yelv. 183; Fort v. Ward, Moor. 667. But the right though 
 extinguished at law may be preserved in equity; Styanty. Staker, 
 2 Vern. 250. Where rights of common belonged to a farm, and 
 on an enclosure of the common under 8 & 9 Yict. c. 118, the rights 
 of common were extinguished and allotments made to the owner 
 
 {h) See the C. A. 1881, s. 6. See note unle, p. 19-1. 
 
 ^* Eights of common are little known or used in this country, and probably 
 do pot exist in any of the northern or western parts of the United States 
 which have been settled since the revolution, o Kent. Comm. 404. The 
 only instances of such litigation concerning such rights in the United States 
 are to be found in Pennsylvania. (Western University v. Robinson, 12 S. & 
 E. 3.'5; Carr v. Wallace, 7 Watts, 394.) And in New York, in some parts of 
 which they were known and enjoyed in early years, and were frequently 
 litigated. 3 Kent. Comm. 404, 40.5. At the present day rights of common 
 in the English sense may be said to be unknown in the United States. 3 
 Washb. Eeal Prop. 284: .5th edition. 
 
 220
 
 ALL ESTATE CLAUSE. * 205 
 
 of the farm in respect of them: held, that a subseqiaent lease of 
 the farm with the usual general words did not pass the allot- 
 ment; Williams v. Phillij^s, 8 Q. B. D. .437. 
 
 All Estate Clause. 
 
 Rule 60. — Conveyance of all a man^s estate and interest for 
 value {I). — Where a party conveys all his estate or right, or titlo, 
 or interest in property to purchaser for value, every interest vested 
 in him will pass by the conveyance, although not vested in him 
 in the character in which he is made a party."*^ 
 
 "£sfa/e." — "*S?afe" or '^estate''' signilieth such inheritance, 
 freehold, term of years, tenancy by statute merchant, staple, elegit, 
 or the like, as any man hath in lands or tenements, &c. And by 
 the grant of his estate, &c., as much as he can grant shall pass. 
 Tenant for life, the i-emainder in tail, the remainder to the right 
 heirs of tenant for life, tenant for life doth grant totum statum 
 suum to a man and his heirs, both estates do pass. ''Right." — 
 "Right," Jus sive rectum (which Littleton often useth) signilieth 
 properly, and specially in writs and pleadings, when an estate is 
 turned to a right, as by discontinuance, disseisin, &e., where it 
 shall be said quod jus discendit et nan terra But "right" doth 
 also include the estate in esse in conveyances: and therefore if 
 tenant in fee simple make a lease for years, and release all his right 
 in the land to the lessee and his heirs, the whole estate in fee simple 
 passeth. And so commonly in fines, the right of the 
 * land includeth and passeth the estate of the land; as A. [ * 205 J 
 cognovit tenementa prcedicta esse jus ipsius, B., &c. And 
 the statute (West. 2, c. 3) saith jus suum defendere, which is 
 statum suum. And note that there is jus recuperandi, jus in - 
 trandi, jus habendi, jus retinendi, jus percipiendi, jus possidendi. 
 " Title.'" — Title, properly (as some say) is when a man hath a 
 lawful cause of entry into lands whereof another is seised, for the 
 which he can have no action, as title of condition, title of mort- 
 main, &c. But legally this word " title," includeth a right also 
 as you shall perceive in many places in Littleton; and title is the 
 more general word; for every right is a title, but every title is not 
 such a rifht for which an action lieth; and therefore titulus est 
 
 (I) See as to conveyances after 1881 the C. A. 1881, s. 63. 
 
 ^ A conveyance "of all the right, title and interest" of the grantor in the 
 estate of liis deceased ancestor covers an undivided interest in tlie hind to 
 which, at the time of the conveyance, it was generally Jjelieved the ancestor 
 had no title, but which snbse(|nently is adjudged lo belong to his estate. 
 Watson ;;. Priest, 9 Mo. .\l)p. 'H>'^. Where in the gninling clause of a deed 
 the grantor quit claimed all liis right, title and interest in the land, and in a 
 subsc(|Ufnt clau.se he expressed an intention to convey only that acquired by 
 a certain deed, which was an undivided half, it Avas held that the whole in- 
 terest passed. Green Bay & Mississippi Canal Co. v. Hewitt, oo Wis. 9(i. 
 
 221
 
 * 206 ALL ESTATE CLAUSB. 
 
 justa causa possidendi quod nostrtim est, and signifiefch the means 
 whereby a man cometh to land, as his title is by fine or by feoff- 
 ment, &c. And when tha plaintiff in assize maketh himself a title, 
 the tenant may say veniat assisa super titulum: which is as much 
 as to say, upon the title which the plaintiff hath made by that 
 particular conveyance. Et dicitur titulus a tuendo, because by 
 it he holdeth and defendeth his land; and as by a release of a 
 right a title is released, so by release of a title a right is released 
 also. '■'■ InteresV — Interest:'^ Interesse is vulgarly taken for a 
 term or chattel real, and more particularly for a future term; in 
 which case it is said in pleading, that he is possessed de interesse 
 termini. But ex vi termini, in legal understanding, it extendeth 
 to estates, rights, and titles, that' a man hath of, in, to, or out of 
 lands; for he is truly said to have an interest in them; and by the 
 grant of totum interesse suuni in such lands, as well reversions as 
 possessions in fee simple shall pass. And all these words singu- 
 larly spoken are nomina collectiva; for by the grant of totum 
 statum simm in lands all his estates therein pass. " Et sic de 
 coeteris;^^ Co. Lit. 345a. See slso Altham's Case, 8 Rep. 150t». 
 
 " If a man be seised of land in fee simple, or for life, or have 
 
 an estate in it for years, by statute merchant, a staple, 
 
 [ * 206 ] elegit or the like; and he grant all his estate, or * all his 
 
 right, or all his title, or all his interest of and in the land; 
 
 by this grant all his estate, and as much as he is able to grant, 
 
 doth pass;" Shep. Touch. 98. 
 
 " This is clear, that when a person having several estates and 
 interests in a denomination of land, joins in conveying all his 
 estate and interest in the lands to a purchaser, every estate or in- 
 terest vested in him will pass by that conveyance, although not 
 vested in him in the character in which he became a party to the 
 conveyance. It is true that in Fausset v. Carpenter (2 Dow. & 
 CI. 232; S. C, 5 Bl. N. R. 75) the House of Lords took a differ 
 ent view. At the time when that case was decided, it was thought 
 impossible to maintain the decision, and it was a subject of con- 
 sideration among the profession whether it would not be advisable 
 to bring in a short Act of Parliament to reverse it. That case 
 cannot operate to weaken the rule of law. Nothing could be more 
 mischievous or contrary to law than to hold that when a party 
 professes to convey all his estate and interest in particular lands, 
 the operation of his conveyance should be limited to the estate 
 which was vested in him in the character in which he purported 
 to join in the conveyance;" per Lord St. Leonards, C, Dreiu v. 
 Earl of Norbury, 3 J. & L. 284; S. C, 9 Ir. Eq. Rep. 71, 524. 
 
 ^^PrimCi facie, when a person conveys or settles an estate, he 
 means to include in the conveyance every interest which he can 
 part with and which he does not except. General words apt for 
 that purpose are invariably used;" per Lord Cranworth, C, John- 
 son v. Webster, 4 De G. M. & G. 488. 
 222
 
 ALL ESTATF CLAUSR. ♦ 208 
 
 Exception. — Trustee having also a beneficial interest. — Where 
 a person bas some beneficial interest in property vested in him as 
 trustee, it may appear from the whole deed that what he intends 
 to convey is only the interest vested in him as trustee, or only his 
 beneficial interest, as the case may be. 
 
 *A widow, entitled under her marriage settlement and [ * 207] 
 otherwise to charges on her husband's estate, was one 
 of the trustees of his will, whereby the estates were devised 'in 
 trust to raise 2000/. for her benefit, and subject thereto, in trust 
 to convey the estates as H. should appoint. H. borrowed money 
 on a mortgage of one of the estates, in which the widow and her 
 CO trustee joined, and whereby, after reciting the will and the 
 agreement for the loan, and that H. had required the widow and 
 her CO- trustee "^as such devisees in trust as aforesaid, to make such 
 conveyance as is hereinafter contained," the widow and her co- 
 trustee " as such devisees as aforesaid " granted the parcels with 
 an estate clause. Held, that the deed did not pass the beneficial 
 interest of the widow; Stronge v. Haivkes, 4 De G. M. & G. 186. 
 
 "Several cases were cited to show (what it hardly needed au- 
 thority to show), that when a person assigns and conveys 'all his 
 estate, right, title, and interest,' and all his estate, right, title, 
 and interest are not recited in the deed, still if he has other bene- 
 ficial interests in the property, they pass. . . . It is well known 
 law that estates vested in a person in autre droit are so different 
 from estates vested in him in his own right . . , that an assign- 
 ment by a person of all his goods and chattels will not pass those 
 he holds as executor, unless he have none of his own; in which 
 case, from the necessity of the thing, they are held to pass; the 
 ground of that doctrine being that the two things are so clearly 
 distinct in the party, that the intention, when he speaks of his 
 own simpliciter, is not to pass anything which he holds in autre 
 droit. But hero all the conveying parties are described as execu- 
 tors, and are all, as such, made parties of the one part, and, as a 
 body, convey the whole estate vested in them in the capacity in 
 which they are so made parties. , . . If I had to determine it, I 
 should not think myself justified in holding that a conveyance by 
 persons described as executors, and assigning the estate they held 
 qua executors for the 600 years' term, would pass by 
 force of the words ' and all the estate, right, title, *and [ * 208] 
 interest,' that which one of them held for his own pur- 
 poses and in his own right;" per Wood, V.-C, Rooperv. Harrison, 
 2K. & J. 112. 
 
 Helease by a legatee of his legacies and all actions, &c., did not 
 extend to actions, &c., that he had in his capacity of executor; 
 Knight v. Cole, Garth. 118. 
 
 Fuusset v. jJarpenter. — The case of Faiisset v. Carpenter, (2 
 
 223
 
 * 209 ALL ESTATE CLAUSE, 
 
 Dow & CI. 232; S. C. 5 Bli. N. R. 75), stated fully by Lord St. 
 Leonards, Law of Property, 76, can hardly be considered as con- 
 trary to this exception. There the property had become as to 
 the beneficial interest divided into thirds; the owner of one share 
 was the trustee in whom the legal estate in another share was 
 vested in trust for a married woman and her husband successively 
 for life, with remainder in trust for their children. A conveyance 
 for value was made to a purchaser without any nqtice of the trusts 
 on the conveyance or otherwise, the trustee conveying with an 
 estate clause. It was held by the House of Lords that the legal 
 estate vested in him as trustee did not pass, on the ground that 
 he had two estates, one of which he might innocently and pro- 
 perly convey, and the other of which he could not convey with- 
 out fraud and a breach of trust, and that it could not be presumed 
 that he would intend the latter. The case has been so strongly 
 disapproved of by Lord St. Leonards (Law of Property, 76; 
 Drew V. Earl of Norbury, 3 J. & L. 284), and by Lord Hatherly 
 {Carter v. Carter, 3 K. & J. 635), that it cannot be considered as 
 bearino- very high authority. It is submitted that the decision 
 in Fausset v. Carpenter, is erroneous as ofPending against Rule 
 I., p. 1, for it will be remembered that the fact of the conveyance 
 by the trustee being a breach of trust, did not appear on the face 
 of the conveyance, it was necessary to look out of the deed in 
 order to ascertain this; in other words, the breach of trust was 
 one of " the surrounding circumstances " which can only be looked 
 at for the purpose of ascertaining the meanings of the words em- 
 ployed, not for the purpose of ascertaining what intentions the 
 writer had. 
 
 In Lewin on Trusts, 6th edit, 198, it is said: — "In 
 [ * 209 ] * dealings with the trust estate the Court has regard to 
 the trust, and will not construe general words to pass the 
 trust estate, where the assurance, if so construed, would amount 
 to a breach of trust," and he cites Fausset v. Carjjenter. Mr. 
 Lewin's proposition appears to be laid down too widely, and ought 
 to be restricted to cases where the conveyance of the estate would 
 on the face of the assurance, amount to a breach of trust. It is 
 submitted that the true rule as to trust estates is that laid down 
 in the exception given above to Rule 60. 
 
 Other Exceptions. 
 
 Land Tax. — Tithes. — Redeemed land tax that has not been 
 merged {Blundel v. Stanley, 13 Jur. 998; S. C. 18 L. J. (Ch.) 
 300; Neame v. Moorsom, L. R. 3 Eq. 91); and tithes {Chapman 
 V. Gafcombe, 2 Bing. N. C. 516; 2 Scott, 738), do not pass by the 
 estate clause; Right of entry. — Nor does a right of entry on a 
 lessee for condition broken; Himt v. Bishop, 8 Ex. 675; Hunt v. 
 Remnant, 9 Ex. 635. 
 224
 
 ALL ESTATE CLAUSE. * 209 
 
 Release. — Where a release extends to all a man's estate and in- 
 terest, it will be controlled by the recitals; ante, p. 187. 
 
 In Francis v. Minton, L. R. 2 C. P. 543, A., being owner in fee 
 of one moiety of a messuage and lessee of the other moiety sub- 
 ject to a covenant not to assign without licence, granted to B. in 
 fee by way of mortgage, all the messuage '• and all the estate, 
 &c.." of A. in the messuage. Held, that only his fee simple 
 moiety passed. But the decision was based on "the facts and 
 the frame of the deed" (per Bovill, C. J., at p. 550), and espe- 
 cially the existence of the covenant against assignment. See 
 ante, p. ITS. And by a disentailing deed only those estates were 
 held to pass with which the deed professed specifically to deal, 
 Grattan v. Langdale, 11 L. R. (Ir.) 473 (at p. 488). 
 ■ • A. being entitled to the entirety of property for life, with re- 
 mainder as it was believed as to one moiety to B. in fee, A. and 
 B. convey by way of mortgage "All that undivided moiety of 
 B.," and "All the estate, &c., of A. and B." It tuiDpd out that 
 B.'s reversionary interest was in one-fifth only. Held, that A.'s 
 life interest in one-iifth only passed; Grieveso)i v. Kirsopp, 5 
 Beav. 283. 
 
 15 INTEEPEETATION OF DEEDS. 225
 
 * 211 PARCELS OMITTED FROM HABENDUM. 
 
 [*210] * CHAPTER XIV (a). 
 
 HABENDUM (6). 
 
 Office of premises and habendum explained — Things granted 
 named in premises only, — named in habendum only — iVb 
 habendum — Grantee named in habendnm only — Gh-ant to 
 A., habendum to A. and others — No express estate limited in 
 premises — No express estate limited' in habendum— Express 
 estates limited both in premises and habendum. 
 
 Premises and habendum distinguished. — " The premises of a 
 deed are all the foreparts of the deed before the habendum. . . 
 And the office of this part of the deed is rightly to name the 
 grantor and grantee, and to comprehend the certainty of the 
 thing granted. . .- . And herein is sometimes (though impro- 
 perly) set down the estate. . . . The habendum of a deed . . . 
 doth properly succeed the premises. And the office hereof is to 
 set down again the name of the grantee, the estate that is to be 
 made and limited, or the time that the grantee shall have in the 
 thing granted or demised, and to what use . . . and herein also 
 is sometimes, though needlessly, set down again the thing 
 granted." . . . But " an estate may be made by a deed without 
 any habendum at all;" Shep. Touch. 74, 75; Co. Lit. 6a. 
 
 "The office of the habendum is to limit the estate;" Biickler^s 
 Case, 2 Rep. 556, and accordingly a proviso in a lease to three as 
 joint tenants for life, " that the second shall not occupy during 
 the life of the first, nor the third during the life of the 
 [* 211 ] second," was held to be a mere * collateral covenant, not 
 altering the estate limited by the habendum; Scovel v. 
 Cabel, Cro. El. 89, 107; S. C. Scovell ami CaveVs Case, 1 Leon. 
 317. See also on the habendum, Throckmerton v. Tracy, 1 Plow. 
 145; Com. Dig. Fait. E. (9) and (10): 1 Dav. Free. (4th ed.) 99; 
 Co. Lit. 21a, 266, 183a, 1906, 299a, 3786; and see as to controll- 
 ing joint estate, post, 219. 
 
 In a deed we sometimes find that (1), the thing granted is 
 
 (a) See some cases on the habendum in leases, ante, Chapter VII., pp. 90, 
 92. 95; Chapter IX., pp. 123, 124. 
 
 (6) See Challis on Real Property, Ch. XXX., pp. 333, seq. 
 
 226
 
 PARCELS OMITTED FROM IlABENDrM. * 211 
 
 luontioned in the premises or tlie habendum only; or (2), the 
 habendum is omitted; or (3), the name of the grantee is omitted 
 from the premises; or (4), different persons are named as grant- 
 ees in the pi^mises and the habendum respectively; or (5), a 
 special estate having been limited in the premises, a different es- 
 tate is limited in the habendum. 
 
 Rule 61. — Omissio)i of parcels from habendum. — The omission 
 from the habendum of the thing granted will not prevent it from 
 passing." 
 
 This rule has reference only to the question as to what parcels 
 pass by the deed, not to the further question as to what estate 
 the grantee takes in them. In cases within the rule, all the par- 
 cels mentioned in the premises pass, but the operation of the 
 habendum in limiting the estate is confined to those parcels only 
 which are again mentioned in it. E.g., grant to A. of Blackacre 
 and Whiteacre, habendum, Blackacre to A. and his heirs; here 
 Whiteacre passes as well as Blackacre. A takes an estate for life 
 in "Whiteacre by the grant in the premises, and he takes an estate 
 
 ^' The habAdum was originally used to determine the interest granted, 
 or to lessen, enlarge, explain or qualify, the premises. It is not an essential 
 .part of the deed, and Chancellor Kent declares that it has degenerated into 
 a mere useless form. 4 Kent Comm. 4G8. Although the words of limitation 
 usually appear in the habendum as an independent clause of the deed, it is 
 not necessary that they should, and if the granting part of the deed contains 
 proper words of limitation the habendum maybe dispensed with altogether. 
 3 Washb. Keal Prop. 436; Kenworthy r. tullis, 3 Ind. 96. And if the 
 habendum is hopelessly repugnant to the limitations appearing in the 
 premises, it will be disregarded. Flagg v. Eames, 40 Vt. 23; Thompson 
 V. Carl, 51 Vt. 408; Nightingale v. Hidden, 7 R. I. 118; Tyler r. Moore, 42 
 Pa. St. 376; Walters t\ Breden, 70 Pa. St. 237; Robinson i-. Payne, 58 Miss. 
 eSo. But where the grant is indefinite from its generality in respect to 
 the estate in the lands conveyed which it is intended to create in the 
 grantee, the habendum serves to define it. 4 Kent Comm. 468; Berry v. 
 Billings, 44 Me. 423. Thus a lease of land to one, hahcnditm to him and" his 
 heirs, conveys a fee. Jamaica Pond v. Chandler. Allen. 168. If the limit- 
 ation in the premises is general, and in the hal)endum is specific, as for 
 example, tlie limitation in one part is to A. and his heirs generally, and 
 in the other part the limitation is to A. and the heirs of his body, the tAvo 
 descriptions are not necessarily contradictory; and the sjiecific limitation 
 will prevail over the general liniitation. Berry r. Billings, 44 Me. 423; 
 Sumner v. Williams, 8 Mass. 162; Ford r. Flint. 40 Vt. 382: Manning 
 r. Smith, 6 Conn. 292; Moss v. Shelden, 3 Watts <& S. (Pa.) 162; Walters v. 
 Breden, 70 Pa. St. 237; Nightingale v. Hidden, 7 R. I. 118. Tlie habendum 
 may be resorted to for the purpose of exjilaining and qualifying the natural 
 meaning of the premi.ses. Blair v. OslK)rne, 84 N. C. 417; Carson r. McCas- 
 lin, 60 Ind. 334. So also if the ])remises fail to give Ihe name of the grantee, 
 it may Ite supplied by tlic habendum. ,3 Waslib. Ivcal Pro]>. .366; Tiedman 
 Real Prop. sec. 344. The habendum clau.se usually contains tlie (U^claration 
 of the uses and trusts su})ject to which the grantee is to hold the estate; but 
 these declarations may appear in any otlier part of the deed and be equally 
 eflTectivc. Nightingale v. Hidden, 7 R. I. 118. 
 
 227
 
 * 212 PARCELS OMITTED FROM THE PREMISESo 
 
 in fee in Blackacre owing to the express limitation in the haben- 
 dum. 
 
 In Carew's Case, F. Moore, 222, " Manwood, C. B., said that 
 where there were in one deed several things granted, and then 
 comes the habendum to limit the estate, if the haheiidum recites 
 all those things by particular reference [Qy. ' arrear particular- 
 me}if], it does something which is not its office and is superfluous, 
 and therefore all that recital shall be of no effect^ but the haben- 
 dum shall be construed as if there had been no such recital, nor 
 anything beyond ' habendum et tenendum,'' but where 
 [ * 212 ] a *deed or demise contains several limitations of estate, 
 e.g., one of certain parcels of the premises for twenty 
 years, and another of other parcels for ten years, or for life, there 
 the certainty of the different habendums is to be regarded, but 
 not so where there is but one habendum.'''' 
 
 See the annotation of Lord Hale given in Co. Lit. 266, note 4; 
 see also Dal. 57, pi. 3. 
 
 " If the thing granted be left out in all, or in part in the haben- 
 dum, yet the grant is good by force of the premises. And there- 
 fore if one grant land to A., habendum (without naming the land), 
 to A. and his heirs, &c., or if one grant Whiteacre and Blackacre 
 to A., habendum, Whiteacre to A. and omit Blackaqj-e; yet these 
 deeds are good, and all that is contained in the premises of the 
 deed doth pass in both cases;" Shep. Touch. 76. 
 
 Rule 62. — Omission of parcels from premises. — If the thing 
 granted be named in the habendum only, and not in the premises, 
 it will not pass.^^ See 3 Preston, Abst. 40. 
 
 This rule is laid down in Shep. Touch. 75, on which Mr. Pres- 
 ton says: "Probably this proposition is too general." Shep. Touch. 
 I.e. continues, "And therefore if a man grant Blackacre only in the 
 premises of a deed, habendum Blackacre and Whiteacre, White- 
 acre will not pass by this deed." This passage is cited with ap- 
 proval in 1 Dav. Prec. 4th edit. 101. 
 
 " The King being seised of a manor in fee to which an advow- 
 son was appendant, granted the same manor to two for their 
 lives, and afterwards the King reciting the grant for life, granted 
 that the said manor, after their deaths, should remain to two 
 bishops, habendum et tenendum omnia prcedicta terras et tene- 
 menta, una cum advocatione ecclesice prcedictK, <&c., and it was held 
 by all the Justices that by the lease of the manor the' advowson 
 did not pass, because nothing was spoken of it in the grant, but 
 it remained in the King as in gross, and not appendant in right 
 nor in possession; and it was also held that the advowson should 
 
 ^^ See note to rule 61. 
 
 228
 
 NO HABENDUM OR NO GRANTEE-. * 214 
 
 not pass to the bishops, because nothing was spoken of 
 *the advowson in the grant, but in the habendum, and [ *213 J 
 that nothing shall pass in the habendum if it be not 
 spoken of in the grant, except it be a thing appendant or appur- 
 tenant;" Rex V. Abbess of Sion, 38 H. G, 33 B. ; see ante 187; 
 cited 1 Plowd. 152. See other cases to the same efiect, Viner, 
 ''Grants,'' I. a. pi. 5. 
 
 Observation. — Of course the rule does not apply where the 
 thing newly mentioned in the habendum is impliedly mentioned 
 in the premises. 
 
 "If one grant a manor, habendum the manor with the advow- 
 son appendant to the manor, or if one grant a reversion of land, 
 by the name of a reversion in the premises, habendum the land 
 itself {Throckmertonw. Tracy, 1 Plow. 145; S. C. Dyer, 1236. pi. 
 40); in both these cases the deed is good, and the advowson and 
 reversion will pass, for they were in effect and in point of law 
 included in the former description;" Shep. Touch. 76. 
 
 Conveyance of land, with the right to use a wall, to A., subse- 
 quent conveyance of the land, habendum " with the appurte- 
 nances : " held, that the right to use the wall passed; Benwich v. 
 Dahj, Ir. R. 11 C. L. 126. 
 
 Rule 63. — No habendum or no grantee mentioned in the prem- 
 ises. — If there is no habendum, the grantee takes the estate lim- 
 ited in the premises, and if no person is mentioned as grantee in 
 the premises, the person mentioned as grantee in the habendum 
 takes the estate limited by the habendum. See 8 Preston Abst. 
 41.^^ 
 
 Where no habendum. — " If an estate and interest is mentioned 
 in the premises, the intention of the parties is shown, and the 
 deed may be effectual without au habendum;" per Abbott, C J., 
 Goodtitle d. Dodwell v. Gil)bs, 5 B. & C. 717; S. C. 8 D. & By. 502; 
 see also Kerr v. Kerr, 4 Ir. Ch. R. 493, 497. 
 
 "An estate may be made by a deed without any habendum at 
 all. As if one give or grant land to another and his 
 heirs, without any more words in the deed, or if *one [ *214] 
 give or grant land to another and limit no estate, with- 
 out any habendum in the deed, and seal and deliver this deed, 
 and make livery accordingly; in both these cases the deed is 
 good, and in the first case an estate in fee simple is made, and in 
 the last case an estate for life is made. Grantee mentioned in 
 habendum only. — And if the name of the grantee be not con- 
 
 ^^ See note to rule 61. 
 
 229
 
 * 215 GRANTEE MENTIONED IN HABENDUM ONLY. 
 
 tained in the premises, yet if it be in the habendum, it may be 
 good enough. As if one give or grant land habendum to B. and 
 his heirs, and he is not named in the premises, yet this is a good 
 deed to make an estate in fee simple; " Shep. Touch. 75. 
 
 " If A. give lands to have and to hold to B. and his heirs, 
 this is good, albeit the feoffee is not named in the premises; " 
 Co. Lit. la; see Eeles\. Lambert, Al. 38, and Butler v. Dodton, 
 Cary, Rep. in Ch. 123. 
 
 In Spyve v. Topham, 3 East, 115, the Court of King's Bench 
 first rejected some words from the premises which would have 
 made the deed inoperative, and then supported the deed from 
 finding the name of the grantee in the habendum. See further 
 Co. Lit. 26&, note (4), " Where one named oli&r: the habendum 
 shall take." 
 
 Rule 64. — Grant to A. habendum to A. and B. (b). — Where a 
 person is mentioned as grantee in the premises, and is mentioned 
 together with others in the habendum, he alone can take an im- 
 mediate estate. '^° 3Prest. Abst. 41; 2 Prest. Conv. 394, sgg. ; Bar- 
 ton, Comp. 442 and note; and qy. as to effect of 8 & 9 Vict. c. 106, 
 8. 5. 
 
 Conveyance followed by feofi'ment "unto J., habendum to J. 
 and G. and their heirs." Held that, forasmuch as G. was not 
 named in the premises, he could take nothing in the habendum, 
 and that the feoffment was good as to J. and his heirs; " Samnies^ 
 Case, 13 Rep. 54. 
 
 Demise to A. habendum to A., B., C, and D., ^^pro termino vitce 
 eorum et alterius eorum successive diutius viventimn." Held, that 
 A. alone took, as B., C, and D., not being named in the premises, 
 could only take in remainder, which could not be joint 
 [ * 215 ] because of the words * successive, &c., and in succession 
 they could not take for the uncertainty who should be- 
 gin; Windsmore v. Hobart. Hob. 313; S. C. under slightly different 
 names, Godb. 51; Hut. 87; Cro. El. 58; Ow. 39. See also Tyler 
 V. Fisher, Palm. 29. Greenwood v. Tyler, Hob. 314. 
 
 Lease made to two, habendum to them and two others for lives. 
 Held, that the two mentioned in the habendum only took nothing; 
 Kirkman and Reignold's Case, 2 Leon. 1. Demise to C. habendum 
 to C. and D. for years rendering rent. Held, that D. took nothing; 
 Reynold v. Kingman, Cro. El. 115. 
 
 Release by lord of a manor of a copyhold to the tenant on the 
 roll, habendum to the tenant and G., their heirs and assigns; and 
 livery made according to the intent of the indenture: held, that 
 
 {h) In this and the subsequent Eules in this chapter the effect of the de- 
 claration of uses (if any) is neglected. See 1 Sand. Us. 140. 
 *" See note to rule 61. 
 
 230
 
 NO EXPRESS ESTATE LIMITED IN PREMISES. * 216 
 
 as G. was not named in the, premises, be could take nothing by 
 the habendum, and that the livery made according to the in- 
 denture, did not give anything to G., because the indenture as to 
 him was void; Sammes^ Case, 13 Rep. 54. 
 
 Exception. — A person not named in the premises can take an 
 immediate estate in the habendum, (1) in the case of frank mar- 
 riage; (2) under a customary grant by copy; B}-ooks v. Brooks, 
 Cro. Jac. 434; S. C. 2 Roll. Ab. 67; see the authorities collected, 
 Co. Lit. 266, note (4). ' 
 
 Observation. — Remainderman mentioned in habendum only. — 
 Where a particular estate is limited by the habendum to the per- 
 son named as grantee in the premises, with remainder over to a 
 person not named in the premises, the latter can take; Veiiers v. 
 Abbot of Fesch, Pash. 8 Ed. 2, 267; see Kerr v. Kerr, 4 Ir. C. R. 
 493; S. C. 7 Ir. Jur. 76; Burton, Comp. s. 518; Co. Lit. 27a, 
 note (4); and Co. Litt. 2306. 
 
 Rule 65. —Where no express estate is limited by premises. — 
 Where no express estate is limited in the premises, and an ex- 
 press estate is limited in the habendum, the grantee takes the 
 latter estate, and if that estate be contrary to the rules of law, 
 the deed will be void. See Challis, R. P. 334 (2). 
 
 * " If one grant to one, to have and to hold to him [ * 216 ] 
 and his right heirs, by this he hath a fee simple; " Shep. 
 Touch. 102. 
 
 •'If in the premises lands be letten or a rent granted (not 
 making mention of what estate), the general intendment is that 
 an estate for life passeth, but if the habendum limit the same for 
 years or at will, the habendum doth qualify the general intend- 
 ment of the premises;" Co. Lit. 183a. Co. Litt. 42 a; post, Ch. 
 xxi., p. 295. 
 
 '• If a man grants a rent and goes no farther, these general 
 words shall create an estate for life, but if the habendum be for 
 years, it shall qualify the general words;" AUham^s Case, 8 
 Rep. 1546. 
 
 " If by your premises you have given no certain nor express 
 estate than that otherwise the law would give, you may alter and 
 abridge, nay you may utterly frustrate it by the habendum ; " 
 Stuckeley v. Butler, Hob. 170, 171. 
 
 "If no estate be mentioned in the premises, the grantee will 
 take nothing under that part of the deed, except by implication 
 and presumption of law; but if an habendum follow, the inten- 
 
 231
 
 * 21T EXPRESS LIMITATIONS IN BOTH PREMISES AND HABENDUM. 
 
 tion of the parties as to the estate to.be conveyed will be found 
 in the habendum, and consequently no implication or presump- 
 tion of law can be made; and if the intention so expressed be 
 contrary to the rules of law, the intention cannot take effect, 
 and the deed will be void;" Goodtitle d. Dodivell v. Gibbs, 5 B. 
 & C. 717; 8 D. & R. 502. 
 
 " If one grant land, rent, common, or any such like thing, to 
 one in the premises of the deed, without limitation of estate , 
 (which in judgment of law is an implied estate for life), to have 
 and to hold to him for a certain number of years, or at will; this 
 habendum is good, and shall stand with the premises and qualify 
 it [or rather explain it] ; and by this gift the grantee shall have 
 but a lease for years, or at will, as the habendum is; " Shep. 
 Touch. 113. 
 
 Grant by tenant for life of a term to J., and afterwards grant 
 by tenant for life to C, habendum from a future 
 [ * 217 ] * day for life. Held, that the grant was void, as an 
 estate of freehold cannot commence m /m/i(7-o. "The 
 habendum in this case is not contrary to the premises; for no 
 certain estate is contained in the premises, but generally the land 
 given and granted, which might be qualified by the habendum 
 to an estate for years, or at will. For the ofiSce of the premises 
 of a deed of feoffment is to express the grantor, grantee, and 
 thing to be granted, and the office of the habendum is to limit 
 the estate; so that .the general implication of the estate which 
 shall pass by construction of law, by the premises, is always con- 
 trolled and qualified by the habendum. As a lease to two, ha- 
 bendum to one for life,"^ remainder to the other for life, will alter 
 the general implication of joint tenancy of the freehold, which 
 without any habendum would be made. And although the ha- 
 bendum be void, and so in effect as no habendum, yet no estate 
 shall pass by implication of law against the express limitation of 
 the party, although his limitation be void; " Buckler's Case, 2 
 Rep. 55a. 
 
 Feoffment to G., habendum after the death of the feoffor to 
 G., in tail, livery secundum formani; held, void: aliter of the 
 grant of a term to A., habendum after the death of the grantor, 
 in which case the term passes by the premises; Hogg v. Cross, 
 Cro. Eliz. 254. 
 
 Demise and grant to A. and B. habendum " to A. and B., their 
 heirs and assigns from the 1st November preceding for the lives 
 of B., C, and D., or for 999 years, or for ever, which should 
 longest last," at a yearly rent, " payable half yearly during the 
 said term." Held, to be a grant in fee farm ; Tivaddlev. Murphy, 
 8 L. R. Ir. 123. 
 
 Rule 66. — Express limitations in both premises and haben- 
 dum. — If both the premises and the habendum contain different 
 232
 
 PREMISES EXPI-AINEI> BY HABENDUM. * 219 
 
 e.rpress limitations of the estate, the limitatioa in the habendum 
 will, if possible, be considered as explanatory of that in the 
 premises (Rule 16); but if the limitations are repug- 
 nant, they * will be construed in the manner most bene- [ * 218 ] 
 ficial to the grantee®' (Rule 21). See Challis, R. P., 
 Ch. XXX., pp. 333, 335 (4), Co. Litt. 299 a. 
 
 The latter part of the Rule is sometimes expressed as follows: 
 " The habendum may extend but not abridge the estate limited 
 in the premises." 
 
 " The office of the habendum is to explain, limit, and declare 
 the quantum of the estate which is to pass by the deed. It has 
 never been disputed but that it will carry the limitation of the 
 estate farther than the premises of the deed did. If a man gives 
 an estate for life, habendum to him and his heirs, a fee simple 
 clearly passes. On the other hand, it is clear that the habendum 
 never abridges the estate granted by the premises of the deed; 
 it may indeed alter and vary it, as if a man grants an estate to 
 A. and B., to have and to hold to A. for life, the remainder toB., 
 the premises of the deed will be controlled by the habendum;" 
 Kendal v. Micfeild, Barn. Ch. Rep. 46. 
 
 Of course, part of the habendum may be explanatory of the 
 limitation in the premises, while other part may be repugnant 
 and have to be rejected; Doe d. Timmis v. Steele, 4 Q. B. 663. 
 
 Examples where the estate limited in the habendum was 
 construed as explaining that limited in the premises.— 
 
 " Heirs " in the premises explained to mean '■'■heirs of the body^ — 
 "If a man gives lands to one and his heirs habendum to him and 
 the heirs of his body, he shall have an estate tail and no fee 
 expectant;" Altham's Case, 8 Rejp. 1545. See Co. Lit. 21a; 
 Preston, Shep. Touch. 102, 113. In Turnman v. Cooper, Cro. 
 Jac. 476; S. C. 2 Rol. Rep. 19, 23; S. C. sub nom. Thurman v. 
 Cooper, Pop. 138; these words were held to give an estate tail 
 with a remainder in fee; but in that case the construction was 
 made on the whole deed, which was inconsistent with an estate 
 tail only being intended. 
 
 To mean " special occupants.'''' — In Pilsivorth v. Pyet, T. Jones, 
 4; and in Doe d. Timmis v. Steele, 4 Q. B. 663; Lynch v. Nelson, 
 Ir. R. 5 Eq. 192, the word "heirs" in the premises was explained 
 by the habendum to mean " special occupants." 
 
 * Estate pur autre vie and term restricted. — In Earl \ *219 ] 
 of Derby v. Taylor, 1 East, 502. an estate pur autre vie. 
 and in Barton v. Barclay, 7 Bing. 745, a term grant(>d by the 
 premises, was restricted by the liabendum (in each of these cases 
 the facts were somewhat special). 
 
 *" See note to rule Gl. 
 
 233
 
 * 220 HABENDUM ENLARGING PREMISES OR REJECTED. 
 
 Special occupant explained. — Owner of rent-charge pur autre 
 vie grants to "A., his executors, &c., habendum to A., his heirs 
 and assigns," during the lives. Held, that both executors and 
 heirs were special occupants; the word "heirs " was explanatory 
 only of the class of special occupants who were to take; Kendal 
 V. Micfeild, Barn. Ch. Hep. 46. 
 
 Joint estate controlled. — Lease of land to three for their lives, 
 habendum to one for life, remainder to another for life, remainder 
 to the third for life. Held, that they took successively for life; 
 Anon., Dy. 1606 (pi. 43); S. C. sub nom. Bowse's Case, Cro. El. 
 25; see Co. Lit. 1836. Lease to husband, wife, and a third per-' 
 son, habendum to the husband for 80 years if he should so long 
 live, and if he should die within the term, remainder to the wife 
 and the third person if they should so long live. Held, good; F. 
 Moo. 43, pi. 133. See ante, 90, 210, 211; Co. Litt. 183 (6); Dyer, 
 361 a, pi. 8. 
 
 Even if the habendum is void, it may be looked at together 
 with other parts of the deed for the purpose of qualifying the 
 estate limited by the premises; Hagarty v. Nally, 13 Ir. C. L. R. 
 532. 
 
 Examples where the estate hmited in the habendum en- 
 larged that in the premises. — " If a man in the premises give 
 land to another and the heirs of his body, habendum to him and 
 his heirs for ever, he takes an estate tail and a fee simple expect- 
 ant;" Co. Lit. 21a. (It is said Kendal v. Micfeild, Barn. Ch. Rep. 
 (at p. 49) that it is fee simple; possibly Coke's opinion may be 
 supported on the ground that estates in tail and in fee may co- 
 exist in the same person.) 
 
 Examples where, the estate limited in the habendum 
 being less than that limited in the premises, or repugnant 
 to some rule of law, the habendum was rejected. — " If the 
 
 grant is to one and his heirs, habendum for life, the habendum is 
 void, because it gives a lesser estate .... If a man 
 [ * 220 ] grants to another an annual rent * of 20s. payable yearly 
 at the feasts of the Annunciation of Our Lady and of St. 
 Michael, habendum for a day, this is a void habendum, because 
 the premises of the deed grant an annual rent and payable at two 
 days, and now by the habendum it shall not be annual nor pay- 
 able at any day, and therefore it is repugnant;" Throckmerton v. 
 Tracy, 1 Plow. 152a (arguendo). 
 
 Where A. conveyed freeholds to B. and his heirs, habendum to 
 B., his heirs and assigns after the death of A., the habendum, 
 which was void as giving an estate m futuro, was rejected; Good- 
 tifle d. Dodwell v. Gibbs, 5 B. & C. 709; S. C. 8 D. & By. 502; 
 Carter v. Madgivick, 3 Lev. 339. 
 
 In Goshaivke v. Chickell, W. Jones, 205, where J. assigned a 
 234
 
 HABENDUM REJECTED. * 221 
 
 term to B., habendum to J., and his wife for their lives, with re- 
 mainder to B. till her marriage and birth of issue, and afterwards 
 to B., her executors, &c., for the residue of the term; in Jennan 
 V. Orchard, Skin. 528 (see p. 542); S. C. Show. P. C. 199; S. C. 
 1 Salk. 346, where a term was assigned to B.,her executors, &c., 
 habendum after the death of the grantor and his wife; in Lilley v. 
 Whitney, Dv. 272, pi. 30, where aterm was assigned to A., haben- 
 dum to him', his heirs and assigns, after the death of the grantor, 
 the habendum was rejected, and the assignee took the estate given 
 by the premises. 
 
 Assignment of a ship in course of building to A., habendum to 
 A., when it shall be complete. Held, that the habendum might 
 be rejected; Reed v. Fairbanks, 13 C. B. 692. 
 
 Grant to A. and B., habendum to B.; the habendum was re- 
 jected; Cochin V. Heathcote, Lofft, 190. 
 
 R., being tenant for life of a house, by a deed of 10th Novem- 
 ber " granted, demised, and leased to J., his executors, adminis- 
 trators, and assigns," the house, habendum " to J., his executors, 
 administrators, and assigns, from the 13th November for the term 
 of R. for the term of his natural life." Held, that having regard 
 to the interest which the grantor had, there was in the 
 * premises an express grant of the life estate in prmsenti, [ * 221 ] 
 which was not controlled by the habendum; Boddington 
 V. Robinson, L. R. 10 Ex. 270. See remarks on this case in Challis 
 on R. P. p. 84. 
 
 Observation. — Where the estates limited in the premises and 
 the habendum are not the same, and some fui'ther act, besides the 
 delivery of the deed, is necessary to perfect one of them, while 
 the other takes effect by the delivery alone, then the latter estate 
 only is effectually limited. See Challis, R. P. 334. 
 
 In Baldwin's Case, 2 Rep. 23a, land was demised to A. and B. 
 and the heirs of B , habendum to them for 99 years fi'om the date 
 of the indenture. It was held, " First, when to things which 
 take their essence and effect by the delivery of the deed without 
 other ceremony, and which lie in grant, there, in such limitation 
 as in the case at Bar, the habendum was repugnant and void; as 
 if a man grants rent or common, &c., out of his land, by the 
 premises of the deed to one and his heirs, habendum to the grantee 
 for years, or for life, the habendum is repugnant; for a fee 
 passeth by the premises, by the delivery of the deed, and there- 
 fore the habendum for years, or life, is void. Second: If one by 
 deed grants rent in esse, or a seignory, in the premises to one and 
 his heirs, habendum to the grantee for years or life; although an- 
 other tiling, or ceremony, is requisite, that is to say, attornment (6), 
 
 (6) Tlui necessity for attornment is done away with by 4 it f) Ann. c. 16. 
 
 235
 
 *222 ESTATES LIMITED IN PREMISES AND HABENDUM DIFFERENT. 
 
 besides the delivery of the deed, yet, forasmuch as the thing lieth 
 in grant, and both estates, that is to say, as well the estate in fee 
 as the estate for years or for life, ought to have one and the same 
 ceremony, that is to say, attornment, to pass it, as a seignory, &c., 
 and for this cause the habendum, in such case, is repugnant and 
 void. Third: When a man gives land by deed in fee by the 
 premises, habendum to the lessee for life, there the habendvm is 
 void, as hath been said; for one and the same ceremony 
 [ * 222 ] * soil, livery ( c) is requisite to both the estates ; and there- 
 fore, when livery is made according to the form and ef- 
 fect of the deed, it shall be taken strongest against the feofPor, 
 and more for the advantage of the feoffee; and the habendum in 
 such case is void, and till livery be made, the feoffee hath but an 
 estate at will. Fourth : When to the estate limited by the prem- 
 ises, a ceremony is requisite to the perfection of the estate, and to 
 the estate limited by the habendum nothing is required to the 
 perfection and essence thereof, but only the delivery of the deed, 
 there, although the habendum be of a lesser estate than is men- 
 tioned in the premises, the habendum shall stand, as in the case 
 at the Bar: to the fee simple limited by the premises, it is requi- 
 site to have livery and seisin; and till livery be made, nothing 
 shall pass but an estate at will (if the deed had not gone farther), 
 and therefore the habendum, for years is good presently by the 
 delivery of the deed, and so it appeareth it was the intent of the 
 parties that it should take effect, by the delivery of the deed, for 
 years." See Hogg v. Cross, Cro. Eliz. 254. As livery is no longer 
 necessary, the fourth case if it now occurred would probably be 
 decided differently. See 3 Dav. Prec. 102. 
 
 (c) Not now necessary, 8 & 9 Vict. c. 106, s. 2. 
 
 236
 
 ESTATES OF INHERITANCE. * 224 
 
 * CHAPTER XY (a). [ * 223 ] 
 
 ESTATES OF INHERITANCE. 
 
 Limitations " to A. and his heirs'^ — "Heir,'^ in the singular — Omis- 
 sion of "/lis" — Word ^'■heirs^^ rejected — Fee without the 
 word '^ heirs ^^ — The King — Corporations — Releases — Fee by 
 reference — Partitions — Fines and Recoveries — ^^ Heirs^^ of a 
 deceased person — "Heirs'' of the grantor — '^Heirs'' of a 
 living x>erson who is not the grantor — " A. " or " his heirs 
 — Qualification added to heirs — "A and the heirs of his 
 body'' — "Heir" {in the singular) of body — Words "of 
 his body " implied or supplied by context — Limitation in de- 
 fault of heirs of A. to B. ivho is caj)able of being A.'s heir — 
 Designation of person from whom the heirs are to proceed — 
 " Begotten " — " To be begotten " — Estate tail created by ref- 
 erence — "Male" supplied by context — Heirs of body of de- 
 ceased person — of living person — "A. and the heirs of the 
 body of B." — Limitation to husband, or to icife, and the 
 heirs of the bodies of liusband and wife — To A. and B. and 
 the heirs of their bodies — 'In marriage settlement, " heirs " or 
 "heirs of the body," extended by parenthesis, &c., to all 
 children — Fee simple conditional in Copyholds — Rule in 
 Shelley's Case — Where estate of ancestor may determine 
 in his own lifetime — Ancestor taking estate of freehold by 
 implication — Copyholds — Limitations to heir and 
 ancestor must be in the same instrument — * One [ * 224 ] 
 limitation legal, the other equitable — Words added 
 to limitation to ancestoi — W.ords of limitation or distribu- 
 tion added to limitation to heirs — Conditional and determin- 
 able fees — A. and his heirs for years — A. and his heirs for 
 life of B. — Estate gained by entry under jioiver — Lease, or 
 grant of rent till certain sum is paid. 
 
 (ft) Soo post, Chapter XVI., Death WiTiiorr Issuk, and Chapter XVII., 
 Heiks as Purcuaheks; and as to equitable interests, sec Chapter XVIU., 
 Rule 104. 
 
 237
 
 * 224 ESTATE IN FEE SIMPLE. 
 
 Estates in Fee Simple. 
 
 Rule 67. — "A. and his heirs.^^ — A limitation of lands, tene- 
 ments, or hereditaments "to A. and his heirs," or "to A., his 
 heirs and assigns," or "to A., and the heirs of the said A.," or 
 " to A., and the heirs and assigns of A.," vests an estate in fee 
 simple in A. as a purchaser: and in deeds prior to 1882 no estate 
 in fee simple could be created without the word " heirs," ^^ but in 
 
 ^'^ The general rule is that no other words, if the technical word " heirs " 
 is omitted, though conveying to the unprofessional mind a clear intent to 
 convey an inheritance, will be sufficient for the purpose. A strong illustra- 
 tion of this is the case of Tasker v. Joice, 3 Washington, C. C. 498, where a 
 deed to M. " and his generation to endure so long as the waters of the 
 Delaware run," was held to convey a life estate only. For other curious in- 
 stances of the application of this rule, see Arms r. Burt, 1 Vt. 103; Merritt 
 V. Disney, 48 Md. 344; Trommel v. Kleibold, 6 Mo. App. 549; Saunder v. 
 Haynes, 44 N. Y. 353; Jennings v. Carboy, 73 N. Y. 230. This rule ha.s 
 been altered in many of the United States, such as Alabama, Arkansas, 
 California, Colorado, Georgia, Iowa. Illinois, Kansas, Kentucky, Maryland, 
 Mississippi, Missouri, Nebraska, New York, Oregon, Texas, Virginia, and 
 Wisconsin, by statutes which, in effect, dispense with words of inheritance 
 by providing that unless the contrary intent should appear or be implied in 
 the deed, every conveyance shall pass all the estate of the grantor. Kleper v. 
 Kleiss, 51 Ind. 316. A legislative grant, it has been held, may convey a fee 
 without making use of the technical words essential in a deed. Rutherford 
 V. Greene, 2 Wheat. 196. And a government deed given to carry into eflect 
 a donation previously confirmed by the proper authorities, and which runs 
 to the donee "or his heirs," in trust for the person or pensons rightfully en- 
 titled, will be regarded as intending to convey the fee to the donee if liv- 
 ing, and to his heirs if he be dead. Ready v. Kearskey, 14 Mich. 215. See 
 Freidman v. Goodwin, 1 McAll. 142; Grifiing v. Gibb, 1 McAll. 212. A 
 government grant in any form the legislature may prescribe is sufficient, 
 and it will take effect according to the intent. Patton v. Easton, IWheat. 476; 
 Rutherford v. Greene, 2 Wheat. 196; Strother r. Lucas, 6 Peters, 763. 
 
 Another important class of cases ought to be mentioned as an exception to 
 the general rule that the use of the word "heirs " is essential to pass a fee. 
 We refer to conveyances in trust, in which case the trustee must be held to 
 take an estate as large as may be necessary for the purposes of the trust, 
 whether the instrument of conveyance contains words of inheritance or not. 
 Spessard v. Rohrer, 9 Gill. 261; iSTewhall v. Wheeler, 7 Mass. 189; Farquar- 
 son V. Eichelberger, 15 Md. 63; Gould r. Lamb, 11 Mete. 84; Angell ^'. Rosen- 
 berry, 12 Mich. 241; Fisher t'. Fields, 10 Johns. 495; Attorney Gen. i'. Pro- 
 prietors, &c., 3 Gray, 1; Neilson v. Lagow, 12 How, 98; Corn t. Cutler, 29 
 Conn. 4; North v. Philbrook, 34 Me. 532; see also as to this rule Weller v. 
 RoUason, 3 N. J. "Eq. 13; Wolcox v. Wheeler, 47 N. H. 488; Kirkland *. 
 Cox, 94 111. 400; Hardy v. Redman, 3 Cranch C. C. 635. 
 
 A grant to a sovereignty requires no words of inheritance. Josephs v. 
 United States, 1 Court of Claims, 197. 
 
 The rule requiring the use of the technical word " heirs " in order, 
 to pass a fee has always been less strictly applied to the case of wills 
 than it is in deeds. Thatwhere lands are devised by will in terms which 
 indicate an intention to pass all the testator's estate a fee, if he has it, will 
 pass without the use of the word "heirs," see the following American 
 cases: Newkirk r. Newkirk, 2 Caines, 345; Morrison r. Semple, 6 Binn. (Pa.) 
 94- Jackson v. Merrill, 6 Johns. (N. Y.) 185; Jackson v. Housel, 17 Johns. 
 (N. Y.) 281: Fogg v. Clark, 1 N. H. 163; Boker v. Bridge, 12 Pick. 27; 
 
 238
 
 "heir" singular — "ills'" OMITTED "UEIRS"* REJECTED. * 225 
 
 deeds after 1881 an estate in fee simple can be created by a 
 limitation to A. "in fee simple: " see the Conveyancing and Law 
 of Property Act, 1881, 44 & 45 Vict c. 41, s. 51. 
 
 " If a man would purchase lands or tenements in fee simple, 
 it behoveth him to have these words in his purchase, ' to have and 
 to hold to him and to his heirs:' for these words 'his heirs' 
 make the estate of inheritance. For if a man purchase lands by 
 these words, 'to have and to hold to him for ever;' or by these 
 words, 'to have and to hold to him and his assigns for ever; ' in 
 these two cases he hath but an estate for term of life, for that 
 there lack these words, ' his heirs,' which words only make an 
 estate »f inheritance in all feoffments and grants;" Litt. s. 1. 
 
 "A. m /ee si/»pfe."— " If one grant," before 1882, "to J. S., 
 to have and to hold to him in fee simple, or in fee tail, without 
 saying ' to him and his heirs,' or, ' to him and his 
 heirs (a) * males,' or the like, this is but an estate for [*225] 
 
 life So if one grant land to J. S., to have and 
 
 to hold to him and his seed, or to him and his issue generally, 
 by this grant is made only an estate for life;" Shep. Touch. 106. 
 A grant to a natural person and his successors gives only an 
 estate for life; Shep. Touch. 106. 
 
 Bastard. — The rule applies even in the case of a bastard, all of 
 whose heirs must be heirs of his body; Co. Litt. 36. ; Idle v. Cook, 
 1 P. Wms. 78. 
 
 Observation. — ^^Heir'^ in the singular. — A limitation to "A. 
 and his heir" is not fee in A.; seepos^, Chapter XVIL, "Heirs 
 AS Purchasers." 
 
 "If a man give land to a man and to his heir in the singular 
 
 (a) See po.'it, Ch. XXI., Estates for Life, pp. 295, sqq. Barron v. Barron. G 
 Ir. Ch. R. 371, per Napier, C. ; per Holt, C. J., 1 P. Wms. 77. By special 
 custom a customary assurance of copyholds may create an estate of inherit- 
 ance without the word " heirs." See 2 Pre.st. Est. 67, citing Bunting v. Lrp- 
 inrjuun, 4 Rep. at p. 29 b., Com. Dig. Copvhold, f. 8; Kitch. 102b; Watk. 
 Copyhold, 108; Roll. Abr. 839, pi. 50; 1 Roll. Abr. 48. 
 
 Godfrey v. Humphrey, 18 Pick. 537; Lambert v. Paine, 3 Cranch, 97; Wa- 
 terman ?•. Greene. 12 R. L 483; Urier v. Michigan Stove Co., 14 Mich. FiOG; 
 Lincoln r. Lincoln. 107 Mass. 538; Tatumr. McLellan, .")0 Miss. 1; Markillie 
 V. Ragland, 77 111. 98. In the states mentioned in the first paragraph of 
 this note, and also in Delaware, Indiana, Maine, Massachusetts, Michigan, 
 Minnesota, New Hampshire, New .lerscy, North Carolina. Ohio, Pennsyl- 
 vania, Rhode Island, South Carolina, Vermont. West Virginia and perhaps 
 others, and in Ontario and others of the Canadian provinces, it is provided 
 by .statute that a devise .shall pass the test.ator's entire interest, unless there 
 is an evident intention .shown in the will to limit a smaller estate. The 
 Virginia statute was passed in 1795, and is believed to be the pioneer act. 
 Guthrie v. Guthrie, 1 Cal. 12. 
 
 239
 
 * 226 FEE WITHOUT THE WORD ''HEIRS. " 
 
 number, he hath but an estate for life, for his heir cannot take a 
 fee simple by descent, because he is but one, and therefore in 
 that case his heir shall take nothing; " Co. Lit. 86.; see Waker v. 
 Snowe, Palm. 359; Chambers v. Taylor, 2 My. & Cr. 376. Mr. 
 Hargrave, in his note on the passage in Coke, says: "According 
 to many authorities, 'heir' may be nomen collectivum as well in 
 a deed as in a will, and operate in both in the same manner as 
 ' heirs ' in the plural number." But the caseq, that he cites are 
 all cases of wills, with the possible exception of the case in Grod- 
 bolt, which is merely a dictum, as to which it does not appear 
 whether it refers to a will or a deed. But " heir or heirs " gives 
 the fee; Bony v. Taylor, 2 Koll. 253; S. C, 16 Vin. 213; Parols, 
 H. pi. 3. 
 
 ^'■His " omitted. — " If a man give land unto two, to have and to 
 hold to them two et hceredibus, omitting suis, they hava but an 
 estate for life, for the uncertainty. But it is said if land be given 
 to one man, et hceredibus, omitting suis, that notwithstanding the 
 fee simple passeth;" Co. Lit. 86,* see also Plow. 28, 29. See 
 ante, p. 112, and ante, 114. 
 
 Observation. — Word " heirs " rejected. — The context may show 
 that the word " heirs " is to be rejected. 
 
 [ * 226 ] *By a- marriage settlement freeholds were vested in 
 trustees " to hold to the use of A., his heirs and assigns, 
 from the perfection of these presents for and during the term of 
 his natural life; " then followed a limitation to trustees to pre- 
 serve, &c., and other usual provisions in a strict settlement." 
 Held, that A. took an estate for life only; Re Hammersly, 11 Ir. 
 C. R. 229; 12 Ir. C. R. 319. 
 
 First Exception.— r/ie king. — The king may take lands •' to 
 him and his heirs," in which case he takes in his capacity as a 
 man; or he may take 'Ho him and his heirs kings of England," 
 or "to him and his successors kings of England," in which case 
 he takes in his capacity as a body politic; in either case he takes 
 a fee simple; Willion v. Berkley, Flow. 234 {arg.). The king 
 may also take a fee simple by deed enrolled without the word 
 "heirs" or "successors; " Co. Lit. 96. ; Grant on Corporations, 627- 
 
 Second Exception. — Corporation sole (6). — A gift to a cor- 
 poration sole and his successors passes the fee; Co. Lit. 86. And 
 
 [h) Corporation sole vacant. — As to effect of a grant made while a corpora- 
 tion sole is vacant, or while there is no capable member of a corporation ag- 
 gregate; Holden v. Smallbrooke, Vau. at p. 199; Co. Lit. 264a. 
 
 240
 
 FEE WITHOIT THE WORD •"HEIRS.'" * 227 
 
 without the word successors a life estate only passes, even if the 
 gift be to the corporation and his heirs ;^^ Co. Lit. 946, note 4. 
 
 Third Exception. — A gift to a corporation sole in frankal- 
 moine passed the fee without any words of limitation; Co. Lit. 
 936. 
 
 Fourth Exception. — Corporation aggregate (b). — A gift to 
 all a corporation aggregate, where all the corporation can take, 
 passes the fee without any words of limitation ;'^^'' 11 H. 
 4, 84; 11 H. 7, 12, and 27 H. 8, ]5: but if *only one of [ * 227 ] 
 the corporation can take, the word " successors" appears 
 to be necessary: Co. Lit. 946. 
 
 Fifth Exception. — Release. — The rule does not apply to cer- 
 tain releases: "First, when an estate of inheritance passeth and 
 continueth, as if there be three coparceners or joint tenants, and 
 one of them releases to the other two, or to one of them, gener- 
 ally, without these words 'heirs;' secondly, when an estate of 
 inheritance passeth and continueth not, but is extinguished, as 
 when the lord releaseth to the tenant, or the grantee of a rent 
 releaseth to the tenant of the land generally all his right, &c., 
 hereby the seignory, rent, &c., are extinguished for ever, without 
 
 (61 Corporation sole meant. — As to eftcot of a grant made while a corpora- 
 tion sole is vacant, or while there is no capable member of a corporation ag- 
 gregate ; Hol(lcn\. Sinallhrookc. Van. at p. 199; Co. Lit. •2(j-la. 
 
 ^' The number of corporations sole in the United States must be very few 
 indeed. It is possible that the statutes of some states vesting the property 
 of the Roman Catholic church in the bishop and liis successors may have the 
 effect to make them a corporation sole. Some public officers have corporate 
 powers for the purpose of holding property, and of suing and being sued. 
 The same term has been applied in Massachusetts to a minister seised of 
 parsonage lands to himself and his successors, in right of the parish. "Wes- 
 ton V. Hunt, 2 Mass. .TOO; First Pari.sh in fJrunswick v. Dunning, 7 ISIass. 
 44.^. The governor of a state or any other public officer who is invested with 
 any of the attributes of a corporation ])y reason of his official ])osition, is in 
 this resj)ect a corpor.atiou sole. Polk r. Plummer, 2 Humj)li. 500; Governor 
 r. Allen. 8 Humph. ITfJ; .lansen v. Ostrander, 1 Cowen, 670. 
 
 ''■"' Land may be granted to a corporation aggregate, in fee simple, without 
 the use of the word "successors." Wilco.x v. Wheeler, 47 N. H. 4s8; School 
 Di.strict r. Everett, ')2 .Midi. 214; Overseers of I'oor r. Sears, 22 IMck. (Ma.ss.) 
 122; Union Canal Co. r. Young, 1 "Wharf. (Pa.") 425. A corporation chartered 
 to e.xist for a limited period of time only, may nevertheless ac(]uire title in 
 fee to lands. Nicoll v. New York, Ac, \i. VI. Co., 12 X. Y. 121 : li'ives r. Dud- 
 ley, .Jones' Eq. 12G; People r. Mauran. 5 Denio, :5H9: A.sheville Div. r. Ash- 
 tx^n, 92 N. C. 57H. I'ut it has been said that a grant to a corporation aggre- 
 gate limited as to the duration of its existence. Avithout words of ))erpetuity 
 being annexed to flu- grant, woiihl oTily create an estate fur tlie life of tlie 
 corporation. Turnj»ikeCo. r. 111., 9() U. S. (i'.i, (iH; seetliis <loetrine di.scussed 
 and critici.sed in Morawetz Priv. Corp. sec. 3.'>0, 2nd edition. 
 
 1(> INTKUPUETATION OK niCEDH. 241
 
 * 228 ''HEIRS," OF DECEASED PERSON, — OF GRANTOR. 
 
 these words 'heirs:' thirdly, when a bare right is released, as 
 when the disseisee release disseisor all his right, he need not 
 speak of his heirs;" Co. Lit. 96. See ib. 193a; Shep. Touch. 327. 
 
 Sixth Exception.— Fee by reference. — A fee may be limited 
 by words of reference;^* Co. Lit. 96; Garde v. Qarde, 3 Dr. & War. 
 435; S. C. 2 Con. & L. 175. 
 
 A fee simple may be well limited by deod by reference to lim- 
 itations contained in another instrument, provided that the words 
 in the latter instrument are apt and sufficient in law to create a 
 fee simple in an instrument of that nature, ex. gr., conveyance by 
 reference to the uses declared by a will where the word " heirs " 
 is not used. 
 
 So a trust of personalty is well created by words of reference, 
 Re Shirley's Trusts, 32 Beav. 394. 
 
 Seventh Exception. — Partition. — " If partition be made be- 
 tween coparceners of lands in fee simple, and for owelty of par- 
 tition one grant a rent to the other generally, the grantee shall 
 have a fee simple without this word ' heirs;' " Co. Lit. lOa; Plowd. 
 134 (arg.). See Co. Lit. 193a. 
 
 [ * 228] * Eighth Exception. — Fine and recovery. — An estate 
 
 in fee simple could be created by a fine sur conusans de 
 
 droit, &c., or by a recovery without the word "heirs;" Co. Lit. 96. 
 
 Ninth Exception. — C. A. 1881, s. 34. — Declarations vesting 
 property in new triistees under the C. A., 1881, s. 34. 
 See other exceptions, Viner, '■'Estates,^' K. & L. 
 
 Rule 68. — Limitations to heirs or heir of deceased persons (c). 
 
 -A limitation to the heirs of a deceased person confers a fee 
 simple on the person who happens to be his heir, descendible as 
 if the deceased person had been the purchaser; Year Book, 11 
 H. 4, 74; cited Williams on Keal Property, Part 2, Chapter 2, 
 
 ic) As to the effect of a conveyance to A. (who is the heir-at-law of B.) 
 and the heirs of B.. see Co. Lit. -IWh: 3 & 4 W. IV., c. 10(3. s. 4. As to a 
 limitation to "the heirs of A. and B." where A. is dead and B. alive, see 
 Hroes v. Rawes, 14 Ch. D. 614. 
 
 •" Where by reference another iustrnment which does contain the word 
 "heirs" is incorporated with and made ]iart of the conveyance it will pass 
 a fee. Notliina; short of this, however, will enlarsje a life estate to a fee; not 
 even if the reference be to a will, which according to the liberal interpreta- 
 tion adopted by the courts as to wills, creates a fee without words of inherit- 
 ance. Lytle V. Lytle, 10 Watts (Pa.), 259. 
 
 242
 
 REMAINDER TO "UEIRS^' OF GRANTOR, OK OF STRANGER. * 229 
 
 note; Marshall v. Peascod, 2 J. <fe H. 73. See 3 & 4 Will. 4, c. 
 106, s. 4; Cholmondeleij v. Clinton, 2 B. & Aid. 625. 
 
 Observation. — The rule applies where the word is " heir" in 
 the singular; Marshall v. Peaacod. 
 
 Rule 69. — Rtiriiainder to heirs of grantor (d). — A limitation, 
 either at Common Law or under the Statute of Uses, in remain- 
 der to the heirs of the grantor leaves the reversion in fee simple 
 in the grantor, even if no prior estate of freehold is given to him 
 by the conveyance; see Fearne, C. R. 51; Burton, sec. 335. But 
 as to such a limitation after 1833, see 3 & 4 Will. IV. c. 106, s. 3. 
 
 " If a man seised of lands in fee make a feoffment in fee, and 
 depart with his whole estate, and limit the use to his daughter 
 for life, and after her decease, to the use of his son in tail, and 
 after to the use of the right heirs of the feoffor; in this 
 case, albeit he departed with the * whole fee simple by [ * 22U ] 
 the feoffment, and limited no use to himself, yet hath 
 he a reversion;" Co. Litt. 226. Lord Coke goes on to explain 
 that the grantor takes an implied use during his life, so that the 
 heirs could not be purchasers. See to the same effect, F'emvicL- v. 
 Mitforth, Moore, 284; S. C. 1 Leon. 182; sub nom. Read v. Er- 
 ington, Cro. El. 321. See also Bingham'' s Case, 2 Rep. 826; 
 Abbot \. Burton, Salk. 590; S. C. 11 Mod. 181; Com. Rep. 160; 
 Godbold V. Freestone, 3 Lev. 406. 
 
 Copyholds. — It used to be thought that the rule did not apply 
 to the surrender of a copyhold, so that where A. surrendered to 
 the use of B. for life with remainder to the right heirs of A., 
 the heirs of A. took by purchase: Allen v. Paliner\9 Case, 1 Leon. 
 101 ; but this view appears to be incorrect, see Fearne, C. R. 67 
 et seq. 
 
 Where no estate of freehold implied in ancestor. — The rule is 
 the same where the limitations are such that no estate of freehold, 
 arises in the ancestor by implication (see Rule 112, posf, p. 
 
 287). 
 
 F. made a feoffment in fee to the use of himself for 3M\irs, re- 
 mainder to the use of J., then his second son, and the heirs mulo 
 of his body, remainder to the use of the right heirs of F. : Held, 
 that the limitation of the use of the heirs of the feoffor was the 
 old use, and was executed in the feoffor as the reversion in fee, 
 and not as a remainder: Bedford v. Pufi.'ieU, Pop. 3; S. C. Moore, 
 718; cited 1 Rep. 130a.; Godbold v. Freestone, 3 Lev. 40('}. 
 
 (d) Rfc as to rornaincler to heirs of the body of the grantor, post, Rule 76, 
 and .see post, p. 288. 
 
 243
 
 *231 "A. OR HIS heirs" — ''heirs" qualified. 
 
 Executory trusts. — But where there is a direction to convey in 
 certain events to the heirs of the grantor, the person who on the 
 happening of those events is his heir takes as purchaser; Bush v. 
 Locke, 3 CI. & Fin. 721. See Davis v. Kirk, 2 K. & J. 391 ; j^ost, 535. 
 
 Rule 70. — Remainder to heirs of stranger. — A limitation in re- 
 mainder to the heirs of a living person, who is not the grantor, 
 
 and who takes no prior estate of freehold, confers a 
 [*230J * contingent remainder in fee simple on the person who 
 
 is his heir at law at his death. See Wms. Eeal P. Part 
 2, Chap. 2; Sir Thomas Tipping' s Case, cited 1 P. W. 359. S. C. 
 sub nom. Tipping v. Piggot, 1 Eq. Ca. Ab. 385, pi. 2; Gilb. Eq. 
 34; Co. Lit. 378a. 
 
 " If a lease for years be made to A. the remainder to B. in tail, 
 tLe remainder to the right heirs of A., there the remainder vesteth 
 not in A., but the right heirs shall take by purchase if A. die 
 during the estate tail;" Co. Lit. 3196. See Tapner d. Feckham 
 V. MerJott, Willes, 177. 
 
 Hule 71. — A. or his heirs. — Ad immediate limitation to "A. 
 or his heirs " gives an estate for life only to A. ; Co. Lit. 86; Mal- 
 lorifs Case, 5 Rep. 1116; but such a limitation in remainder is, 
 it is submitted, an alternative limitation, viz., a vested remainder 
 to A. for life, and a contingent remainder in fee simple to the heir 
 of A. which becomes vested if A. die before the prior estates de 
 termine. 
 
 Rule 72. — Qualification added to heirs (d). — A qualification 
 added to the "heirs," in a limitation to "A. and his heirs," or "A. 
 his heirs and assigns," such as "male," or "lawfully issuing" 
 (without stating from whom they are to issue), does not cut down 
 A.'s estate from a fee simple to an estate tail. 
 
 " If a man give- lands or tenements to another, to have and to 
 hold to him and to his heirs males, or to his heirs females, he to 
 whom such a gift is made hath a fee simple, because it is not 
 limited by the gift of what body the issue male or female shall 
 
 be-" Lit. s. 31. 
 j-* 231 ] * " Right heirs males;" Doe d. Brviie v Martyn, 8 B. 
 
 & C. 497; S. C. 2 Man. & Ry. 485. " Heirs males law- 
 fully engendered:" Abraham v. Twigg, Cro. El 478; S. C. Moore, 
 424. 
 
 (d) As to heirs, with a qualification, taking by purchase, see post, p 254. 
 
 244
 
 "heirs" qualified — "HEIRS OF BODY,"' * 232 
 
 " If lands be given to the son and to his heirs of tlie body of 
 his father, the son cannot take as heir of the body of his father, 
 because the grant is to him and to his heirs, and consequently he 
 hath a fee simple;" Co. Lit. 27a; the words " of the body of his 
 father,'' being rejected as repugnant. See j^ost, p. 237. 
 
 Exception. — Grant by the Crown. — A grant by the Crown to 
 A. and his heirs male is absolutely void; Lord LovePs Case, 18 H. 
 8; Br. Tit. Patents, -pi. 104, cited 1 Rep. 436, 46a; "For that the 
 King is deceived in his grant, inasmuch as there can be no such 
 inheritance of lands or tenements as the King intended to grant;" 
 Co. Lit. 27a. 
 
 Peerage. — Armorial bearings. — As to the effect of the limitation 
 of a peerage to heirs male, see the Earl of Bet-oil's Case, 2 Dow 
 «fe C. 200; Wiltes Peerage, L. R. 4 H. L. 12(); and as to a grant^of 
 armorial bearings to a man and his heirs male, see Co. Lit. 27a. 
 
 Estates tail"' 
 
 Rule 73. — Limitation to A. and the lieirs of his body. — A lim- 
 itation to " A. and the heirs of his body" vests an estate tail in him 
 as a purchaser, and in deeds prior to 1882 an estate tail could 
 not be created without the words "heirs of the body;" but in 
 deeds after 1881 an estate tail can be created by a limitation to 
 A. " in tail." See the Conveyance and Law of Property Act, 1881, 
 44 & 45 Vict. c. 41, s. 51. 
 
 " In gifts in tail these words ' heirs ' are as necessary 
 * as in feoffments and grants; for seeing every estate [ * 232 ] 
 tail was a fee simple at the common law, and that at the 
 common law no fee simple could be in feoffments and grants 
 without these words ' heirs,' and that an estate in fee tail is but 
 a cut or restrained fee, it followoth that in gifts in a man's life- 
 time no estate can be created without these words ' heirs,' unless 
 it be in case of frank marriage;" Co. Lit. 20a. 
 
 ''Heir'" of body in the singidar (e). — The only case that I have 
 
 (e) See ante. p. 22.5. See also poxl. Chapter XVII., p. 2r)2. 
 
 •'■' Estates tail are believed Jiever to have been nuineroiis in the United 
 States, and have now been abolished by statute in many if not most of the 
 states. In some of the states the words which before the statute created u 
 fee tail now create a fee simple in the donee; while ivi others they create a 
 life estate in the donee, with remainder in lee simple to the issue as tenants 
 in common: or in others with remainder in tee 1o the person who would first 
 take;^*^-*- faniKim doni on the death of the j,'rantee. 'file proper compreh' ii- 
 sioii of Hie principle;; nlntiiig to such estates is tlierefore still if much im- 
 portance to American lawyers. 
 
 245
 
 *233 "IIEIR," III THE SINGULAR, ''OF THE BODY," 
 
 been able to find of an estate tail being created by the word 
 *' heir " of the body in the singular in a deed is the case 39 Ass. 
 pi. 20 (cited in Co. Lit., 22a, and per Hale, C. J., 1 Ventr. 228), 
 where lands were given to a man and his wife, and one heir of 
 their bodies lawfully begotten, and to one heir of the body of that 
 heir only: and it was held to be tail; see S. C. Bro. Abs. " Estate,'''' 
 pi. 38; lb. " Tail," pi. 23; Perkins, s. 171; Fitzh. Abr. " Tail;' pi. 
 19: and see Warrick v. \Varrick, 3 Atk. 291. See this point dis- 
 cussed in 1 Co. Rep. by Fraser, p. IG-l, note (Y), { Archer'' s Case): 
 Dubber x.Trollope, Amb. 457; Bayley v. Morris, 4 Ves. 788; Cham- 
 bers V. Taylor, 2 My. & Cr. 37(3; and White v. Collins, Com. Rep. 
 289 (the case of a devise). But " heir lor heirs of his body," is 
 tail; Bony v. Taylor, 16 Vin. Abr. 213, stated post, 253, " Parols " 
 H. 3; S. C. 2 Roll. 253. 
 
 •' Heirs " necessary { f ). — The use of the word '■ heirs " is (in 
 deeds prior to 1882) absolutely necessary. 
 
 Thus, a limitation to " A. and his issue male of his body," to 
 " A. and for want of issue of his body," remainder over, is not an 
 estate tail; Nevill v. Nevill, 1 Brownl. 152; Seagood v. Hone, Cro. 
 Car. 366 ; Makepiece v. Fletcher, 2 Com. Rep. 457 ; Wheeler v. Duke, 
 1 Cr. & M. 210; S. C. 3 Tyr. 61. Seeper Kindersley, V.-C, Phillips 
 V. James, 2 Dr. & Sm. 411. See also Dawson v. Dawson, 13 Ir. 
 L. R. 472. 
 
 [ * 233 ] ^ '■'■ Of the body " supplied by implication (g). — The 
 words " of his body " may be supplied by implication or 
 the context. See ante, 80, 137. 
 
 . Examples. — " The example that the statute of Westminster 
 Second putteth hath not these words, '<fc corpore,' but these 
 words ' heredibus,' viz., Cimi aliquis dat terram suam alicui viro 
 et ejiisuxori ct heredibus de ipsis vivo et miiliere procreatis ; " Co. 
 Lit. 20&. 
 
 "De." — "If lands be given ioJi., Et heredibus quos idem B. 
 de prima uxore sua legitime 2Jrocrearet," this is a good estate in 
 special tail (albeit, he hath no wife at that time) without these 
 words, "cte corpore.^'' So it is if lands be given to a man and to 
 his heirs which he shall beget of his wife, or to a man, et Iteredi- 
 bus de came sua, or to a man, et heredibus de se. In all these 
 cases these be good estates in tail, and yet these words, de corjiore, 
 are omitted;" Co. Lit. 206. See also Beresford's Case, 7 Rep. 
 
 (/ ) The use of the word heirs was not alwa.vs necessary in a gift in frank- 
 marriage; Co. Lit. 21a et seq. And see Dyer, 286, b. pi. 46. 
 
 (ff) See as to the effect of a limitation to A. and his heirs, with a gift 
 over if A. dies without issue, post, Chapter XVI.. Rule 84; and as to the 
 habendum explaining "heirs" to mean "heirs of the body," see ante, p. 218. 
 
 246
 
 '•OF HIS body" SUPPLIKD BY OrPLICATION. * 234: 
 
 41a • Cotton's Case, 1 Leon. 211; Jack d. Westby v. Fetherstone, 
 2 Huds. c>^ Bro. 320; jjer Holt, C. J., Idle- v. Cooke, 2 Ld. Kaym. at 
 p. 1153; aud Yiner, ''Estate,'' T. 5. 
 
 " Settlement to use of E. for life, remainder to S. in tail male, 
 remainder to F. in tail, remainder to E. in fee, with power to E. 
 to revoke the ;ises limited to S., and to limit new uses. By deed 
 E. revoked the uses limited '• to S. and his heirs male," omitting 
 '•of his body,'" aud limited new uses "to S. and his heirs male," 
 "omitting of his body." Held, that S. took an estate tail, since, 
 if it were construed a fee simple, it would destroy the remainder 
 limited to F., which E. had not power to do; Gihnore v. Harris, 
 Garth. 292; S. G. 3 Lev. 213. 
 
 If lands be granted to J. S., to have and to hold to him and the 
 heirs he shall happen to have of his wife: by this gift he hath 
 but an estate tail, and no fee simple; Shep. Touch. 104. 
 
 One of the cases in which the words " of the body " are im- 
 plied is of sufficient importance to be stated in the rule follow- 
 ing : 
 
 * Rule 1 A:.— Limitation over on failure of heirs of A. [ * 234 ] 
 to a j^erson who may he his heir. — If there be a limita- 
 tion to A. and his heirs, with remainder over to B. on failure of 
 the heirs of A., and B. is capable of being the heir of A, A. 
 takes an estate in tail only, "heirs" being construed as "heirs of 
 the body." See post, Rule 84, p. 248. 
 
 This rule applies to wills; Hawkins, 177. 
 
 Examples.— A conveyance by way of marriage settlement was 
 made to trustees " in trust for the use of the settlor for life, then 
 to the use of his wife for life, and then in trust for the use of his 
 first son and the heirs of such first son, and from and immediately 
 after tbe determination of that estate, in trust for the use of his 
 second, third, fourth, fifth, and all and every other son and sons, 
 and their several and respective heirs, and for default of such 
 issue, then to the use of all and every of his daughter and 
 daughters, and their heirs, to take as tenants in common, and not 
 as joint tenants, and for want of such issue, then in trust for the 
 use of the right heirs of the survivor of himself and his wife for 
 ever." It was held that the sons took successively estates in tail, 
 but that the daughters took estates in fee simple; Abbott, G. J., 
 and Holroyd, J., gave no reason for holding that the sons took in 
 tail- but Bavlev, J., adopting the argument of counsel, says, "In 
 the first limftation in this d<^('d, the word 'heirs' is necessarily 
 used in the restricted meaning, on account of tho subsequent 
 limitation to the second son. For tho deed speaks of the deter- 
 mination of the estate of the oldest sou, which could not happen 
 
 247
 
 *235 "of his body" supplied by implication. 
 
 if by the word ' heirs ' was meant ' heirs general,' for there conld 
 be no failure of heirs general to the eldest son whilst the second 
 son remained alive. The same observations will apply to the 
 limitation over to the second, third, and other sons; " Doe d. Lit- 
 tledale v. Smeddle, 2 B. & Al. 126. 
 
 The limitations in a post-nuptial settlement were to A., the 
 husband, for life, remainder to trustees to preserve, remainder 
 " to B. his eldest son, and the heirs of the said B^, and for default 
 
 thereof," remainders to the other sons of A., successively 
 [*235] in tail male; Held, tail in B. (Lord *Plunket in his 
 
 judgment approves of Doe v. Smeddle): Wall v. Wright, 
 1 Dr. & Wal. 1. See also Jack d. Westby v. Fetherstone, 2 Huds. 
 & Bro. 320; Shelley v. Earsfield, j^ost, 250. 
 
 Designation of x^erson of whose body the heirs are to he. — The 
 importance of pointing out from what person the heirs are to 
 proceed (see 1 P. AVms. 72 per Powis, J.) will appear when we 
 consider the following limitations to a husband and wife; they do 
 not much differ in form, but it will be found in every case that 
 the estate tail vests in that person from whose body the heirs are 
 to proceed. 
 
 The distinction between heirs of the body, and heirs on the 
 body, must be attended to: where "heirs o/ the body of the hus- 
 band begotten by him on the body of the wife " are spoken of, 
 the heirs intended are the heirs of the body of the husband, see 
 Chudleigh's Case, 1 Rep. at 1406; resolution 5, but they are re- 
 stricted by the words "on the body of the wife" to a particular 
 class of the heirs of the body of the husliand, namely, those that 
 he has by her. " Heirs begotten by the husband of the body of 
 the wife," means "heirs of the body of the wife," but they are re- 
 stricted to the heirs begotten by the husband. On the other 
 hand, " heirs begotten by the husband on the body of the wife," 
 means the heirs of their two bodies, because the word "heirs" is 
 not applied to the one more than the other. 
 
 Gift to A. and his wife and the heirs of the body of A. ; in this 
 case A. has an estate in tail general, and the wife an estate for 
 life; Litt. s. 26. 
 
 Gift to A. and his wife and the heirs of A., which he shall be- 
 get on the body of his wife; here A. has an estate in special tail, 
 and the wife an estate for life; Litt. s. 27. 
 
 Gift to A. and his wife and the heirs of the body of the wife by 
 A. begotten; here the wife has an estate in special tail, and A. an 
 estate for life only; Litt. s. 28: Denn d. Trickett v. Gillot, 2 T. 
 R. 431; Reps v. Boyiham. Yelv. 131. And the rule is the 
 same if the husband and wife take successive estates for life 
 245
 
 "BEGOTTEN," ESTATE TAIL CREATED BV REFERENCE • 237 
 
 with remainder to the * use of the heirs of the body of [ * 236 ] 
 the wife by him to be begotten; Alpass v. Watkins, 8 
 T. R. 516. 
 
 Gift to the husband and wife and the heirs " which the hus- 
 band shall beget on the body of the wife," or, " of the body of 
 the husband and wife;" here they both take an estate tail; Litt. 
 s. 28; Demi v. Gillot, 2 T. R. 481; WUUcwis v. Williama, 12 East, 
 209. 
 
 Begotten. — Occasionally the words used are "heirs of his body 
 begotten." 
 
 Here "begotten" extends to issue afterwards begotten (h^, 
 and "to be begotten," to issue already begotten; Co. Lit. 206. 
 So does " hereafter to be begotten; " Hebblethwaite v. Cartwright, 
 Forester, 31; Ca. t. Talbot. .See x>er Wood, V.-C, Gabb v. Pren- 
 dergast, 1 K. & J. at p. 442. But where A. made a feoffment to 
 the use of his younger son in tail, with remainder to the use of 
 the heirs of A.'s body "m posterum procreandis,^^ it was held 
 that a special tail was ci'eated excluding issue already born. 
 Avon., 3 Leon. 87. And it is pointed out, 1 M. & S. 136, that 
 the feoffor's passing by the eldest son in the tirst instance was a 
 very important circumstance to indicate an intention to exclude 
 him altogether. 
 
 Words of reference. — An estate tail may be created by words 
 of reference. 
 
 If a man gives lands to A. " Et heredibus de cor2)ore s-uo.^'' the 
 remainder to B. (Co. Lit. 206), or "to B. and his heirs" (Shep. 
 Touch. 104); '^ in forma proedicta,^^ this is a good estate tail. See 
 also Gilmore v. Harris. 3 Lev. 213: S. C. Carth. 292; Goodright d. 
 Burton v. Rigby, 2 H. Bl. 46. 
 
 '■'■Maw'' supplied by context. — A limitation in tail general may 
 be cut down to one in tail male, the word "male" being supplied 
 by the context. 
 
 * Example. — Settlement on C. for life, remainder to his [ 237 ] 
 heirs on the body of his wife to be begotten "the male 
 to be preferred before the female and the elder brother before the 
 younger: " ite/c/, that C. took an estate in tail male; Demi d. 
 Cresu'ick v. Hob.wn, 2 Bl. Rep. 695, S. C. 5 Burr. 2609. 
 
 (A) Htepost, Chapter XXIII., p. 328, Issue. 
 
 249
 
 *238 '-HEIRS OF THE BODY," OF DECEASED OR LIVING PERSON. 
 
 Rule 75. — ^^ Heirs of body'' of deceased person (i). — A lim- 
 itation to " the heirs of the body of A.," a dead person, vests an 
 estate tail, descendible as if A. bad been the first taker, in the 
 person who is the beir of the body of A. at the date of the deed, 
 as purchaser. 
 
 Rule 76. — '■'Heirs of body''^ of living person (i). — A limita 
 tiou in remainder under the Statute of Uses to " the use of the 
 heirs of the body of A.," a living person, whether the grantor or 
 not, or at Common Law " to the heirs of the body of A.," a liv- 
 ing person who is not the grantor, where A. takes no prior estate 
 of freehold under the same deed, is a contingent remainder in 
 tail in the person who at A.'s death is the heir of his body, de- 
 scendible as if A. had been the first taker. 
 
 Examples of Rules 75 and 76. — Limitation to A. and the 
 heirs of the body of B. — A limitation to " A. and the heirs of the 
 body of his father," where the father is dead, and A. is his eldest 
 son, gives A. an estate tail. If the father is alive, it is an estate 
 for life in A., with a contingent reruainder to the heir of the body 
 of the father. See Co. Lit. 2G6; 'Shep. Touch. 104. Consider 
 the distinctioQ between the above limitation and one " to A. and 
 his heirs of the body of Lis father; " ante, p. 23L 
 ■ In Mandeville's Case, Co. Lit. 266, John de Mandeville by his 
 
 wife Koberge had issue Robert and Maude, and died. 
 [ * 238 ] * Michael de Morevill gave land to Roberge and to the 
 
 heirs of John Mandeville, her late husband, on her body 
 begotten. It was held that Roberge took an estate for life only, 
 that the limitation to the heirs of the body of John de Mande- 
 ville operated as words of purchase, that the fee tail vested in 
 Robert by purchase, and that on his death without issue it vested 
 in Maude by descent. See Fearne, C. R. 82, note. 
 
 Limitation by marriage settlement to use of A. (the settlor) 
 and his heirs till the marriage, afterwards to the use of the wife 
 for life, remainder to the use of trustees and their heirs during 
 the life of A., remainaer to the use of the sons of the marriage 
 successively in tail, remainder to the use of the heirs of the body 
 of A., remainder to A. in fee. Held that the limitation to the 
 heirs of the body of A. was a contingent remainder to the heir of 
 his body; Tipjoin v. Cosiii, or Cosins, or Cozens, Cartb. 272; S. 
 C, Holt, 731; 1 Ld. Raymd. 33; 4 Mod. 380; Fearne, C. R. 43. 
 See to the same effect, Else v. Osborn, 1 P. AVms. 387. 
 
 [i) As to whether the heir takes hy descent or purchase, see Fearne, C. R. 
 80, et seq. As to a limitation at common law to the heirs of the hody of the 
 grantor, see Co. Lit. 226; Fearne, C. R. 51. cited post, p. 288? 1 Sand. Uses, 
 136. See as to deeds after 1833. 3 & 4 Will. IV. c. 106, s. 4. 
 
 250'
 
 "HEIRS OF THE BODY" IN REMAINDER. * 239 
 
 In Vernon v. Wright, 7 H L. C. 35, the, rule was. applied to a 
 devise to " the right heirs of my grandfather S., deceased, by M., 
 his second wife for ever." It was held that the words " heirs by 
 his second wife," must be construed as " heirs of the body of S. 
 lawfully begotten on the body of M., his second wife," and that 
 the words "for ever," did not enlarge the estate into a fee simple. 
 
 Resulting freehold to grantor. — The rule does not apply where 
 A. is the grantor and the uses Limited during his life are not com- 
 mensurate with his life, to that there is a resulting use of the 
 freehold to him during his life (see jwst, Rule 112), with which 
 the remainder to the heirs of his body coalesces under the rule in 
 Shelley's Case. 
 
 A. settled lands to the use of J. for life, remainder to the use 
 of J.'s wife for life, and, after intermediate remainders 
 that failed, to the use of the heirs male of the * body [ * 289 ] 
 of A. J.'s wife survived A. Held, that, on her death, 
 the person who was then the heir male of the body of A., took an 
 estate in tail male by descent from him; Wills v. Palmer. 5 Burr. 
 2615; S.C. 2.B1. Rep. 687 (k). See this case discitssed, Fearne, C. 
 R. 45a; see also Southcot v. Stoii-ell, 1 Mod. 226, 237; S. C. 2 Mod. 
 207; Pibus v. Mitford, 1 Vent. 372. 
 
 Rule 77. — Limitation to A., remainder to heirs of the bodies 
 of A. and B. — Where A. & B. are husband and wife, a limitation 
 to A., for life, with remainder to the heirs of the bodies of A. and 
 B., creates not an estate tail in A., but a contingent remainder in 
 tail in the heirs of the bodies of both A. and B. 
 
 See Dyer, 996, pi. (64) ; Gossage v. Tayler, Sty. 325, cited by 
 Buller, J., from a MS. report, 2 T. R. 435; Frogmorton d. Robin- 
 son V. Wharrey, or Throgmorten d. Robinson v. Whalley, 2 Bl. 
 Rep. 72S; S. C. 3 Wils. 125, 144 : see also Lane v. Pannel, 1 Roll. 
 Rep. 238, 317, 438. The case in 3 Leon. 4, pi. 10, must be con- 
 sidered as overruled. See Fearne, C. R. 38. 
 
 Rule 78. — To A. and B. and heirs of their bodies. — The con- 
 struction of a limitation to " A. and B., and the heirs of their 
 
 (k) There is j>;reat diftifulty in understanding tlie part of the certifieate 
 which says " that it a thud jiersun liad been the K'iiiitor. TIenry wouhl liave 
 taken an estate in tail male by i)urehase." William was at Arehdalc's death 
 the heir male of his body, so that he wonld have taken a7i estate intail niale 
 by purchase, and Henry would have taken by descent from him aceordiniito 
 the doctrine in MniulevilU-'s Cnsi-. supra. Possibly all tliat was meant was 
 that Henry v-'ould not have taken by descent from Arclidale. Hee Fearne, 
 C. H. 82. ^ 
 
 251
 
 * 2-1:1 ''HEIRS*'' EXTENDED BY PAREISTHESIS. 
 
 bodies," depends upoa whether (1) A. and B. are persons unable 
 to marry, or (2) are husband and wife, or persons able to marry. 
 
 (1.) Where A. and B. unable to marry. — If A. and B. are per- 
 sons unable to marry (either two men or two women, or a man 
 
 and woman within the prohibited degrees), they are joint 
 [*240] tenants for life, with * several inheritances; Co. Litt. 
 
 182a, 184a.- Fearne, C. K. 36. Smy y. June, Cro. Eliz. 
 219: S. C. sub nom. Smy \. Choivn, 1 And. 264: S. C. sub nom. 
 Cotton's Case, 1 Leon. 2li; and see Matthews y. Temple, post, 280. 
 (2.) Where A. and B. husband and vnfe, or can marry. — If 
 A. and B. are husband and wife, or a man and woman who can 
 marry, they take an estate in special tail in the entirety; Co. Litt. 
 256;' Fearne, C. R. 35. See post, Chap. XIX., Joint Tenancy. 
 Williams, R. P. Chap. VL 
 
 Rule 79. — In marriage settlement " heirs " extended to all the 
 children by parenthesis, punctuation, &c. — In construing the lim- 
 itations in a marriage settlement, the words " heirs," or " heirs 
 of the body," may, by the use of a parenthesis, or by punctua- 
 tion, be construed as applying to all the children, or to all the 
 sons, as the case may require. 
 
 Examples.— Where the limitations in a marriage settlement 
 were (after prior limitations) '' to the use of all and every the 
 child or children equally share and share alike to hold the same 
 as tenants in common and not as joint tenants, and if but one 
 child, then to such only child, his or her heirs or assigns forever," 
 it was held that the words *' to hold the . . . then to such only 
 child " might be put into a parenthesis so as to make the limita- 
 tion run " to the use of all and every the child and children 
 equally share and share alike, his or her heirs or assigns," and 
 thus to give estates in fee simple to the children; Doe d. Willis 
 V. Martin, 4 T. R. 39. 
 
 Limitations to the use of N. for life, remainder to trustees to 
 preserve, &c., remainder (subject to a term") to the use of the first 
 son of the body of N., lawfully issuing, and for default of such 
 issue, to the use of the second, third, foiirth, &c., and of all and 
 every son and sons of N. lawfully issuing severally and succes- 
 sively in remainder one after another, as they and every of them 
 shall happen to be in priority of birth and seniority of age, and 
 of the several heirs male of the body and bodies of all and every 
 such son and sons respectively issuing; held, that the only son 
 of N. took an estate in tail male; Oicenv. Smyth, 2 H. 
 
 Bl. 594. 
 [ * 241 ] * Marriage settlement to the use of J. for life, remainder 
 to trustees to preserve, &c. remainder (subject to terms 
 
 252
 
 FEE SIMPLE CONDITIONAL IN COPYHOLDS. * 242 
 
 for portions, &c. ) to the use of the tirst son of the body of J. by 
 A. his intended wife, and for default of such issue, to the use of 
 the second, third, and other sons of the body of J. by A., severally 
 and successively as they should be in seniority of age, and of the 
 several heirs male of their respective bodies, and for default of 
 such issue, then, iti case A. should be e))C('i)ite by J., to the use 
 of P. till A. should be delivered, in trust for afterborn child or 
 children; and in case such should be a son or sous, to the use of 
 such afterborn son and sons severally and successively as they 
 should be in priority of birth, and the heirs male of the body and 
 bodies of such afterborn son and sons. Held, that the tirst son 
 of J. by A., born during his life, took an estate tail; Galley v. 
 Barrington, 2 Bing. 387; S. C. ]0 J. B. Moore, 21. 
 
 A limitation ''to the use of M. and such other daughter or 
 daughters as F. shall or may have or beget on the body of K., his 
 wife" if any, share and share alike, and if no other daughter save 
 the said M., then the said premises to go and descend to the said 
 M., her heirs and assigns forever." It was observed by Sugden, 
 C, that "in construing such limitations, by punctuation, or by 
 the use of a parenthesis, the words " heirs and assigns," may be 
 extended in their application, and instead of being confined to 
 one daughter may be referred to all the daughters of the marriage, 
 if more than one;" Rochfort v. Fitzmaurice, 2 Dr. & War. 1, at 
 p. 15. See also Be Denny's Estate, Ji: B. 8 Eq. 427. 
 
 Rule 80. — Copyholds, fee simple conditional.—-^ ords which 
 create an estate tail in freeholds, create an estate in fee simple 
 conditional in copyholds holden of a manor where there is no 
 custom to entail.'" 
 
 See Doe d. Simpson v. Simpson, 4 Bing. N. C. 338; S. C. 
 3 Man. & Gr. 929: Doc d. Spencer v. Clarke, 5 B, & 
 *A1. 458; Pulleu \. Middleton, 9 Mod. 483; Rowden v. [ * 242 J 
 Maltster, Oro. Car. 42. 
 
 The Rule in Shelley's Case (e). 
 
 Rule 81. — Where the ancestor takes an estate of freehold, and 
 in the same instrument an estate is limited by way of remainder, 
 either mediately or immediately, to his "heirs" or "heirs of the 
 body," the word " heirs " is a word of limitation and not of pur- 
 chase, and therefore the ancestor takes an estate in fee simple or 
 
 (e) See Shelley's Case, 1 Rep. 9:ib; Fearne, C. R. 28, et seg. ;• Tudor's L. C. 
 Real Property (Hrd ed.), 589. 
 
 '"' Copyhold estates are entirely iiiikiiowii in tlie United States. 
 
 253
 
 * 243 RULE IN Shelley's case. 
 
 in tail, as the case may be." But " heirs of the body," may , be con- 
 strued "children," and they then take as purchasers, post, R. 92, 
 p. 256. 
 
 " Where the ancestor taketh an estate of freehold, and after a 
 remainder is limited to his right heirs, the fee simple vesteth 
 in himself, as well as if it had been limited to him and his heirs; 
 for ' his right heirs ' are in this case words of lim'itation of estate, 
 and not of purchase. Otherwise it is where the ancestor taketh 
 but an estate for years: as if a lease for years be made to A. the 
 remainder to B. in tail, the remainder to the right heirs of A.; 
 there the remainder vesteth not in A., but the right heirs shall 
 take by purchase if A. dieth during the estate tail. . . . And 
 so it is if A. make a feoffment in fee to the use of B. for life, and 
 after to the use of C. for life or in tail, and after to the use of 
 the right heirs of B. B. hath the fee simple in him as well when 
 it is by limitation of use, as when it is by act executed;" Co. Lit. 
 3195. 
 
 Estate of ancestor determinable. — It makes no difference that 
 the estate of the ancestor mav determine during his own lifetime, 
 as in Merrill v. Rumsey, 1 Keb. 888; S. C. 1 Sid. 247, pi. 12; T 
 Raym. 126; where a conveyance was made to husband and wife 
 for their joint lives, and after the decease of either, to 
 [ * 243 J her heirs by him * begotten; it was held to be tail in the 
 wife: or, as in Curtis v. Price, 12 Ves. 89, where the es- 
 tate limited to the ancestor was during widowhood only. 
 
 Contingent remainders interposed.- 'EiV^n under the old law, 
 contingent remainders interposed between the limitation to the 
 ancestor and that his heirs were not destroyed. The state of in- 
 heritance in the ancestor was considered to be executed submodo 
 only, and so as to open and let in the contingent estates if they 
 
 ''^ The rule in Shelley's Case was adopted as part of the common la\v in 
 most of the United States. James' Claim, 1 Dal. (Pa.) 47; Findlay v. Kid- 
 dle, 3 Binn. (Pa.) 15:2; George v. Morgan, Iti Pa. St. 9.5; Dott v. Cunning- 
 ton, 1 Bay (S. C), 453; Davidson r. Davidson, 1 Hawks. (N. C.) 163; Koy 
 V. Garnett, 2 Wash. C. C. 9; Smith v. Chapman, 1 Hen. & Munf. (Va.) 24(); 
 Lyless c. Digge, 6 Har. & Johns. (Md.) 364; Chilton v. Henderson, 9 Gill. 
 (Md.) 432; Polk v. Fans, 9 Ga. 209; McFeely r. Moore, 5 Hammond (Ga.), 
 465. Tlie rnle is therefore a part of the common law of all the states in 
 which it has not been abolished by statute. Baker r. Scott, 62 111. 86; Po-ncll 
 r. Brandon. 24 Miss. 353. It has however been abolished by statute in many 
 of tlie states; such is the case in Alabama, California, Connecticut, Illinois, 
 Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, New York, 
 Tennessee, Virginia, West Virginia, Wisconsin; in Mississippi as to real estate 
 only. Powellr. Brandon, 24 Miss. 343. Abolished asto vvillsin New Hampshire, 
 Ohio, Kansas and Oregon; inEhodelslandastodevisestooneforlife, remainder 
 to his children or issue generally. As to New Jersey see Den v. Demarest, 
 1 N. J. 525. The statutes of the several states relating to this subject will 
 be found collected in 2 Washb. Real Prop. 657, note (5th ed.). 
 
 254
 
 RULE IN Shelley's CASE. *244 
 
 vested in the lifetime of the ancestor:'" Lewis Boicles's Case, 11 
 Rep. 796; Tud. L. C. Real P. 87 (8rd ed.)- 
 
 A)tcestor taking estate by i)npticatio)i{f}. — it makes no ditt'er- 
 ence that the ancestor takes his estate of freehold by implication 
 only; Pibiis v. Mitford, 1 Vent. 372; Wills v. Palmer, 5 Bur. 
 26 15; S. C. 2 Bl. Rep. 687. 
 
 Copyholds. — The Rule applies to limitations of copyholds; 
 Allen and Palmer's Case, 1 Leon. 101. See Fearne. C. R. 66. 
 
 The two limitations must be in the same instrument. 
 
 See jP^r Dyer, C. J. in Cranmer's Case, 2 Leon. 7; and Moor v. 
 Parker, 4 Mod. 316, S. C. 1 Ld. Ray. 37: Snowe v. Cuttler, 1 
 Lev. 135; Doe d. Fonnereau v. Fonnereau, 2 Doug. 487. 
 
 Deeds exercising powers. — The question whether a deed in exe- 
 cution of a power is to be considered as part of the instrument 
 conferring the power, so as to make limitations in the two instru- 
 ments coalesce according to the rule, has been much discussed: 
 see Fearne, C. R. 74; Co. Lit. 29%. n. (I); 1 Frest. Est. 324: 2 
 Jarman on Wills, 334. In Sugden on Powers (8th ed. p. 4/2), 
 Ld. St Leonards says: "In Venables v. Morris, 7 T. R. 34V. the 
 very question arose. Under a settlement, the husband was ten 
 ant for life, remainder to trustees and their heirs gener- 
 ally to preserve * remainders, with remainder (after [*244] 
 several uses which never arose) to such uses as the wife 
 should appoint. She appointed to the right heirs of her hus- 
 band. The Court ultimately held that the fee simple vested in 
 the trustees, so that the estate limited under the power being 
 merely equitable, could not unite with the limitation to the hus- 
 band for life in the deed, which was a legal estate; but Ld. Ken- 
 yon treated it as quite a clear point, that the appointment was 
 to be considered in the same light as if it had been inserted in 
 the original deed by which the power of appointment was created: 
 and therefore he held that, if the limitation to the heirs of the 
 husband had been a legal estate, it would have enlarged the es- 
 tate in the ancestor, and given him a fee. The point may be con- 
 sidered as settled.'* 
 
 One liinitation legal and one equitable. — The Rule does not ap- 
 ply where one limitation is legal and the other is equitable; '^ 
 
 ( f) See further as Ui estates by implication, pont, Chapter XX. 
 
 ''■* Where one by deed frranted to his son an estate for life, and afterward 
 fiave thf reversion by devise to lite heirs, or lieirs of tlie l)ody. of the son. it 
 was hehl that his lieirs took by purchase; see A(hinis r. (iuerard, 2i) (Ja. (iT"). 
 
 '• Where one of tlie estitesis le^r.il and the otlier eciuitaWe the rule does 
 not apply, and the lieirs fake as iiurchasers. Tallinan /. \Vood,;lU Wend. 
 (N. Y.) 'J; Bacon's Appeal, 57 Fa. St. 501. 
 
 255
 
 * 245 RULE IN SHELLEY'S CASE. 
 
 Venables v. Morris, 7 T. R. 342; Tippin v. Coson, or Cosin, 4 
 Mod. 380; S. C. Carth. 272; Ireson v. Pearman, 3 B. & C. 799. 
 
 Words added to limitation to ancestor. — The Rule applies even 
 if words are added to the limitation to the ancestor, clearly show- 
 ing that his estate is not intended to continue after his death ; 
 see the cases (all on wills) collected, Theobald on Wills (2nd 
 ed.) p. 336. 
 
 Limitation to heirs fotloived by ivords of distribution. — It ap- 
 plies if words of distribution are added to the limitation to the 
 heirs, as " share and share alike;" see the cases (all on wills) in 
 Theobald on Wills (2nd ed.) p. 338. 
 
 Words of limitation. — Words of limitation added to the limita 
 tion to the heirs do not prevent the application of the rule; see this 
 discussed, Hawkins on Wills, 185; see the cases on wills collected, 
 Theobald on Wills (2nd ed.) p. 337. Tud. L. C. R. P. 608. 
 
 Where in a marriage settlement the limitations were to the 
 
 husband for life, remainder to the wife for life, remainder 
 
 [ * 245 ] to the " heirs of the body of the wife and their * heirs 
 
 and assigns for ever," it was held that the wife took an 
 
 estate tail; Alpass v. Watkins, 8 T. R. 516. 
 
 Of both distribution and limitation. — The rule applies if words 
 both of distribution and of limitation are added to the limitation 
 to the heirs; see Theobald on Wills (2nd ed.) p. 338. See the 
 qiiestioa discussed- what words of explanation added to the word 
 " heirs " will render the heirs purchasers; Hawkins on Wills, 186: 
 Theobald on Wills (2nd ed.), p. 340. 
 
 Deeds and ivills. — In Re White and Mindless Contract, 7 Ch. 
 D. 201, Malins, V. -C, held that there is no difference between 
 deeds and wills as to the application of the rale in Shelley^s Case. 
 
 Executory or conditional limitation to the heirs. — It is said that 
 the rule does not apply where the limitation to the heirs is not 
 by way of remainder, but is by way of executory or conditional 
 limitation of a future use: but see Re White and HindWs Con- 
 tract, ubi sup. 
 
 Remainder contingent. — The rule applies though the remain- 
 der be contingent; Co. Lit. 3786; 1 Prest. Est. 316. 
 
 Conditional and determinable fees, &c. 
 
 Conditional fees. — The many questions that occur on conditional 
 fees will be found discussed in Co. Litt. 201a to 237, " Estates 
 upon condition." As to the meaning of " condition," see 2 Fearne, 
 C. R. 3. 
 
 Determinable fees ( 1) tinder the statute of tises. — The cases on 
 the constrviction of fees made determinable by shifting clauses 
 taking effect under the Statute of Uses, are discussed in Co. Litt. 
 327a, note; 3 Dav. Prec. 349, et seq. 
 256
 
 CONDITIONAL FEE. — DETERMINABLE FEE. * 246 
 
 (2) At common laic. — The question whether a fee can be made 
 determinable at common law is discussed in Sanders on Uses, 208, 
 in Pollock on the Land Laws, 218, and in the treatise by ]\L*. 
 Challis, prefixed to Hood and Challis on the Conveyancing Acts, 
 2nd edit. p. 48, et seq; Challis on Real Property, Ch. XVII., pp. 
 197, sqq. See also Tud. L. C. R. P. (3rd edit), 744. 
 
 Limitation to A. '■^ and his heirs'^ for years. — It should per- 
 haps be observed that a limitation at common law, " to A. and 
 his heirs for a term of years," confers a chattel interest only, 
 which passes to his executors or administrators on his 
 death: Co. Litt. 388a, 62b; * Shep. Touch. 271, 469; 1 [ * 246 ] 
 Prest. Est. 31 et seq. See also Anon., Godb. 42, pi 48. 
 
 Estate pur autre vie. — The effect of a limitation to A. and his 
 heirs daring the life of B., is not that A. takes a determinable fee 
 simple, but that if A. dies without having disposed of his estate 
 pur autre vie, his heir takes it as special occupant and not by de- 
 scent; Atkinson v. Baker, 4 T. R. 229; Doe v. Litxton, 6 T. R. 
 292; See Tud. L. C. R. P. (3rd edit.), pp. 50, et seq. 
 
 As to a quasi estate tail p»r autre vie, see Tud. L. C. R. P. 53, 
 54; and Williams on Seisin, 166. Re Barber's Settled Estates, 18 
 Ch. D. 624. 
 
 In connection with the subject of determinable fees the follow- 
 ing remarks may be made: — 
 
 First, Estate gained by entry under power. — "Where a rent- 
 charge, with power of entry, is secured to A. and his heirs, A. 
 gains by entry no estate of freehold, but merely an interest by 
 the agreement of the parties to take the profits in the nature of a 
 distress; Co. Litt. 203a. And this interest passes to the execu- 
 tors of the person who enters: see note, loc. cit. and the cases 
 there cited; see also Jemmot v. Cooly, 1 Lev. 170; S. C. T. Ray. 
 135, 158. 
 
 Secondly, Lease till a certaiyi sum be paid. — If a lease be 
 made of land to A., without words of limitation, till a certain sum 
 be paid, " in this case, because the annual profits are uncertain, 
 he hath an estate for life, if livery be made, determinable upon 
 the levying of" the sum; Co. Litt. 42a; see Manning's Case, 8 
 Rep. 94b. But, formerly, it was but an estate at will without 
 feoffment, for it is not certain that the land shall be every year 
 of the same annual value. See the Bishop of Bath's Case, 6 Rep. 
 at p. 36a. On the other hand — 
 
 Thirdly, Gh^ant of rent till certain sum be paid. — " If a man 
 grant a rent of £20 per annum till £100 be paid, there he hath 
 an estate for five years, for there it is certain and depends upon 
 no uncertainty;" Co.- Litt. 42a. 
 
 17 IXTEEPEETATION OF DEEDS. 257
 
 248 DEATH WITHOUT ISSUE. 
 
 [ * 247 ] * CHAPTER XYL 
 
 DEATH WITHOUT ISSUE. 
 
 Death without issue : Gift over on death before the happening of 
 a certain event, '^or^' tvithout issue : Limitation to A. and 
 his heirs, or to A. for life, followed by a gift over on death 
 '^tvithout issue,^^ or, '■'■ without heirs of his body'\' Gift over 
 ^^ in default of such issue,'''' or '■'■without leaving issue^\' 
 Limitation to children ivith gift over in default of such issue. 
 
 Rule 82. — ^'^ Death without issue.''^ — The words " die without 
 issue," are construed to mean the death of the propositus, and 
 the failure of his issue at any time either before, at, or after his 
 death. 
 
 The rule applies where the words are " without issue male.''' 
 
 Examples. — Limitation of a term to raise portions, " if A. 
 should die without issue male; " A. died leaving a son and 
 daughters, then the son died without issue male: Held that the 
 limitation on " the death of A., without issue male " thereupon 
 took effect; Goodwin v. Clark, 1 Lev. 35: S. C. sub nom. Goodiar 
 V. Clarke, 1 Sid. 102, where the words are said to be " if he die 
 without heir male of his body; " S. C. sub nom. Goodierv. Gierke, 
 1 Keb. 73, 78, 169, 246, 462, where the case is stated somewhat 
 differently. 
 
 The rule does not apply where the gift over is on death 
 without issue at a certain age; Right v. Day, 16 East, 67, a will 
 
 case. 
 [ * 248 ] * The context may show that death " without issue " 
 
 means "without leaving children," see pos^, Chap. 
 XXIIL, or "without leaving issue living at A.'s death." See the 
 cases (all arising on Wills) ; Hawkins, 207; 2 Jarman on Wills, 497. 
 
 Rule 83. — " Or''^ tvithout issue read ^' and.''^ — In a limitation 
 to A. in fee simple, or to A. for life with remainder to his issue, 
 with a gift over on his death before the happening of a certain 
 event, or without issue, " or " will be construed " and." 
 
 258
 
 ''OK*' WITHOUT ISSUE READ "AND." * 249 
 
 Siin-ender of copyholds to the use of S. for life, remainder to 
 the use of his wife E. during widowhood, remainder to the use of 
 "\y. for life, remainder to the use of the issue of his body; with a 
 proviso that if W. should die in the lifetime of S. or without issue 
 of his body, then the surrendered premises should go over: Held, 
 that "o?-" must be read ''and,'" and that the gift over would only 
 take efiect if W. died in the lifetime of S. without issue; Wright 
 V. Kemjj, 3 T. E. 470. 
 
 See the corresponding rule as to wills stated and discussed, 1 
 Jarman on "Wills, 505; Hawkins, 203. 
 
 Rule 84. — Limitation to A. and his heirs icith a gift over on his 
 death icithout issue. — A limitation " to A. and his heirs," followed 
 by a gift over if A. dies " without issue," or " without heirs of his 
 body," confers an estate tail on A. (See per Wright, L. K., 1 P. 
 W. 57, note.) See ante, Eule 74, p. 2^4. 
 
 Examples. — " If lands be given to B. and his heirs, to have 
 and to hold to B. and his heirs, if B. has heirs of his body, and 
 if he die without heirs of his body, that it shall revert 'to the 
 donor, this is adjudged an estate tail and the reversion in the 
 donor; " Co. Lit. 21a. 
 
 Limitation to the use of A. and B., his wife for life and to the 
 heirs of A. after the death of A. and B., and if it 
 * shall happen that A. should die without issue of his [ * 249 ] 
 body, remainder over; held, tail in A.; Canon's Case, 
 8 Leon. 5, pi. 13. 
 
 FeofPment by B., to the use of himself for life, remainder to 
 the use of J. for life, remainder to the use of the first son begot- 
 ten of the body of J. that shall have heirs male of his body and 
 to his heirs, and in default of such issue of his body, to the use 
 of the first daughter of J., which shall have issue of her body, re- 
 mainder to the right heirs of J. Held, that the limitation to the 
 first son of J., was a contingent estate tail in him; Beck's Case, 
 alias Burton v. Nichols, Lit. Kep. 159, 253, 285, 315, 344. The 
 report of this case sub nom. Boreton v. Nicholls, Cro. Car. 363, is 
 very imperfect. 
 
 Limitation to the use of A. for life, remainder " to the use of 
 his son Thomas and his heirs for ever, and for default of issue 
 of the body of the son," to the use of the heirs of A. ; held, tail 
 in the son; Leigh v. Brace, 5 Mod. 266; S. C. Carth. 343; 1 Lord 
 Ray. 101; 3 Salk. 337; Holt, 668; 12 Mod. 101. There is some 
 discrepancy in the reports of this case, but it is correctly stared 
 in the text. See Willes, 181. 
 
 Conveyance to the use of the settlor for life, remainder to the 
 use of D., his heirs and assigns, but if D. should die without 
 issue, to the use of T., his heirs and assigns, but if both D. -and 
 
 259
 
 *250 GIFT OVER IN DEFAULT OF SUCH ISSUE. 
 
 T. should die without issue, to the use of the male issue of the 
 settlor. D. died without issue; held, that T. took an estate tail; 
 Morgan v. Morgan, L. K. 10 Eq. 99. 
 
 Limitation to the use of A. for life, remainder to the use of his 
 eldest son and the heirs male of such eldest son, the elder always 
 to be preferred before the younger, and in case of failure of the 
 issue male of the eldest son, remainder over. Semble, the eldest 
 son took an estate tail; Smith v. Smith, 5 Ir. Cj R. 88. 
 
 Estate for life not enlarged by gift over on death ivithout is- 
 sue. — It is perhajis unnecessary to say that an express estate for 
 life will not be enlarged by a gift over in default of issue of the 
 tenant for life; Seagood v. Hone, Cro. Car. 366. 
 
 [ * 250 ] * Rule 85. — Limitation over in default of such issue, 
 or ivithout leaving issue. — An estate in fee simple is not 
 cut down to an estate tail by a gift over " in default of such is- 
 sue," or, " without leaving issue." 
 
 "For default of such issue;" Idle v. Cook, 2 Ld. Ray. 1144; 
 S. C. 2 Salk. 620; 1 P. W. 70; 11 Mod. 57; Holt, 164. 
 
 "AYithout leaving issue:" Olivant v. Wright, 9 Ch. D. 646. 
 
 " For want of such; " Bayley v. Morris, 4 Ves. 788. 
 
 Personalty. — As to the effect of such words in a gift of per- 
 sonalty, see Exel v. Wallace, 2 Ves. Sen. 118; on app. ibid., 318. 
 
 ^^ Such issue ^^ proceeding from specified body. — Of course the 
 context may show that the issue is to proceed from a specified 
 body, so as to cut down the fee to an estate tail. 
 
 Limitation to the use of the first son who shall have issue male 
 of his body and to his heirs, and for default of such issue over; 
 held, tail in the son; Burton v. Nichols, alias Beckys Case, Lit. 
 159, 253, 285, 315, 344; S. C. sub nom. Boreton v. Nicholls, Cro. 
 Car. 363. 
 
 In Beresford's Case, 7 Rep. 41a, a limitation in remainder "to 
 the use of A. and of the heirs male of the said A. lawfully begot- 
 ten, and for default of such issue," over, was held, on the con- 
 struction of the whole deed, to give to A. an estate in tail male. 
 "Willes, C. J., says (Goodright d. Goodridge v. Goodridge, AVilles, 
 374), that this case " can hardly be cited as an authority, unless 
 a deed of uses should happen to be penned exactly in the same 
 words." 
 
 In Shelley v. Earsfield, 1 Rep. in Ch. 206, where the limita- 
 tions were, to the use of A. for life, remainder lo the use of the 
 heirs of A. lawfully begotten, and for want of such issue remain- 
 der (subject to some prior limitations) to the use of B. (A-'s 
 260
 
 GIFT OVER IX DEFAULT OF SUCH ISSUE. * 251 
 
 brother) for ninety-nine years if he should so long live; 
 
 it was held that A. took * in tail. No reasons were [ * 251 ] 
 
 given for the decision, which probably turned on Rule 
 
 74, ante. 
 
 Rule 86. — Gift to children not enlarged by gift over in default 
 of such issue. — A limitation to a child, or to children generally, 
 will not be enlarged to an estate tail merely by a gift over " in 
 default of such issue." 
 
 Examples. — Remainder in a settlement, after successive estates 
 tail in the sons, " to the use of all and every the daughters of the 
 body of the said A. on his said wife to be begotten as tenants in 
 common and not as joint tenants, and for default of such issue, 
 to the right heirs of A. It was admitted without argument that 
 the daughters took for life only; Snell. v Silcock, 5 Ves. 469; 
 Chambers v. Taylor, 2 My. & Cr. 376. 
 
 201
 
 253 "heir" in the singular — heirs as purchasers. 
 
 [ * 252 ] * CHAPTER XYII. 
 
 HEIRS AS PURCHASERS (a). 
 
 "Heir " or " Heir of the body " m the singular: Heir at common 
 laiv takes under limitation to '^ heirs ^^ as 2^urchasers: 
 " Heirs " and " Heirs of the body " with superadded qualifi- 
 cation: ^^ Heirs of the body^' may mean children: ^^ Heirs ^^ 
 or ^^Heirs of the body " applied to personalty. 
 
 As is pointed out, ante, pp. 225, 232, a limitation to "A., and 
 his heir," or " the heir of his body," in the singular, does not vest 
 an estate in fee or tail in A., it follows: — 
 
 Rule ^1 .—Limitation to A. for life; remainder to ^^heir''^ or 
 '^heir of his body.'' — Under a limitation to A. for life, with re- 
 mainder to his " heir " or to the " heir of his body," A. takes for 
 life only, with a contingent remainder for life to his heir, or to 
 the heir of his body; Chambers v. Taylor, 2 My. & Cr. 376. 
 
 Rule 88. — Remainder to heir of his body and the heirs or heirs 
 of the body of such heir. — Under a limitation to A. for life, with 
 remainder to the heir of his body, and the heirs, or heirs of the 
 body, of such heir, A. takes for life only, with a contingent re- 
 mainder in fee or tail to the heir of his body; Archer's Case, 1 
 Eep. 66b. 
 
 [ * 253 ] * Examples.— Limitation to A. for life, remainder to 
 his first son and the heirs male of his body, and so to 
 his sis sons, remainder to the heir male of A. to be begotten after 
 the sixth son and of his heirs male; held, that the last remainder 
 was only a contingent estate in the sou, and not tail in A.; 
 Waker v. Snowe, Palm. 359. 
 
 (a) See post. Chapter on Makeiage Articles. See p. 2:38 for limitations 
 to the heirs of a deceased person, or, in remainder, to the heirs of the grantor; 
 p. 229, for a limitation in remainder to the heirs of a living stranger; p. 237, 
 for a limitation to the heirs of the body of a deceased person, or of a living 
 person who takes no prior estate of freehold. 
 
 262
 
 "heir" in the singular — HEIRS AS PURCHASERS. * 254 
 
 In a marriage settlement, after life estates to the husband and 
 wife, there were remainders to the heir male of her body by him 
 to be begotten and his heirs mafe, and for want of such, to the 
 daiic^hters, and if there should be no issue of the marriage, to 
 the right heirs of the husband; the first remainder was held to 
 be a contingent remainder in fee to such person as should be heir 
 male of tbe°body of the wife at her death; Bcujley v. Morris,^ 
 Ves. 788. 
 
 "Heir" in the singular construed " /lew-s."— But "heir" in the 
 singular may be explained to mean " heirs " in the plural, so as 
 to be a word of limitation instead of purchase. 
 
 Feoffment to the use of A. for life, remainder to the use of B. 
 for life, remainder to the use of the heir or heirs of the body of 
 A., and to the use of such heir or heirs, and if he dies without 
 issue remainder over; held, that the heir took by descent, for 
 though " heir'' is a word of purchase, yet " heirs " explains it, 
 and makes him in bv descent of an estate tail; Bomj v. Taylor, 
 16 Yiner, 213, Parols, H. pi. 3; S. C. 2 Roll. 253. 
 
 Rule 89. — " Heirs'' as purchasers means tJie heir-at-law. — The 
 heir at common law will take under a limitation to the "heirs" 
 or " heir " as purchasers. 
 
 Examples.—" If a lease for life [of lands of the nature of 
 gavelkind] be made, the remainder to the right heirs of B., and 
 B. dieth, his eldest son only shall inherit, for he only to take by 
 purchase is right heir by the common law. So note a diversity 
 between a purchase and a descent;" Co. Lit. 10a. Mr. 
 Hargrave in his note on * this passage says: "The [*254J 
 reason seems to be that though the subject of the gift is 
 customary land, the heir at common law is presumed to be meant, 
 unless words are added to describe the customary heir. But if 
 such special words are used, the presumption fails; and then it 
 is said that though the subject of the gift is common law land, 
 yet the customary heir shall be preferred." The following are 
 cases on wills: Thorp v. Owen, 2 Sm. & Gif. 00; Roberts v. Dix- 
 ivell, 1 Atk. 607; Sladen v. Sladen, 2 J. & H. 369; Garland v. 
 Beverley, 9 Ch. D. 213 (where the land was gavelkind); Hasle- 
 ivood V. Ch^een, 28 Beav. 1 (where there was a mixed gift of realty 
 and personalty); PoUey v. Policy, 31 Beav. 363 (where the laud 
 was Borough English). 
 
 Rule 90. — ^^Heirs " as purchasers, with qualification (b). — 
 
 (6) As to heirs taking by descent with a qualification, see ante. \\ 230. 
 
 263
 
 *255 HEIRS AS PURCHASERS WITH QUALIFICATION, 
 
 Under a limitation to the " heirs " of any person, with a super- 
 added qualification, as purchasers, the heir taking by purchase 
 must possess that qualification. 
 
 See this discussed in Cholmondeley v. Clinton, 2 Mer. 172 (at 
 p. 344); 2 B. & Aid. 625; 2 Jac. & W. 1 (at pp. 77 and 106, 
 etseq.); 4 Bli. 1; Sugden, Law of Property, 114; Wrightson v. 
 Macaulay, 14 M. & W. 214; Thorpe v. Tlwrpe, 1 H. & C. 326; 
 Counden v. Clarke, Hob. 29; S. C. Moore, 860; Doe d. Winter v. 
 Perrait, 10 Bing. 198 (all cases on wills). See also Mr. Hargrave's 
 note (3), Co. Lit. 246; 2 Jarman on Wills, 65, et seq. 
 
 Observation. — ^^Heirs male of the body''^ as purchasers. — This 
 rule is subject to an important exception stated in the rule follow- 
 ing. Considerable discussion has taken place on the question 
 whether a person, taking by purchase under the description of 
 heir male or heir female of the body, must be heir general of the 
 body (c). Coke says (Co. Lit. 246): "If A. hath issue 
 [ *255 J a son and a daughter, and a lease for life be made, *the 
 remainder to the heirs females of the body of A.; A. 
 dieth, the heir female can take nothing because she is not heir." 
 In other words, in Coke's opinion, it was necessary that the heir 
 male (or female) should be a male (or female) being also heir 
 genei'al. The modern doctrine is that by heir male (or female) 
 of the body is meant the person who would have been heir in tail 
 if an estate in tail male (or in tail female) had been given to the 
 ancestor. 
 
 The distinction may be exemplified as follows : Let the gift 
 be to the heir female of the body of A. who has' a son and a 
 daughter, both of whom die in his lifetime, the daughter having 
 a son and the son having a daughter; then, according to Coke's 
 doctrine, the daughter of the son would be the heir female, be- 
 cause she would be heir general and also a female; while accord- 
 ing to the modern doctrine, there would be no heir female. As 
 another example, let the daughter leave a daughter and the son 
 leave a son; then, according to Coke, there would be no heir 
 female, for the son's son is heir general, but is not a female. But 
 according to the modern doctrine, the daughter's daughter would 
 be heir female, because she would be heir if only females could in- 
 herit; or, to use other words, she would have been heir in tail if 
 an estate in tail female had been given to the ancestor. 
 
 Rule 91. — ^^ Heirs male of the body^' as purchasers. — Under 
 a limitation to the heirs male (or female) of the body of any 
 person, the heir male (or female) of the body taking by purchase 
 need not be heir general. 
 
 (t!) See Hawkins on Wills, 169; 3 Dav. Prec. 345 (note). 
 264
 
 HEIRS OF THE BODY MEANING CHILDREN. * 257 
 
 Where in a settlement there was a limitation in remainder "to 
 the use of the heirs male of the body of A.," and A. died, leav- 
 ing his granddaughter his heir-at-law, and two sons, W., the elder, 
 and H., it was held that on W.'s death Avithout issue, H. took as 
 heir male of the body of A.; Wills v. Palmer, 5 Bur. 2G15; S. C. 
 2 Bl. Rep. 687; Fearue, C. R. 45. See ante, p. 230, note. 
 
 * Settlement of land to the use (subject to prior [ * 256 ] 
 limitations) of the sons of the intended marriage suc- 
 cessively in tail male, " and for want of such issue, to the use of 
 the heirs female of the body " of the intended husband begotten 
 on the body of the intended wife and her or their heirs, remainder 
 to the right heirs of the husband : held, that a daughter of the 
 marriage was to be preferred to the granddaughter of the son of 
 the marriage who was the testator's heir-at-law; Goodtitle d. Wes- 
 ton V. Burtenshaw, Fearne, C. K. App. 570; see Mr. Margrave's 
 note, Co. Lit. 246; 2 Jarman on Wills, 67. 
 
 Limitation to the heir (in the singular) female of the body of 
 the settlor; there being one son, heir-at-law, and four daughters; 
 held, that the daughters took; Chambers v. Taylor, 2 My. & Cr. 376. 
 
 Rule 92. — '^ Heirs of the body,^^ meaning children. — The con- 
 text may shew that the words " heirs of the body " mean " chil- 
 dren," and then they will be words of purchase, notwithstanding 
 that the parent takes a prior estate of freehold. 
 
 Examples. — Limitations to E. for life, remainder to the first 
 son of E. in tail male, with like remainders to the second, third, 
 and fourth sons in tail male, "and so severally and respectively 
 to each of the heirs male of the body of E., and the heirs males 
 of their bodies," remainder over; held,t\iat E. took an estate for 
 life only, with remainder to his sons successively in tail male; 
 Lisle V. Gray, T, Raym. 278, 315; S. C, T. Jones, 114; 2 Lev. 
 223. It is stated by Lord Hardwicke (1 Ves. Sen. 147), and by 
 Tracy, J., (IP. Wms. 90), who had searched the record, that the 
 statement that Lisle v. Gray had been reversed is erroneous. 
 
 By a marriage settlement lands were limited to the use of the 
 wife and husband successively for life, with remainder to the use 
 of the heirs of the body of the husband on the body of the wife 
 and their heirs, and if more children than one, equally 
 to be divided between them as * tenants in common, and [ *257] 
 for default of such issue, over; Jield, that the children 
 took by purchase as tenants in common in fee; North v. Martin, 
 6 Sim. 26(). 
 
 On marriage, the husband executed a deed poll whereby he 
 settled all his real and personal estate " upon the said (intended 
 wife) in case she survive me, and upon the heirs of her body by 
 me lawfully to bo begotten, obliging her to pay to each of her 
 
 • 2f)5
 
 * 258 '-heirs" applied to personalty. 
 
 children by me begotten as aforesaid, so soon as be, she, or tbey 
 attain the age of twenty-one years, the sum of £1000, and the re- 
 mainder of all I die possessed of equally at her death to divide 
 amono- her children by me begotten as aforesaid;" held, that the 
 children took as tenants in common in fee; Loivther v. The Earl of 
 Westmoreland, 1 Cox, 64. (But this seems_to have been considered 
 as a case of executory limitation, see p. 6/.) 
 
 Trusts of freeholds and leaseholds declared for H. for life, and 
 afterwards for the heirs of her body, and of J. and M. their heirs, 
 &c.; held, that H. took for life only, and that the heirs of the 
 body were purchasers; Withers \. Algood, cited Bagshaw v. Sj^en- 
 cer, 1 Ves. Sen. 150. 
 
 The rule applies to trusts of personalty also. See Sijmers v. 
 Jobson, 16 Sim. 267: Bull v. Comberbach, 25 Beav. 540; Patten- 
 den V. Hobson, 17 Jur. 406; S. C, 22 L. J. Ch. 697 (all cases on 
 wills). 
 
 ^'' Heirs'^ applied to Personalty. 
 
 Rule 93. — Gift of p^ersonalty to "A. and his heirs.^' — A gift 
 of personalty, either directly to, or by way of trust for, '• A. and 
 his heirs," is a gift to A. absolutely. 
 
 Rule 94. — Independent gift of personalty to " heirs^ — An in- 
 dependent gift of personalty, either directly to, or by way of trust 
 for the "heirs " of A., is a gift to the heir at-law of A. 
 
 Rule 95. — Substitutionary gift of personalty to 
 
 [ * 258 ] " heirs.''' — A gift of personalty to the " heirs " * of A. 
 
 in substitution for A., in the event of his death before 
 
 the time of distribution, is a gift to such of the statutory next of 
 
 kin as survive A. 
 
 The distinction between rules 94 and 95 is well explained by 
 Eomilly, M. R., in Hamilton v. Mills, 29 Beav. 193, where the 
 trusts of money were declared by deed for A. for life, afterwards 
 for B., his wife, for life, afterwards for the children of the mar- 
 riage, " and on failure of any child or children of the marriage, 
 then to the right heirs of the survivor of A. and B." Lord Romilly 
 said: " Nothing turns on the word '■heirs ' being in the plural in- 
 stead of the singular number; they may be many as well as one. 
 The question is, w^hether the words ' right heirs ' are to be treated 
 as words of description or words of sulostitution ; it is something 
 analogous to, but not the same as, the case of a devise of real 
 estate, where the question is whether the word ' heirs ' is a word 
 of limitation or purchase. I cannot say it is a word of limitation; 
 266
 
 "heirs" applied to personalty. * 259 
 
 nor is it what may be called a word of substitution. If it creates 
 a gift substituted on a failure of a prior gift, so that the real 
 rueaning of the words in the will amounts to this — that if the per- 
 son who is the principal object of the legacy should cie and not 
 be able to receive it, it is given to his right heirs, it lollows the 
 devolution of personal estate. If a legacy be given to A. or his 
 heirs, A., if he survives the testator, will be entitled to the legacy; 
 but if A. die, the word ' heirs ' is introduced to prevent a lapse, 
 and therefore the Court holds that if the first legatee does not 
 take, the same person will take as would have taken after him if 
 there had been no lapse, and that the legacy follows the devolu- 
 tion of personal estate. But when the words are descriptive and 
 not substitutional, you must follow the obvious meaning of the 
 word. Thus, if a person says ' I give a legacy to the heir male 
 of A.,' the heir takes the legacy, and A. takes nothing. It is the 
 same as if the testator said ' I give the person who is A.'s heir 
 £1000.' The only question is, to which of these two 
 classes of * cases these words belong. In all cases of [ *259j 
 substitution, the primary legatee, if he had survived the 
 testator, would have taken; but here there is no gift to the sur- 
 vivor, but the settlement expressly directs that on failure of chil- 
 dren it is to go ' to the right heirs of the survivor.' There is no 
 principle on which these words can be considered as a substitu- 
 tional gift to the ' right heirs ' of the survivors." 
 
 Examples of rules 94 and 95. — By a marriage settlement 
 £500 was assigned to trustees, on trust, with the consent of the 
 wife, to lay out the same in land of inheritance to be conveyed to 
 the trustees, in trust, to pay the rents to her for life for her sepa- 
 rate use, remainder to her husband for life, and after the death 
 of the svirvivor, on trust to convey to such persons as the wife 
 should appoint, and in default of appointment, in trust for the 
 heirs of the wife: proviso, that, until the purchase, the trustees 
 should invest in the Funds, and pay the dividends to the wife for 
 her life for her separate use, and after her death, to the persons 
 who would be entitled to the rents of the land if purchased, and 
 should pay or transfer the principal sum of £500, or the stock 
 purchased, to such person " as according to the limitations afore- 
 said might be entitled to the inheritance" of the land; held, that 
 on the death of the wife without having appointed, the £500, 
 which had not been invested in land, and therefore remained per- 
 sonal estate in equity, went to her heirat-law ; Russell v. 
 Smythies, 1 Cox, 215. 
 
 A. and B. were co-heiresses of an estate; by post-nuptial set- 
 tlement A.'s moiety was settled to the use of her husband C. for 
 life, remainder to the use of A. for life, remainder to the use of B. 
 for life, remainder to trustees for a term of years. The trusts of 
 the term were to raise £1000 and to pay it (in default of exercise 
 
 207
 
 * 2Gi "-HEIRS OF THE BCDY*' APPLIED TO PERSONALTY. 
 
 of a special power, which was not exercised), "to the next heir or 
 co-heirs" of B. A. and her husband died in the life 
 
 [ * 260 ] time of B. Held, that the heirs-at-law of B. were * en- 
 titled on B.'s death to have the £1000; Morris v. Cantle, 
 
 6 Br. P. C. 418. 
 
 I have been unable to find any case where, under the trusts of 
 
 a deed, the "heirs " took by substitution. The cases on wills are 
 
 collected in Wingfield v. Wing field, 9 Ch. D. 658; see also Keay 
 
 V. Bmdton, 25 Ch. D. 212. 
 
 " Heirs of the body " applied, to personalty. 
 
 Rule 96. — Trust for A. and the '''heirs of his body.''^ — A trust 
 of personal estate for A. and the heirs of his body, or for " A. for 
 life," with remaindei*, either mediate or immediate, to the " heirs 
 of his body," vests the property in A. absolutely. 
 
 This rule is sometimes put thus: " Expressions which, if ap- 
 plied to real estate, would confer an estate tail, shall when applied 
 to personal property, simply give the absolute interest; Wms. 
 Personal P., Pt. 4, Ch. 1, p. 315 (11th ed). See Leventhorpe v. 
 Ashbie, Koll. Abr. 831, pi. 1, S. C, Tud. L.. C. Real P., 861 
 (3rd ed). 
 
 Examples. — Term assigned by marriage settlement to trustees 
 on trust to permit T., the intended husband, to enjoy the same so 
 long as he should live, with remainder on trust for A. the in- 
 tended wife for life, and after the decease of"T. and A. to permit 
 the heirs of the bodies of T. and A. to hold the premises during 
 the remainder of the term; held, that the whole term vested in T. ; 
 Webb V. JVebb, 2 Vern. 667; S. C, 11 P. Wms. 131. 
 
 See to the same effect, Tatton v. MolUneux, Moo. 809; Thee- 
 hridge v. Kilburne, 2 Ves. Sen. 233. Consider Re Whitty, Ir. R. 
 9 Eq. 41. See the cases on wills collected, Hawkins, 188; 2 Jar- 
 man on Wills, 562. 
 
 The rule has also been applied where the words were to per- 
 mit and suffer A. to receive the rents, &c., for so 
 [ * 261 ] * many years of the term as sho^dd expire in his life 
 time, and after his decease in trust to permit B., A.'s 
 wife, to receive the rents during her life, and after the several de 
 ceases of A. and B. to permit the heirs of the body of A. to re- 
 ceive the rents for so many years of the term as should expire in 
 the life or lives of him, her, or them respectively; Bartlett v. 
 Ch^een, 13 Sim. 218; S. C, 12 L. J. (N. S.) Ch. 149. 
 
 Gift over on failure of issue. — The rule is not affected by a gift 
 
 268
 
 •'HEIRS OF THE BODY" APPLIED TO PERSONALTY. * 262 
 
 over on general failure of issue of the propositus; Bartlett v. 
 Green, 13 Siru. 218; Theebrklge v. Kilburn, 2 Ves. Sen. 233. 
 
 ^^Heir" in simjuku: — The rule does not apply where the word 
 is "heir" in the singular; LeRoiisseau v. Rede, 2 Ed. 1. 
 
 First Exception. — '^ Heiis of the body''' tlieir executors. — 
 "Where there are words of limitation to the executors of the heirs 
 of the body, the latter take by purchase; Hodgson v. Bussy, Barn. 
 Ch. Rep. 195; S. C, 2 Atk. 89, cited as Hodsel v. Bussy, 2 Ves. 
 Sen. 646. 
 
 Second Exception. — Executory trust. — Where there is an exe- 
 cutory trust for the heirs of the body; see Chapter on Marriage 
 Articles, j^ost. 
 
 Third Exception. — " Heirs of the body " construed by context. 
 — The context may shew that " heirs of the body " are words of 
 purchase; Withers v. Algood, cited in Bagshaw v. Spencer. 1 Ves. 
 Sen. 150, where the words were "to A. for life, and afterwards to 
 the heirs of his body, and of J. and M., their heirs, &c." 
 
 Fourth Exception. — Heirs of the ivife's body taking husband's 
 property. — Apparently where the trusts are contained in a marriage 
 settlement, and the property is the husband's, and the 
 heirs are to proceed * from the body of the wife, the [ * 262 ] 
 heirs take as purchasers. See the case where the prop- 
 erty belongs to the wife's father, discussed in Fearne, Posth. 
 Works, 388, et seq. 
 
 Example. — Where by a marriage settlement, a term belonging 
 to the husband (see 1 P. Wms. 134), was assigned to trustees on 
 trust " to permit and suffer the husband and wife, aad the sur- 
 vivor of them, to receive the protits for so many years of the term 
 as they or the survivor of them should happen to live, and after 
 their deaths to the use of the heirs of the body of the wife by the 
 husband to be begotten;" held, that the " heirs of the body " took 
 by purchase, it being considered as analogous to the case of a wife 
 tenant in tail, ex provisione viri under 11 H. 7, c. 20; Peacock v. 
 Spooner, 2 Vern. 195; S C, Freem. Ch. Rep. 114; and cited 1 
 P. Wms. 134. This case was followed in Dafforn v. (jloodnian. 2 
 Vern. 362; S. C, sub nom. Dafferne v. Bolt, Prec. Ch. 96. See 
 these cases discussed, Fearne, C. R. 493. 
 
 Fifth Exception. — Where ancestor takes a tc'^n of years only. 
 
 269
 
 * 263 '"HEIRS OF THE BODY" APPLIED TO PERSONALTY. 
 
 — It has been held in one case that where the trust for the an- 
 cestor was for " ninety-nine years if he should so long live," the 
 children took by purchase; Ward v. Bradley, 2 Vern. 23, cited 1 
 P. Wms. 134. 
 
 Sixth Exception. — '^Heirs'' meaning children. — The context 
 may show that by ''heirs" is meant children. ,See a^ite. Rule 92, 
 p. 256. 
 
 Rule 97. — Trust in remainder for fieirs of the body. — A trust 
 of personalty for the " heirs of the body," in remainder after the 
 death of the ancestor, vests in such of his statutory next of kin as 
 descend from and survive him. 
 
 Examples.— In Ward v. Bradley, supra, 2 Vern. 23, where the 
 trusts of personalty were for A. for ninety-nine years if he lived 
 so long, then to his wife for life, remainder to the heirs 
 [*263] of A. begotten on his wife; it *was held, that on the 
 death of A., the children who survived him took equally. 
 In order to understand this case the report in Vernon and the 
 citation in 1 P. Wms. 134, must be compared. It will be ob- 
 served that the decision in W^ard v. Bradley does not show that 
 a child in order to take must survive the propositus; but the rea- 
 soning in Re Jeaffreson^s Trusts, L. R. 2 Eq. 276, seems to show 
 that the rule as above laid down is correct. 
 
 270
 
 USES, HOW CREATED. * 265 
 
 *CHAPTER XVIII. [ * 264 ] 
 
 USES («)— ESTATES OF TRUSTEES. 
 
 Use, by ichat ivords created : Use on use : To use of A. yielding 
 rent to B. : Where grantee to uses and cestui que use iJie 
 same person : Use limited less than estate of grantee to uses : 
 Limitation in tail to uses: Whei-e trustees take legal estate: 
 Active and passive trusts: ^^ Pay to or permit to receive :^^ 
 Legal estate of trustees not enlarged or diminished : Equita- 
 ble limitations. 
 
 Rule 98. — Use, hoiv created. — No special form of -words is 
 necessary to create a use; see Fox^s Case, 8 Rep. 936; 1 Sanders, 
 Us., cb. 2, s. 2 (3); Coultman v. Senhouse, T, Jones, 105. See 
 2nd Instit. 672. 
 
 Examples— (1) Uses raised. — A. made a feoffment in fee, 
 sub conditione, ed intentione that bis wife sbould bave tbe land 
 for ber life, witb remainder to bis younger son in fee; held, tbat 
 it was not a condition but an estate wbicb was presently executed 
 according to tbe intent; Anon., 4 Leon. 2 (pi. 3). 
 
 Fine levied to four, and by indenture between tbe parties to 
 tbe fine it was declared tbat tbe said fine was levied ed intentione 
 tbat tbe conusees sbould make an estate of tbe said 
 land to sucb a person wbicb tbe * conusor sbould name; [*26r)] 
 witb a proviso tbat tbe conusees sbould not be seised to 
 any otber use but to tbat wbicb was specified before, and tbat 
 tbe conusees sbould not encumber tbe said land; held, tbat tbe 
 conusees were seised to tbeir own iise until tbe conusor make 
 nomination, and if be die witbout any nomination, tben tbe use 
 sbould vest in bis beir; Bettuan's Case, 4 Leon. 22. 
 
 Cbarter of feofifment, Boydell to Tbomas and Randoll Crew; 
 
 (a) As to the consideration necessary for raising a use, see (oifc. p. 145); as 
 to the exploded doctrine that deeds to uses are to he construed ditlerently 
 from conmion hiw conveyances, see 1 Sanders. Us., Ch. 2, s. 4, pi. \'2:1 d .svy/. 
 (.5th ed.). and 4 Cruise Dig. Tit. .\x.\ii. Ch. xx. a. G9 d 8cq., and the casea 
 there cited. 
 
 271
 
 * 266 USES, HOW CREATED. 
 
 and by aa indenture of even date between the feoffees and feoflPor, 
 after reciting the charter of feoffment, it is witnessed that im- 
 mediately after the feoffees, their heirs and assigns, had enjoyed 
 the land for 101 years, that then it should be lawful for the 
 feoffor and his heirs to re enter. The two deeds had several labels 
 which were joined together in one seal. Held, that it was the jn^ 
 tent of the feofPment that the feoffor should have the land again 
 after the 101 years, and that the intent is the use of the feoff"- 
 ment; Boijdell v. Walthall, Moo. 722. 
 
 " If a man covenants for consideration to be seised to the use 
 of himself for life, and after to the use of his son, but he further 
 says, that his meaning is his wife shall have it for her life, this 
 is not a void clause, but good to the wife; " per Periam, J., Carter 
 V. Kungstead, Ow. 84. 
 
 " Forasmuch as the intention of the parties is the ci'eation of 
 uses, if by any clause in the deed it appears that the intent of the 
 parties was to pass it in possession by the common law, there no 
 use shall be raised;" Fox's Case, 8 Rep. 94a. 
 
 "Now it is not necessary in declaring a use, if there be trans- 
 mutation of possession, to use the very word use. Any expression 
 whereby the mind of the party may be known that such a one 
 shall have the land, is sufficient. . . . Now in this case, here is 
 an agreement between the husband and wife, which, though void 
 as an agreement, yet is good to declare a use. As suppose a man 
 at this day make abargain and sale, and the deed is not inrolled, 
 or make a charter of feoffment and there is no livery, 
 [ * 266 ] yet they will * be sufficient to declare the use of a tine 
 afterwards levied between the same parties; " per Holt, 
 C. J., Jones V. Morleij, 12 Mod. 162, 163. 
 
 B., being mortgagee in fee simple of certain lands, and the 
 equity of redemption belonging to A., B. and A. released to H. 
 in fee by way of mortgage subject to a proviso for redemption in 
 favour of A., with power of sale to H. (the new mortgagee). The 
 deed contained a proviso for quiet enjoyment by A. till default, 
 and a proviso that " if at any time hereafter, when and so soon 
 as H. and every other person claiming or to claim by, from, 
 through, or under him, shall, under or by virtue of any power or 
 authority herein contained, enter into orupon or shall otherwise 
 become possessed of the said premises or any part thereof, the 
 same shall from thenceforth be subjected and charged to and with 
 the payment to A., his heirs and assigns, of the annual sum of 
 £40, and the same shall become recoverable by distress or other- 
 wise upon or out of the mortgaged premises." H. did not exe- 
 cute the deed. H. entered into possession. Held, that, though 
 the £40 a year, since it was charged in favour of a person who 
 had no legal estate in the land, was not a rent reserved at com- 
 mon law, still it was well created as a rent by the limitation of a 
 use; Gilbertson v. Richards, 4 H. & N. 277; S. C, 5 H. & N. 453. 
 272
 
 USE ON A USE. * 267 
 
 Examples — (2) Uses not raised. — Covenant by a father on 
 the marriage of his son not to alienate, but that the lands shall 
 descend to the use of the son aud the heirs male of his body; 1, 
 Anders. 25 (pi. 55); S. C, Beudl. 121 (pi. 153); S. C, 8 Leon. 
 6 (pi. xviii. ), where it is stated that the father was cestui que use 
 in tail. 
 
 Covenant by a man seised of land, on the marriage of his son, 
 that the land shall after his death remain and be to his .son and 
 his intended wife and the heirs of the son, to the use of the son 
 and his intended wife and to the heirs of the son; held, no use; 
 Buckler v. Symoiis, 22 Viner, p. 211, Uses (O. 4). pi. 1: S. C, 2 
 Eoll. Ab. 788. 
 
 * Rule 99. — Use on a use. — A use cannot be limited [ * 267 ] 
 on a use;'' Sand Us., ch. 2, s. 8 (6), p. 275 (5th ed.) 
 
 Bargain and sale for value enrolled, " to G., habendum to G. 
 and his heirs, to the use of J. for life, remainder to the use of G. 
 and the heirs of his body, remainder to the use of the heirs of 
 J.;" held, that the limitation of uses was void at law; TyrreVs 
 Case, 2 Dy. 155a, pi. 20. 
 
 One enfeoffed his two sons to the use of himself for life, after 
 to the use of them and their heirs ad ultimam voluntateui suam 
 perimplendam, and afterwai'ds devised in fee; held at law, that 
 the devisee should not have the land, because a use cannot be 
 limited on a use, so that, "when he limits it to the use of his sons 
 and their heirs, he cannot afterwards limit it to the uses of his 
 last v/ill; " Girland v. Sharp, Cro. Eliz. 382. 
 
 Convej-^ance by lease and release to W. and E. and their heirs, 
 habendum unto W. and E., their heirs and assigns, to the use of 
 "W. and E., their heirs and assigns, to the uses, &c. ; held, that 
 though W. and E. were, under the following rule, in at common 
 law, still they took the legal estate, and that the uses following 
 gave equitable interest only; Doe d. Lloyd v. Passingham, 6 B. «& 
 C. 805; see also Whetstone v. Saintsbury, 2 P. "NVms. J 46. 
 
 ~* The strict rule adopted in Tyrrell'.s case that a use limited upon a use 
 •will not be executed has been disapproved in some of the American cases, 
 and the general tendency of the courts in this country is in the direction of 
 giving a liberal ell'ect to the statute of uses. Thatcher c. Omans, o Pick. 
 (Mas.s.) .528; 1 Greenleafs Cruise on Real Prop. 3.')3 note; Perry on Trusts, 
 sec. 302. But in some of the states the strict rule is adhered to. Jackson 
 r. Carev, 16 .Johns. (N. Y.) 302; .Jack.son v. Mvers. 3 .Tohns. (N. Y.) 3!JG; 
 Price r.^Siason, 2 Beas. (N. .1.) IT:*.; Croxel v. Shererd. ."> Wall. 2H2. Thus it 
 was held in Guest r. Farley, 11) .Mo. 117. that -where a )isc was limited uimu 
 a deed or bargain and sale, it was not executed (!ven though the considera- 
 tion moved from the cestui que itse. But where there are active duties to be 
 performed by the trustee the use will not be executed. Morton r. Barrett, 
 22 Me. 201- Chapin v. Universalist Hoc, 8 Gray (Ma.ss.), uW); Exeter r. 
 Odiome. 1 N. H. 2:52; Liggett r. Perkins, 2 Comst, (N. Y.) 2!)7 Barnett's 
 Appeal. 43 Pa. St. 392; A.shur.st v. Given, 5 W. & S. (Pa.1 :W7: Stanley i;. 
 Colt, 5 Wallace, 11». 
 
 18 IXTERPRKTATIOX OK DKKIW. 273
 
 *268 GRANTEE AND CESTUI QUE USE THE SAME. 
 
 Exception. — To use of A., yielding rent to B. — Where land is 
 limited to the use of A. and his heirs, yielding a rent to B. and 
 his heirs, the rent is well created byway of use under the statute; 
 Lord CromwelVs Case, 2 Rep. 69a; Gilbertson v. Richards, 4 H. 
 & N. 277, at 296; S. C, 5H. & N. 453; ante, p. 266. 
 
 Rule 100. — Uses declared on A.'s seisin in favour of A.— 
 Where in a conveyance at Common Law to A., uses are de- 
 clared on A.'s seisin in favour of A. himself, A. is in by the Com- 
 mon Law, not by the Statute of Uses, unless the estate declared 
 
 in A.'s favour by the uses is less than that which A. takes 
 [*268 ] at Common Law; in which *case the uses are executed 
 
 by the Statute; Sand. Us. ch. 2, s. 2, p. 89 (5th ed.). 
 
 Examples. — Gift of land to husband and wife, habendum to 
 husband and wife to the use of them and the heirs of their bodies; 
 held, that they took an estate tail, on the ground that it was not a 
 use executed by the statute, in which case the estate given by the 
 use could not be more than the estate out of which it was de- 
 rived, but was a limitation of the estate to them and the heirs of 
 their two bodies, and they were in by the common law; Jenkins 
 V. Young, Cro. Car. 230; S. C, W\ Jo. 253, pi. 3, and sub nom. 
 Meredith v. Joans, Cro. Car. 244; see also Younge v. Dyniock, Dy. 
 186a (pi. 1), note. 
 
 Fine levied with declaration of use to the conusee and his heirs; 
 held, that he was in at common law, not by the statute; Longv. 
 Buckeridge, 1 Stra. 106; and per Holt, C.J., Altham v. Anglesey, 
 Gilb. 16. 
 
 Fine levied to the use of C. and his heirs till a marriage should 
 take effect, and then to the use of the wife, remainder to the use 
 of the conusees and their heirs during the life of C, in trust to 
 preserve contingent remainders, and that they should permit him 
 to receive the profits, then to the use of C.'s first and other sons 
 by a certain wife in tail, then to the use of the heirs males of C.'s 
 body with remainders over; held, that the conusees took by the 
 Statute of Uses, " because the limitation of the use is different 
 from the estate of the land, as where a feoffment is made to the 
 use of the feoffee for life, remainder to J. S , the feoffee is in by 
 the statute. Feoffment to A. and his heirs, to the use of A. and 
 B., and his heirs, they are joint tenants; the difference is that 
 where the last fee sirnple of the use is limited to him who hath 
 the estate in the land, he is in by the common law, as in the case 
 Inst. 226, where a feoff"ment is to the ttse of the feoffer in tail, 
 and after to the use of the feoffee in fee;" Tipping \. Cosins, 
 Comb. 312; S. C, Carth. 272; 4 Mod. 380; Holt, 731. 
 274
 
 GRANTEE AND CESTUI QUE USE THE SAME. * 270 
 
 FeoflPment, in consideration of a sum paid by the 
 * feoffees, habendum to the feoffees and theii- heirs for [ * 269 ] 
 ever, to the use of the feoffees for ever; with a clause of 
 warranty to the feofifees. their heirs and assigns ni formci prce- 
 dicta: held, that they took for life only, 'Wilkes v. Leiiso)i, Dy. 
 1(39 (a), pi. 21. 
 
 A , B., and C. being tenants in common in tail, B. released to 
 
 A. and C. and their heirs his share, habendum to them, their 
 heirs and assigns, as tenants in common, and not as joint ten- 
 ants, to the use of them, their heirs and assigns. It was admit- 
 ted that though, if the use had been executed by the statute, they 
 would have been joint tenants, yet, as they were in at common 
 law, thev took as tenants in common; Doe d. Hutchinson v. Prest- 
 ividge, 4 M. & S. 178. 
 
 M., a tenant in tail in possession of real estate, executed a 
 deed inroUed as a disentailing assurance, by which he granted it 
 to A. and B. and their heirs, free from all his estates tail, to the 
 use of A. and B. and their heirs, in trust for the grantor. A. and 
 
 B. did not execute the deed, and subsequently executed a dis- 
 claimer. Held, that the disentailing deed operated at common 
 law, not under the statute, and therefore was rendered inopera- 
 tive by the disclaimer; Peacock v. Eastland, L. R. 10 Eq. 17. 
 
 A., seised in fee, by indenture grants a rentcharge to "B., C, 
 D, and their heirs," habendum "unto the said B., C, and D., 
 their heirs and assigns, to the use of the said B., C, and D., their 
 heirs and assigns for ever as tenants in common in equal shares; 
 held, that the use being specific, and not inconsistent with the 
 habendum, the whole habendum must be read as specific, and, so 
 read, the deed operated as a grant at common law, not under the 
 Statute of Uses: Grove, J. (at p. 289), said, "If the estate is 
 changed the use is executed by the statute; if the estate is the 
 same, the grant takes effect by the common law;" Onne\s Case, 
 L. R. 8 C. P. 281. 
 
 Release by freeholder to a copyholder " unto the said J. S., 
 habendum unto J. S. and G. S., their heirs and assigns, 
 to the use of J. S. and G. S., their heirs and * assigns [* 270] 
 for ever;" held, that though, as G. S. was not named in 
 the premises, he could take nothing in the habendum, yet the use 
 limited to J. S. and G. S. and their heirs is good. And it was 
 said (56) that, "if a man maketh a feoffment in fee to one, to 
 the use of him and the heirs of his body; in this case, for the 
 benefit of the issue, the statute according to the limitation of the 
 uses, divests the estate vested in him by the common law, and 
 executes the same in himself l)y force of the statute, and yet the 
 same is out of the words of the statute of 27 H. 8, which are, 
 where any person, &c , stand or be seised, &c., to the use of any 
 other person; and here he is seised to the use of himself: and the 
 other clause is, where divers and many persons, &c., be jointly 
 
 275
 
 * 271 WHERE TRUSTEES TAKE THE LEGAL ESTATE. 
 
 seised, &c., to the use of any of them, &e.; and in this case A. is 
 sole seised: but the statute of 27 H. 8 hath been always benefi- 
 cially expounded, to satisfy the intention of the parties, which is 
 the direction of the use according to the rule of the law. So if 
 a man, seised of lands in fee simple, by deed covenants with 
 another, that he and his heirs will stand seised of the same land, 
 to the use of himself and the heirs of his body, or unto the use 
 of himself for life, the remainder over in fee; in. that case, by the 
 operation of the statute, the estate which he hath at the common 
 law is divested, and a new estate vested in himself, according to 
 the limitation of the use;" Samme's Case, 13 Rep. 54. See also 
 Wats v. Ognell, Noy, 124; Reading v. Norris, Dy. 200a, note. 
 
 Rule 101. — Where grantee to uses and cestui que use are not 
 the same person, and the estate of the grantee to uses is less than 
 the estate declared by the uses, the latter will determine with the 
 former; 1 Sand. Us., ch. 2, s. 2 (5), p. 107 (5th ed.). 
 
 " Where an estate is limited to one, and the use to a stranger, 
 there the use shall not be more than the estate out of which it is 
 
 derived;" Jenkins v. Young, Cro, Car. 230. 
 
 [ * 271 ] *Exainples. — Laud given to two, habendum to them 
 
 for the term of their lives and that of the longer liver of 
 
 them, to the use of A. for the term of his life; held, that the 
 
 estate of A. determined on the death of the survivor of the two: 
 
 .Anon., Dy. 186a, pi. 1; Shep. Touch. 106. 
 
 Observation. — The rule does not apply where the grantee to 
 uses is also the ce.^tui que use: see Jenkins v. Young, Cro. Car. 
 230; S. C, W. Jo. 253, pi. 3, and sub nom. Meredith \. Joans, Cro. 
 Car.' 244. 
 
 Limitation in tail to tises. — There is some difference of opinion 
 as to whether, where a limitation is made in tail to uses, the uses 
 will take effect or not. 
 
 The learning on this question, which is now of but little im- 
 portance, will be found in Co. Lit. 196; CromwelVs Case, 2 Rep. 
 69a (see 78a); Cowper v. Frankline, 3 Buls. 184; S. C, sub nom. 
 Cooper v. Frajiklin, Cro. Jac. 400; S. C, sub nom. Franklin's 
 Case, Godb. 269; Viner, Uses, C, pi. (2), pl.(3); Shep. Touch. 516. 
 
 See, on the analogous question as to what is the effect of a 
 covenant by tenant in tail to stand seised to uses, Machil v. 
 Clerk, 7 Mod. 18, and the cases there referred to. 
 
 Rule 102." — Whentrustees take legal estate. — Where the legal 
 
 '^ In the case of active trusts tlie rule is generally the same in the United 
 States as in England, and the trust will not be executed. JNIorton v. Barrett, 
 
 276
 
 WHERE TRUSTEES TAKE THE LEGAL ESTATE. * 272 
 
 estate is vested at Commou Law in trustees, on trusts for the bene- 
 lit of another which require the active performance by them of 
 some duties, such as to pay the rents and profits to another, to 
 pay debts, to keep in repair, or the like, they retain the legal 
 estate; but, on the other hand, if they have to perform no active 
 duties, but merely to allow A. to receive the rents and profits, A. 
 takes the legal estate; see Shep. Touch. 506, 527; Lewin on Trusts, 
 Ch. XII. s. 1, p. 192 (7th ed.). 
 
 Examples. — Feoffment in fee to the use of the feofPor 
 * for life, aud after his decease that A. should take the [ * 272 ] 
 profits; the use is executed in A. But, on the contrary, 
 if he said that after his death the feofiees should receive the pro- 
 fits and pay them to A., the use would not be executed in A., be- 
 cause he could only have the profits by the hands of the feoffees; 
 30 H. 8, Bro. Abr. Feffements al. Uses, 340, pi. 52. 
 
 Conveyance in a marriage settlement to R. and J. and their 
 heirs upon the trusts and for the uses, &c., that is to say, in trust 
 for P. (the intended husband) and his heirs till marriage, and 
 then in trust to permit and suffer M. (the intended wife) and her 
 assigns during her life, and notwithstanding her coverture, to re- 
 ceive and take the issues and profits thereof to aud for her aud 
 their own sole and separate use free from the debts, control, and 
 
 2-2 Me. 261; Exeter v. Ordiorne, 1 N. H. 2.32; Stanley i'. Colt, 5 Wall. (U. S.) ■ 
 119; Ashurst v. Given, 5 W. & S. (Pa.) .327; Leggett ?'. Perkins, 2 Conist. (N. 
 Y. ) 2it7; Chapin r. Universalist Soc, 8 Gray (Mass.), 580. A trust -which at 
 the time of its creation is a passive trust will be executed by the statute of 
 uses, the mere circumstance that the word "trust" is used instead of the 
 word '■ use " making no difference. But where a trust which has once been 
 active becomes passive, or where for any reason the trustee bcc^omes the 
 holder of a mere dry legal estate, such a trust is not necessarily executed by 
 the statute, but the legal title may remain in the dry trustee. If the mere 
 fact that the trustee had active duties to perform was the only circumstance 
 that had prevented the statute from operating, the trust will be executed 
 when the active duties have ceased. Welles r. Castles, 3 Gray (Mass.), 323; 
 Liptrot r. Holmes, 1 Kelly (Ga.), ;!81. Hut if the non-cxccution of the trust 
 did not originally and solely de])end upon the activity of the trust, the fact 
 that the trust has ceased to be active will not of itself cause the statute to 
 apply. Under such circumstances, however, the trustee is ])oun(l to convey 
 the legal title at the recjuest of the cestui r/iietruftf. Healy r. Alston, 25 Miss. 
 11)2; Leonard's Lessee yl Diamond, :>1 Aid. 541; Sherman r. Dodge, 28 Vt. 
 30. .Vnd after great lapse of time, and in support of long-continued jmsses- 
 sion on the part of tlie ])erson holding the beneficial title, such conveyance 
 will he presumed. Mathews r. Ward, 10 (!ill c^ .Tohns. fMd.) 113; Leonard'.s 
 Lessee./-. Diamond. 31 Md. 511; .fackson r. Pierce, 2 .Johns. (N. V.J 226; 
 Ailken c. Smith, 1 Sneed (Tcnn.), liOl; lUsjjham's iMiuity, sec. .55. 
 
 In several states, as New York. J.ouisana. Michigan and Wisconsin, trusts 
 have been abolished except within \-ery narrow limits. Iti Wisconsin, liow- 
 ever, it has l)ecn held that only ])assiv(! trusts were abolished by the statute, 
 and that active tru.st.s may still be created. CJoodricli *'. City of Milwaukee, 
 24 Wis. 129. 
 
 277
 
 * 273 ESTATE OF TRUSTEES NOT AFFECTED BY TRUSTS. 
 
 engagements of P., and her receipts alone notwithstanding cover- 
 ture to be good and sufficient discharges for the same, and after 
 her death in trust for P. and his assigns for life, and after the 
 death of the survivor, in trust for the children of P. by M. as they 
 should appoint. P. and M. appoint to such uses as their son F. 
 should appoint; F. appoints the remainder in fee. Held, on eject- 
 ment after the deaths of P. and M., that all the estates of the 
 beneficiaries under the settlement, with the possible exception of 
 that of M., were legal; Nash v. Ash, 1 H. and C. 160. In this 
 case it was not necessary to determine the nature of the estate of 
 the wife, but the following case shows the distinction between a 
 mere trust for the separate use of a married woman during her 
 life, which gives her the legal estate, and a trust to pay the rents 
 to her for her separate use during her life, which leaves the legal 
 estate in the trustees (see Blaker v. Anscombe, 1 Bos. & P. N. R. 
 25). 
 
 Limitations to separate use of married ivomen. — Conveyance by 
 settlement (lease and release) on marriage to trustees and their 
 heirs to the use of A., the intended wife, her heirs and assigns till 
 the marriage, and afterwards in trust for A. and her assigns dur- 
 ino- her life for her own sole and separate use independent of the 
 intended husband, his debts, control, and engagements, 
 [ * 273 ] * with remainders over; hehJ, that the wife took the legal 
 estate; Parke, B., said, " We cannot collect clearly, from 
 the words of the deed, that they intended to give the trustees an 
 active trust, to exclude the husband from control, by giving the 
 estate to the trustees in order to pay over the rents and profits to 
 the wife. The limitation to her sole and separate use is therefore 
 void at law, and the use is executed in the wife although the hus- 
 band is a trustee for her in equity;" Williams v. Waters, 14 M. 
 & W. 166. See the remarks on this case in Williams on Settle- 
 ments, 53. 
 
 See the cases on Wills collected in the notes to 2W^ms. Saund. 
 lib, et seq. (vol. 2, p. 55, ed. 1871); 3 Bythewood by Jarman, 227; 
 11 ib. 392; 2 Jarm. on Wills, 289, et seq.; Hawkins on Wills, UO. 
 
 "Pay to or permit to receive.-^ — I have been unable to find any 
 case on a deed where the trust was " to pay unto or permit and 
 suffer A. to receive" the rents. In Doe d. Leicester v. Biggs, 2 
 Taunt. 109, where these words occurred in a will, it was held that 
 they gave the legal estate to the cestui que trust, on the ground 
 that the words "permit and suffer" followed the words "to pay 
 unto," and that (6), where there is a repugoancy, the first words 
 in a deed, and the last words in a will, prevail. If this reason- 
 ing holds good, these words occurring in a deed would leave the 
 leo-al estate in the trustees. See also Baker v. White, L. R. 20 
 Eq. 166. 
 
 (6) See ante, rule 20, p. 91. 
 
 278
 
 ESTATE OF TRUSTEES NOT AFFECTED BY TRUSTS. * 275 
 
 Rule 103.— Legal estate of trustees not enlarged or diminished 
 by nature of trusts. — The legal estate limited to trustees will not 
 be enlarged or diminished by the circumstance that the nature of 
 the trusts requires a larger, or would be satisHed by a smaller, 
 estate. {Contra in the case of a will before 1838; Hawkins on 
 Wills, 143,) 
 
 Examples. — The uses of recovery were declared to be to 
 the use of B. and H., their heirs and assigns, during 
 *the life of S., in trust to pay the rents as she shoukl, [ * -T4] 
 notwithstanding coverture, appoint, with remainder to 
 the use of her children as she should appoint, and in default to 
 the use of the children as tenants in common in tail with cross re- 
 mainders; held, that the estate par autre vie of the trustees could 
 not be considered as commensurate with the limitations of the 
 settlement. Heath, J., said, " There is a distinction between limi- 
 tations by settlement and limitations by will; in the latter case 
 they are construed according to the intention of the testator, and 
 then the trustees, under a limitation of this sort, might be con- 
 sidered as having an estate commensurate with the subsequent 
 limitations; but that mode of construction cannot be applied to a 
 limitation by settlement;" Blaker v. Ansconibe, 1 Bos. & Pul. N 
 R. 25. 
 
 The uses of a recovery were declared to be to the use of S. for 
 life, remainder to the use of L. and E. and their heirs during the 
 life of S., in trust to support contingent remainders, remainder to 
 the use of H. for life, remainder to the use of L. and E. and their 
 heirs, in trust to support contingent remainders, with remainders 
 over in tail, with remainder to such uses as H. should appoint; 
 held, that the second limitation to L. and E. gave them an estate 
 in fee simple; Venables v. Morris, 7 T. R. 342, 438; and see the 
 remarks of Lord Kenyon, C. J., in Doe d. Lee Compere v. Hicks, 
 7 T. R. at p. 437, where he says that it was necessary that the fee 
 should be in the trustees so as to support any contingent re- 
 mainders limited under the power. Query, is not the decision 
 right but the reason given for it wrong? 
 
 Power in a will for tenants for life to appoint to trustees, upon trust 
 to raise and pay a jointure. The tenant for life by deed appointed 
 to trustees to hold to them and their heirs, upon trust to raise and 
 pay the jointure. The Court of King's Bench certified, on a case 
 sent from Chancery, that the trustees took an estate in fee simple; 
 Tr?//.7tam v. lF//A:/ta//i, 11 East, 458. The Court of Common Pleas 
 was of opinion that the trustees took no estate; Wykhamv. 
 Wykham, 3 Taunt. 310. *Held, by the Court of Chancery, [ * 275 ] 
 that they took an estate in fee simple; Wykham v. Wykham, 
 18 Ves. 395. Lord Eldon, C, said (at p. 420)," If you look to the 
 executing instrument itself, it purj)ort8 to be a grant in fee; and 
 
 270
 
 * 276 ESTATE OF TRUSTEES CUT DOWN BY CONTEXT. 
 
 it is a deed. It purports to be a grant in fee for purposes cer- 
 tainly not requiring a fee, but still it purports to be a grant in 
 fee; and it is, I think, difficult to maintain that, if a man does 
 more, by using words which have a legal effect, than is necessary 
 to execute the purpose he professes to execute, the circumstance 
 that he uses those words of larger legal effect than is required, 
 and his purpose, shall cut down the legal effect of the words in 
 a deed." 
 
 Conveyance in marriage settlement to B. and his heirs, to the 
 uses following, that is to say, to the use of C. for life, remainder 
 to the use of his widow for life, remainder (in the events that 
 happened) to the use of B., his heirs and assigns, on trust to take 
 the rents and pay them to M. for life for her separate use, re- 
 mainder as M. shall by will appoint; in default to the use of the 
 heirs and assigns of M. ; held, that nothing in the deed cut down 
 the legal estate given to B. ; Cooper v. Kynock, L. R. 7 Ch. 398. 
 
 ^^ Trustees and their heirs''^ to preserve. — It has been argued 
 that, where there is a limitation to trustees and their heirs gener- 
 ally, on trust to preserve contingent remainders, and in a subse- 
 quent part of the deed there is a limitation to the same trustees 
 in fee, the estate of the trustees must be cut down to an estate 
 p\ir autre vie during the estate of the tenant for life; but this 
 construction has not prevailed, apparently on the ground that 
 there is no such inconsistency in repeating the limitation of an 
 estate in fee simple as to render it clear that the words could not 
 bear their ordinary meaning; Colniore v. Tyndall, 2 Y. & J. 605; 
 Leivis V. Rees, 3 K. & J. 132. 
 
 Exception. — Limitation to trustees and their heirs cut doivn by 
 context. — Where there is a limitation to trustees and their heirs 
 generally, and the object of that limitation ceases with 
 [ * 276 ] the life of the tenant * for life, and there is a subse- 
 quent limitation to the same trustees for an estate which 
 would be inconsistent with their taking an estate in fee simple 
 absolute by the former limitation, such limitation will be cut 
 down to an estate pur autre vie. 
 
 Examples. — Conveyance to P. and J. and their heirs, to ihe 
 use of M. for life, remainder to the use of E. if she continued 
 unmarried, but if she should marry, to the use of P. and J. and 
 their heirs, on trust out of the rents to pay an annuity to E. dur- 
 ing ner life, and with the rest of the rpnts and profits "to maintain 
 the children of M. and E., remainder after the several deceases of 
 M. and E., to the iise of P. and J., their executors, &c., for 1000 
 years, remainders over; held, that the estate in fee in P. and J., 
 must be cut down to an estate during the life of E., as the sub- 
 280
 
 EQUITABLE LIMITATIONS. * 277 
 
 sequent limitation of a term to them was inconsistent with their 
 taking an estate in fee simple absohite; Curtis v. Price, 12 Yes. 
 89 (see 3 K. & J. 145, 148). 
 
 Limitation to the use of W. for life, remainder to the use of 
 N. and B. and their heirs on trust to preserve, remainder to the 
 use of R. for life, remainder to the use of N. and B. their executors, 
 &c., for the term of 500 years, remainder to tue use of J. for life, 
 remainder to the use of N. and B. and their heirs during the life 
 of J., with remainders ovei-; held, that the estate limited to the 
 trustees in fee must be cut down to an estate pur autre vie, dur- 
 inc^ the life of W. ; Beaumont v. Marquis of Salisbury, 19 Beav. 
 198. 
 
 Rule 104. — Equitable limitations. — An equitable limitation by 
 way of trust executed has the same construction as a legal limita- 
 tion. 
 
 "Any legal conveyance or assurance by acestid que trust, shall 
 have the same effect and operation upon the trust as it 
 should have had upon the estate in law in case * the [ * 277 ] 
 trustees had executed their trust; " North v. Champer- 
 noon, 2 Ca. Ch. 78. 
 
 See per Lord Northington in Austen v. Taylor, 1 Ed. 368; 
 Ambl. 378; cited by Plunket, C, in Herbert v. Blunden, 1 Dr. & 
 Wal. 91; and per Lord Mansfield, C.J., in Burgess v. Wheate, 1 
 Ed. 224; Lewin on Trusts, Ch. VIIL, 7th ed. p. 99. 
 
 Examples. — By the marriage settlement of a widow having 
 children, real estate was conveyed by her to a trustee in fee, upon 
 trust for her separate use for life, with remainder in trust for her 
 children as tenants in common, without any words of limitation; 
 held, that the children took estates for life only: Holliday v. 
 Overton, 15 Beav. 480; S. C. on App. 1(3 Jur. 751. 
 
 Realty conveyed by marriage settlement to the use of trustees 
 and their heirs upon trust for the wife and husband successively 
 for life, and afterwards for the children, and in default as the 
 wife should appoint, and in default for her next of kin, without 
 any words of limitation. There were no children, and the wife 
 made no appointment. Held, that the next of kin took for life 
 only; Lucas v. Brandreth (No. 2); 28 Beav. 274. 
 
 Post nuptial settlement vesting freeholds, copyholds, and lease- 
 holds in trustees in fee, upon trust to permit the settlor's wife to 
 receive the rents during the joint lives of her and the settlor and 
 during her widowhood, and afterwards upon trust to convey and 
 divide such estati; and premises amongst their children and the 
 issue of their children who should then be living as tenants in 
 common, the issue of any deceased child to take their parent's 
 
 281
 
 * 278 LEASEHOLDS FOR LIVES. 
 
 share; held, that the children living at the time of division, and 
 the children then living of those who were dead, took life estates 
 only; Tathamv. Vernon, 29 Beav. 604. 
 
 Voluntary settlement vesting freeholds in trustees in fee, upon 
 trust for the settlor for life, with remainder intrust for A. as and 
 when he should attain twenty -one, with interim powers 
 [ * 278 ] of maintenance. If A. should die under * twenty-one, 
 or, having attained that age, should die in the lifetime 
 of the settlor without leaving issue living at the death of the 
 settlor, a trust over. A. attained twenty-one, survived the settlor, 
 and died leaving issue. Held, that A. took for life only; Middle- 
 ton v. Barker, W. N. 1873, p. 231; S. C, 29 L. T. N. S. 643. 
 
 By a marriage settlement land was vested in trustees in fee 
 simple, on certain trusts during the lives of the husband and wife, 
 and subject thereto " on trust for all and every the children of 
 the marriage to be equally divided between or among them, if 
 more than one, in equal shares as tenants in common, but if there 
 shall be but one such child, then the whole to be intrust for that 
 one child, the shares of such children being a son or sons to be 
 conveyed or transferred to him or them or his or their represen- 
 tatives, as and when he or they shall attain his or their respective 
 ages of twenty-one years or die under that age leaving lawful 
 issue, and the shares of such of them as shall be a daughter or 
 daughters to be conveyed or transferred to her or them when and 
 as she or they shall attain the age of twenty-one years, or be 
 sooner married." Held, that the children took for life only. 
 Maylerw. Maijler, 11 L. R. (Jr.), 522. 
 
 Wills. — It will be observed that this rule differs from the rule 
 applicable to the construction of wills made before the 1st Jan., 
 1838, where, if on the construction of the will the trustees take 
 the whole legal fee in trust for A., without any words of limita- 
 tion, A. takes the whole equitable fee; Hawkins on "Wills, 137. 
 
 Leaseholds for lives. — Owing to the nature of an estate jnir 
 autre vie, where renewable leaseholds for lives are conveyed to 
 trustees and their heirs upon trust for A., it has been held that A. 
 takes the absolute interest; Lewin on Trusts, Ch. 8, s. 1, p. 99 
 (7th ed. ), citing 3rClintock v. Irvine, 10 Ir. Ch. R. 480; Brenan 
 v. Boyne, 16 Ir. Ch. R. 87; Betty v. Elliott, ib. 110, note; and Be 
 Bayley, 16 Ii'. Ch. R. 215; But see Barron v. Barron, 8 Ir. Ch. 
 Rep. 66; S. C. Dru. Rep. t. Nap. Z^i, contra; but this case seems 
 to have been decided on the context. 
 
 282
 
 JOINT TENANTS — TENANTS IN COMMON. * 280 
 
 *CH AFTER XIX. [*279] 
 
 JOINT TENANCY. TENANCY IN COMMON. 
 
 Joint Tenancy, how created: Limitations to Corporations, to- 
 gether luith ordinary j^ersons : To Husband and Wife : Joint 
 Purchases: Partnership Property: Mortgagees: Executory 
 instruments : Where estates of different natures : Joint Ten- 
 ancy for life icith several inheritances : Where one grantee 
 incapable : Benefit of Survivorship : To A. dt B. and the sur- 
 vivor and heirs of survivor : Words implying distinct inter- 
 ests: ExjJress gift to survivor: ^^ Survivors'''' construed 
 " Others.'' 
 
 Rule 105. — What limitations are joint. — A limitation, either 
 at Commou Law or in a conveyance to uses, of estates of the same 
 natui'e to several, either nominatim or as a class, without more, 
 makes them joint tenants. The estates must begin at the same 
 time if the conveyance is at Common Law, but this is immaterial 
 if it be under the Statute of Uses. 
 
 Examples. — At common laiv. — A remainder limited at common 
 law to the heirs of A. & B , two living persons, makes them ten- 
 ants in common, because their estates do not begin at the same 
 time; 24 Ed. 3, 2*Ja, cited Justice WindhanVs Case, 5 Rep. 8a; 
 Co. Lit. 188a; Suinme''s Case, 18 Rep. 57. 
 
 Under statute of uses. — "If a man make a feoffment in fee to 
 the use of himself and of such wife as he should after- 
 wards marry, * for term of their lives, and after he [ * 280 ] 
 taketh wife, they are joint tenants, and yet they come to 
 their estates at several times: " Co. Lit. 188a; Sanime's Case, 13 
 Kep. h&j; see also Mutton's Case, Dy. 21 Ab, S. C, Moo. 96, pi. 
 240; Brenfs Case, Dy. 340a. 
 
 Two persons were in lawful possession of land as tenants under 
 the tenant for life; on Ijer death they remained in possession 
 without paying rent till they had acquired a title under the Stat- 
 ute of Liniitations; held, that they W(^re joint tenants, as they had 
 acquired title at the same instant: Wai'd v. Ward, L. R. () Ch. 789. 
 
 283
 
 * 281 JOINT TENANTS — TENANTS IN COMMOV. 
 
 Limitation by deed to " issue male " in remainder after the 
 death of their father; held, that the sous took as joint tenants for 
 life: Fitzherbert v. Heatlwote, cited 4 Ves. 794. 
 
 Limitation to the use of the husband for life, remainder to the 
 use of the wife for life, remainder to the use of all the issues fe- 
 male of their bodies, and the heirs male of the bodies of such 
 issues female; held, that the daughters took a*> joint tenants for 
 life, with several inheritances: Matthews v. Temjile, Comb. 467; S. 
 C, sub nom. Sussex v. Temple, 1 Ld. Ray. 310. 
 
 Use in a settlement in remainder after the death of the sur- 
 vivor of the husband and wife " to permit all and every the chil- 
 dren to take the rents to them and their heirs for ever; " held, 
 that the children took as joint tenants: Siratton v. Best, 2 Bro. C. 
 C. 233. 
 
 Trust of j^ei'sonalty. — Trust of personalty in a marriage settle- 
 ment for A. for life, remainder for his children; held, that the 
 children took as joint tenants: Sta2)les v. Maurice, 4 Br. P. C. 580. 
 
 First Exception. — Ttvo corporations, or corporation and per- 
 son. — If estates in land are limited to two corporations sole, or to 
 a corporation sole and an ordinary person, or to the. Crown and 
 an ordinary person, they take as tenants in common; this excep- 
 tion does not extend to chattels, real or personal: Co. Lit. 1896, 
 190a. 
 
 Second Exception.— if«s6awd and wife, (a) — If (before 1883) 
 a limitation v/as made to, or trust declared for, husband 
 [ * 281 ] and wife, in words * which, if they had been ordinary 
 persons, would have made them joint tenants, they be- 
 came tenants by entireties; see Co. Lit. 2996; Greneley^s Case, 8 
 Rep. 716; Back v. Andreiv, 2 Ver. 120; Green d. Crew v. King, 
 2 Bl. 1211; Ward v. Ward, 14 Ch. D. 506; a consequence of 
 which is that, if a limitation was made to husband, wife, and a 
 stranger, the husband and wife took one moiety only, and the 
 other person the other moiety: Co. Lit. 187a; Back v. Andrew, 
 2 Vern. 120: see also Gordon v. Whieldon, 11 Beav. 170, the case 
 of a legacy. 
 
 But if the gift is contained in a will dated before, but coming 
 into operation after, 1882, the moiety taken by the husband and 
 wife is divided between them, the wife taking one half of it for 
 her separate use by reason of the Married "Women's Property Act, 
 1882: Re March, 24 Ch. D. 222, S. C, on appeal, W. N. 1884, p. 
 170; 27 Ch. D. 166, 
 
 Third Exception. — Purchase by several paid for unequally. — 
 Where a purchase is made by several, and is paid for by them in 
 
 (rt) See Knox r. Wells, 2 H. e^ M. 674. 
 284
 
 JOINT TENANTS — TENANTS IN COMMON. * 282 
 
 unequal shares, tbey become tenants in common in equity, even 
 though the legal limitations be to them as joint tenants; Robin- 
 son V. Preston, 4 K. & J. 505; but if the money is paid in equal 
 shares, they are joint tenants; Hayes v. Kingdome, 1 Vera. 33; 
 Usher v. Ayleicard, 1 Vern. 360; Lake v. Gibson, 1 Eq. Ca. Ab. 
 290, pi. (3); Lake v. Craddock, 3 P. AVms. 158; Arelingv. Kuipe, 
 19 Ves. 441; unless the conveyance is made to one only; Morris 
 V. Barrett, 3 Y. & J. 384. Even if the money is paid in equal 
 shares, evidence of circumstances is admissible to prove an inten- 
 tion to hold in severalty; Edicards v. Fashion, Prec. Ch. 332; but 
 direct evidence of intention to that effect is inadmissible: Harri- 
 son v. Barton, 1 J. & H. 287. See as to direct evidence of inten- 
 tion, ante, pp. 108, 109. 
 
 Fourth Exception. — Purchase for purposes of frade.— "Where 
 the property is purchased for the purpose of joint trade: 2 
 Brownl. 99; Jeffreys v. Small, 1 Vern. 217; Lake v. Craddock, 3 
 P. "Wms. 158; Lyster v. Dolland, 1 Ves. Jun. 431. See the re- 
 marks of Lord Eldon, C, in Jackson v. Jackson, 9 Ves. 590, and 
 aeeDaviesv. Games, 12 Ch. D. 813. The question, whether 
 the property is to become part of the partnership * estate, [ * 282 ] 
 depends upon all the circumstances of the case: The 
 Bank of England Case, 3 De G. F. & Jo. 645. 
 
 Fifth Exception, — Mortgagees. — Persons advancing money on 
 mortgage in any shares are in equity tenants in common thereof: 
 Petty V. Styward, 1 Rep. Ch. 57, S. C, 1 Eq. Ca. Ab. 290; Pig- 
 den V. Vallier, 2 Ves. Sen. 258; 3 Atk. 731. See Morley v. Bird, 
 3 Ves. 631, per Arden, M. R., who draws a distinction between 
 mortgagees and volunteers taking under a will or deed of gift. 
 
 But on this exception, see the remarks of Page Wood, V.-C. ; 
 Harrison v. Barton, 1 J. & H. at 292. 
 
 Sixth 'E'X.ce'ption.— Executory instrument. — The tendency of 
 the Courts is to construe words in an executory instrument 
 importing joint tenancy as giving a tenancy in common: Taggart 
 v. Taggart, 1 Sch. & Lef. 84; Mayn v. Mayn, L. R. 5 Eq. 150; 
 Staples V. Maurice, 4 B. P. C. (ed. Tom.) 580; contra, Bu.'itard v. 
 Saunders, 7 Beav. 92; Re Bellasis' Trust, L. R. 12 Eq. 218. See 
 post, pp. 542, 548 
 
 See as to all these exceptions the notes to Lake v. Gibson and 
 Lake v. Craddock, 1 \\'. & Tu. L. C. Eq. 
 
 Rule 106. — The estates must be of the same nature. — The es- 
 tates of joint tenants must be of the same nature; one cannot be 
 freehold and the other chattel; Co. Lit. 188a; one cannot be in 
 possession and the other in reversion: Litt. k. 302. 
 
 285
 
 * 283 JOINT TENANTS — TENANTS IN COMMON. 
 
 Joint tenants for life tvith several inheritances. — Bnt joint ten- 
 ants for life may have several inheritances: Litt. s. 283. See this 
 discussed, Fearne, C. R. 35 et seq. Mattheivs v. Temple, Comb. 
 467; S. C. sub noni. Sussex v. Temple, 1 Ld. Ray. 310. 
 
 A limitation to two men, or to two women, and the heirs of their 
 bodies; Co. Lit. 182a; or to a man and woman who cannot marry 
 and the heirs of their bodies; or to two men and one woman, and 
 the heirs of their bodies; Co. Lit. 184a; makes them joint tenants 
 for life, with several inheritances. Bnt a limitation to a husband 
 and wife, or to a man and woman who can marry, and to 
 [ * 283 ] * the heirs of their two bodies, gives them an estate in 
 special tail in the entirety; Co. Lit. 256.; see Rule 78, 
 p. 239. 
 
 A limitation to two successively for life, remainder to the heirs 
 of their bodies, gives them a joint remainder in tail: Fearne, C. 
 R. 36. 
 
 A limitation to two and the heirs, or heirs of the body of one, 
 gives them joint estates for life, and the inheritance to one: Co. 
 Lit. 1846 (see the discussion in the note). 
 
 A limitation to two and their heirs {7iot heirs of the body), 
 vests the fee simple in them jointly: Fearne, C. R. 35. 
 
 Miscellaneous. 
 
 One of donees not capable. — If the limitation be to two, one of 
 whom is not capable, the other shall take the whole; as if there 
 is a gift at Common Law (see Rule 105), to a man and his first- 
 born son, when he has no son, or to a man and to such woman as 
 he shall marry, in either case, the man takes the whole: Shelleifs 
 Case, 1 Rep. 101a. See post, p. 358. See the point discussed, 
 Davies v. Kemjje, Carter, 2 (at p. 5); Humphrey v. Tayleur, 1 
 Amb. 136; S. C, 1 Dick. 161; cases on wills. 
 
 ''■Joint and natural lives.'''' — "During their joint and natural 
 lives," held to mean during their joint lives, and during the 
 tiatural life of each of them: this construction was helped by the 
 context: Smith v. Oakes, 14 Sim. 122. 
 
 Beyiefit of survivorship. — It follows from Rule 18, ante, p. 85, 
 that words stating that joint tenants for life are to have the bene- 
 fit of survivorship,. do not prevent them from being joint tenants: 
 Co. Lit. 191a. 
 
 A. and B. and survivor and heirs of survivor. — As to the con- 
 struction of a limitation to A. & B. and the survivor of them, and 
 the heirs of the survivor, see Mr. Butler's note to Co. Lit. 191a; 
 Fearne, C. R. 357. 
 
 Joint life estate and joint limitation to heirs — A joint limita- 
 tion to A., B. and C, for their lives, or in tail, followed by a joint 
 limitation to their heirs, gives them a joint estate in fee simple: 
 Co. Lit. 1836, 184a. 
 286
 
 TENANTS IN COMMON. * 285 
 
 " Heirs of A. and £." — As to a limitation to " the heirs of A. 
 & B.," where A. is dead and B. alive, see Haices v. Hawes, 1-i 
 Ch. D. 614. 
 
 * Rule 107. — Words giving tenancy in common. — A [*284] 
 limitation to, or trust for, several, either nomiuatim or 
 as a class, with any words implyiuw a distinctness of interest, 
 makes them tenants in common: Co. Lit. 1886. 
 
 Examples. — "Equally to be divided;" see Fisher v. Wigg, 1 
 P. Wms. 14: S. C, 12 Mod. 295; 1 Ld. Ray. 622; 1 Salk. 391; 
 Rigden v. Vallier, 2 Ves. Sen. 252, S.. C. 3 Atk. 731 ; Goodtitle d. 
 Hood V. Stokes, 1 Wil. 341; Anon., 2 Vent. 305. 
 
 ''In rateable and equal manner;" Bois v. Rosicell, 1 Lev. 232. 
 
 Grant to L. T. & S. respectively, their respective executors, 
 &c., of an annuity for the life of P., charged on certain lands, 
 habendum to L. T. & S., their respective executors, &c., for the 
 life of P. The deed contained covenants by P., with L. T. & S., 
 their respective executors, &c. The consideration was advanced 
 in equal shares by L, T., and S. Held, that L. T. and S. took 
 the anniiitv in equal shares as tenant in common: Fleming v. 
 Fleming, o Ir. C. R. 129. 
 
 Exception. — "Jointly and severally," makes them joint ten- 
 ants: Slingsby''s Case, 5. Rep. 19a. 
 
 Rule 108. — Followed by express gift over to survivor. — Not- 
 withstanding some of the older cases, where the words implying 
 distinctness of interest are followed by an express gift to the 
 survivor, it is tenancy in common with a gift over to the survivor. 
 
 Examples. — Clei^k v. Clerk, 2 Ver. 322; Oakley v. Young, 3 
 Eq. Ab. 537; see also Ward v. Everard, Salk. 390; S. C. sub nam. 
 Ward v. Everet, 1 Ld. Ray. 422; Comb. 329: Carth. 340 (the re- 
 ports differ as to the decision); Kew v. Bonse. 1 Ver. 353 (see 
 the cases collected in the note); and the following cases 
 on wills: * Taaffe v. Conmee, 10 H. L. C. 64 (see p. 78); [*285] 
 Haddelsey v. Adam.'i, 22 Beav. 266: Doe d. Bonrell v. 
 Abey, 1 M. & S. 428; Cranswith v. Pearson, 31 Beav. 624. 
 
 Rule 10^.— '' Survivors''' read "oi'/ie?%9."— "Where there is a limi- 
 taticm to several, or to a class, as tenants in common in tail (or 
 tail male) with remainder, as to the share of each, to the "sur- 
 vivors," and there is a gift over on failure of issue (male) of all 
 the donees in tail, the word "survivors" will be construed 
 "others." 
 
 287
 
 * 285 TENANTS IN COMMON. 
 
 " Here the single question arises on the meaning of the word 
 'surviving,' which, indeed, is the only word that distresses the 
 case. But, taking the whole context together, I do not think that 
 that word renders the case doubtful. The fair construction of 
 that word, standing in this context, is that on the death of one 
 child without issue, that portion shall go to the surviving line of 
 heirs, and not merely to one child surviving; it must go to the 
 surviving children in their own persons, if livipg, or, if dead, to 
 their issues. And in putting this construction, I do not think we 
 proceed on conjecture merely; for the conclusion of this sen- 
 tence is, 'And in case all the said children should die without 
 issue,' then the remainder is limited to A. in fee. We cannot 
 give effect to the word 'all' without determining that there must 
 be cross remainders, not only as long as the individual children, 
 but as long as the several lines of those children exist;" per Lord 
 Kenyon, C. J.; Doe d. Wafts v. Waineinight, 5 T. R. 431 (stated 
 2yost, p. 292). See to the same effect. Cole v. Seu-ell, 2 H. L. C. 
 186; S. C, 5 Ir. Law Rep. 190; 6 Ir. Eq. Rep. 66; 2 Con. & L. 
 344; 4 Dr. & War. 1. 
 
 If a'contingent remainder be limited to the heirs of two living 
 persons, not being husband and wife,* which remainder must 
 therefore vest at different times, the respective heirs take as ten- 
 ants in common: Windham'' s Case, 5 Rep. at 8a. resol. 3; Moe v. 
 Quart ley, 1 T. R. 630; cited in Challis R. P., p. 298. 
 
 288
 
 RESULTING USE TO GRANTOR. * 287 
 
 *CHAPTERXX(a). !:*286] 
 
 ESTATES BY IMPLICATION. RESULTING TRUSTS. 
 
 Reversion in grantor : Resulting uses to grantor: No resulting 
 estate in person not owner of estate granted: Difference be- 
 tween limitations in remainder to heirs special and to heirs 
 genera I of grantor : Cross remainders not implied : Result- 
 ing trusts. 
 
 An estate by implication of law has place only by way of use, 
 either by assurances operating tinder the statute or through the 
 medium of a conveyance to serve the uses, and in devises. By 
 the rules of the common law applicable to deeds, no intention will 
 be presumed unless it is expressed: and consequently no estate 
 will arise unless there be a limitation to pass that estate: see 1 
 Preston, Est. 190, citing Gardner v. Sheldon, Vaugh. 259, and 
 per Twysden, J., 2 Lev. 79. 
 
 Reversion in grantor. — Where A., seised in fee, creates a par- 
 ticular estate by a conveyance operating at common law, the re- 
 version of the fee simple remains in A., Co. Lit. 226. 
 
 No resulting use to grantor.- ~li A., seised in fee, conveys the 
 whole fee simple by a conveyance operating at common law, for 
 a valuable consideration, without any declaration of use, or, 
 whether there be any valuable consideration or not, if the uses 
 exhaust the fee, there is no resulting use to A. : but 
 
 Rule 110. — Resulting use to grantcn in fee. — If A. conveys the 
 whole fee simple by a conveyance operating at common 
 law, and * there is no consideration and no declaration [ * 287 ] 
 of uses, there is a resulting use to him in fee simple: 
 Armstrong d. Neve v. Wol.sey, 2 Wils. 19; Beckivith''s Case, 2 Rep. 
 58a. Secus as to a conveyance before the statute of Quia Emptores : 
 Dyer, 1466, pi. 71. 
 
 Rule 111. — Resulting use to the grantor of uses not disposed 
 
 (a) As to the use that results to the grantor on a conveyance witliout con- 
 sideration, see p. 149. And as to implied interests in default of appointment 
 post, Rule 142, p. :mi. 
 
 19 IXTEKPRKTATIOX (»K DKKKS. 289
 
 * 288 NO IMPLICATION IN FAVOUR OF STRANGER. 
 
 of, If A. conveys the whole fee simple by a conveyance operat- 
 ing at common law, then, whether there is consideration or not, 
 if the uses declared do not exhaust the fee, so much of the estate 
 as is not disposed of, reverts to A.; ante, 149; Fearne, C. E. 42; 
 Co. Litt. 23a, 271a; Audleifs Case, Dyer, 166a; Woodliffe v. 
 Drury, Cro. El. 439. 
 
 One particular instance of the foregoing rule is of sufficient 
 importance, having regard to the rule in Shelley's Case (see ante, 
 p. 243), to be stated in the rule following: 
 
 Rule 112. — Resulting use to grantor for life. — Where a use is 
 limited which cannot commence till after the grantor's death, 
 and either no use is limited to take effect in the grantor's life- 
 time or, uses being limited, they are not commensurate with the 
 grantor's life, the freehold will result to him, unless an express 
 use be limited to him' inconsistent with such an implication. 
 
 The rule is so fully discussed in Fearne, C. R. 41, et seq., that 
 it is unnecessary to discuss it here. The cases cited by Fearne are 
 Pibus v. Mitford, 1 Vent. 372; Adams v. Tertenants of Savage, 
 2 Salk. 679; Raivley v. Holland, 22 Vin. 189, PI. 11; S. C.,2Eq. 
 Cas. Abr. 753; Tippiny. Cosin, Garth. 272; 4 Mod. 380; Moor, 
 284; Holt, 731; Southcot v. Stoicell, 1 Mod. 226; 2 Mod. 207, 
 211; Mandevile's Case, Co. Lit. 26; Wills v. Palmer, 5 
 [ *288 ] Bur. 2615; S. C, 2 Bl. Rep. 687. Mr. Fearne * adds 
 that this rule flows from the rule laid down by Coke 
 (Co. Lit. 23a), that in a conveyance to uses without valuable con- 
 sideration so much of the use as is undisposed of results to the 
 grantor. 
 
 There is some difficulty in seeing what becomes of the freehold 
 in cases like Adams v. Tertenants of Savage, 2 Salk. 679; S. C, 2- 
 Ld. Ray. 854; Rawley v. Holland, 22 Vin. 189, PI. 11; S. C, 2 
 Eq. Ab. 753; Godbold v. Freestone, 3 Lev. 406; Bedford v. Rus- 
 sell, or The Earl of Bedford's Case, Pop. 3; S. C, Moore, 718, 
 cited 1 Rep. 130a, where the first use was to the grantor himself 
 for ninety nine years, and it was held that he took no estate by 
 implication, notwithstanding that the use was not limited away 
 from him during all his life. 
 
 Observation. — I have stated the rule as laid down in the notes 
 to Fearne, but it should be observed that it is only true if the 
 grantor be seised in fee, and that if he be tenant for life, the use 
 undisposed of will not result to him: Castle v. Dod, Cro. Jac. 200, 
 where it is stated that the fact that the grantee becomes liable to 
 forfeiture is sufficient consideration to vest the use in him. 
 290
 
 CROSS-REMAINDERS NOT IMPLIED. * 289 
 
 Difference betiveen remainder to heirs general and Jieiis special 
 of grantor. — In connection with this subject, Fearne points out 
 (p. 51) the difference "between a subsequent limitation to the 
 use of the heirs special, and one to the use of the heirs general, 
 in cases where the freehold is limited away from the grantor dur- 
 ing his life; thq latter leaves the old use in himself by way of 
 reversion (6); but the former is a contingent remainder to his 
 heirs special — that is, where the limitation is by way of use; for 
 by a conveyance at common law the limitation to the heirs special 
 of the grantor would be void; because a donor cannot make his 
 own heir a purchaser, even of an estate tail, without departing 
 with the whole fee." Shep. Touch. 522, Vin. Abr. Uses, 188, ante 
 p. 149. 
 
 Rule 113. — Implication in favour of grantor only. — No estate 
 can arise by implication, or by way of resulting use, to a person 
 who was not the owner of the estate granted. 
 
 * The rule is stated in this form in Fearne, C. R. 49, [ * 289 ] 
 citing Davies v. Speed, 2 Salk. 675 (this report is incor- 
 rect; in " 2ndlv, This limitation to the heirs of the body, &c.," 
 dele "of the body^'); 4 Mod. 153: S. C, Holt, 730; Show. P. C. 
 104; Sir Thomas Ti2:)ping^s Case, cited 1 P. Wms. 359; and some 
 cases of devises. 
 
 The rule applies to equitable interests in personalty; Pringle v. 
 Pringle, 22 Bea. 631. 
 
 Rule 114.— Cross limitations are never implied. — Cross-remain- 
 ders cannot be raised in a deed by implication, nor even by an 
 express declaration of intention, without apt words of limitation. 
 But in the limitations of cross-remainders the word " survivors " 
 many be read " others," for the purpose of giving effect to the in- 
 tention. See ante, Chapter XIX., Rule 109. 
 
 " Of the general rule [that cross-remainders cannot be raised 
 
 in a deed by implication] there is no doubt The rule, 
 
 when correctly understood, is in truth only a branch of the gen- 
 eral rule, that no estate of inheritance can be created by deed 
 without apt words indicating the estate to be taken ; that is, ' heirs ' 
 to create an estate in fee, ' heirs of the body ' to create an estate 
 tail. When lands are conveyed by lease and release, or other as- 
 surance, to the use of A. and B., as tenants in common, and the 
 heirs of their respective bodies, A. and B. have estates tail, each 
 in his own undivided moiety; biit it is clear tbat neither of them 
 has any estate tail whatever in the other's moiety. Let us sup- 
 
 (6) As to limitatious in deeds after 1833, see 3 & 4 Will. 4, c. 106, s. 3. 
 
 291
 
 * 391 CROSS-REMAINDERS NOT IMPLIED. 
 
 pose, in order to put the case as strongly as possible in favour of 
 cross-remainders, that the deed conveying the land should contain 
 a clause expressly stating the intent of the parties to be, that, in 
 case A. or B. should die without heirs of his body, his moiety 
 should go over to the other, by way of cross-remainder in tail. 
 Then, supposing these to be the very words used, there could be 
 
 no doubt as to what the parties intended; but it is certain 
 [ *290] that, in the event of * A. or B. dying .without issue, the 
 
 intention could not be carried into effect for want of the 
 words ' heirs of the body,' connected with the gift over by way of 
 cross-remainder; and as this cannot be done by any words except 
 the words ' heirs of the body' (a), however clearly the language 
 may show the intention of the parties, so d fortiori the object can- 
 not be effected by any inference of intention, however clearly it 
 may arise from the context;" per Pollock, C. B., Doe d. Clift v. 
 Birkhead, 4 Ex. 124. 
 
 " In the case of a deed, cross-remainders cannot be implied. 
 That rule, which was established in Cole v. Levingston (1 Vent. 
 224; S. C. 3 Keb. 2, where the limitations are stated), has never 
 been departed from since, and we should be removing the land- 
 marks of real property if we were to bring that rule into ques- 
 tion;" per Lord Kenyou, C. J., Doe d. Tanner v. Dorvell, 5 T. R. 
 521. 
 
 See also note to Cook v. Gerrard, 1 Wms. Saund. at p. 186a 
 (ed. 1871, Vol. I., p. 179). 
 
 Examples: (1) Cross-remainders not raised. — Limitation 
 to the use of A. and B. and of the heirs male of the bodies of the 
 said A. and B. lawfully to be begotten, and for default of such 
 issue male of the body of either of them, then to the use of either 
 of them having issue male of his body lawfully begotten, and for 
 default of such issue male of both the bodies of the said A. and 
 B. or either of them lawfully to be begotten, over: Nevil v. Nevil, 
 1 Brownl. 152; S. C. 1 Roll. Ab. 837, (K), pi. 2. 
 
 Limitation to the use of all and every the daughter and daugh- 
 ters of the body of C on the body of M. to be begotten, share and 
 share alike, equally to be divided between them, and of the heirs 
 of the body and bodies of all and every such daughter and daugh- 
 ters lawfully issuing, and for default of such issue, over: Doe d. 
 Foquett v. Wo7\sley, 1 East, 416. 
 
 Limitation " to the use of all and every the child and 
 
 [ * 291 ] * children of the said intended marriage, both sons and 
 
 daughters equally part and share alike, if more than one 
 
 as tenants in common and not as joint tenants, and of the heirs 
 
 of the body and bodies of all and every such child and children 
 
 (o) Or in deeds since 1881, by the words "in tail."' See the Conv. and 
 Law of Property Act. 1881, s. 51. 
 
 292
 
 CROSS REMAINDERS OF ACCRUED SHARES. * 292 
 
 lawfully issuing; and in case there shall be toore children than 
 one of the said intended ruarriage, and any such child or children 
 shall happen to die under the age of twenty one years without 
 issue of his or their body or bodies lawfully issuing, then and so 
 often, and as to the part and share, parts and shares, of all and 
 every such child and children so dying, to the use of the survivors 
 of such childi-en equally part and share alike, if more than one, 
 as tenants in common and not as joint tenants, and to the heirs 
 of the body and bodies of all and every such child and children 
 lawfully issuing, until every such child and children shall be dead 
 without lawful issue of their each and every of their bodies law- 
 fully issuing; and in case there shall be but one child only of the 
 said intended marriage or one only surviving child thereof, then 
 to the use of such only or only surviving child of the said in- 
 tended marriage, be the same a son or a daughter, and of the heirs 
 of the body of such only or only surviving child; and for default 
 of such issue, or in case there should be issue of the said intended 
 marriage who should all die without issue of his or their body or 
 bodies lawfully issuing, under the said age of one and twenty 
 years, then " over. There were two children, both of whom at- 
 tained twenty-one. Held, that there were no cross-remainders in 
 this event; Levin v. WeatfieraU, 1 Brod. & Bing. 401; S. C. 4 J. 
 B. Moore, 116; see to the same effect, Meyrick v. Whishaic, 2 B. 
 & Aid. 810. 
 
 Cross-remainders of accrued shares. — Limitation " to the use of 
 all and every the child and children of the body of A. on the body of 
 B. lawfully begotten or to be begotten, equally to be divided between 
 or among them ; if more than one, share and share alike as tenants 
 in common and not as joint tenants, and to the use of the several 
 and respective heirs of the body and bodies of all and 
 every such child and children * lawfully issuing; and [ * 292 ] 
 if there should be a failure of issue of the body or bodies 
 of any such child or children, then as to the part or share, or parts 
 or shares, of such child or children, when issue should so fail, to 
 the use of the remaining and other children of the body of A. on 
 the body of B. lawfully begotten or to be begotten, equally to be 
 divided between or amongst them if more than one, share and 
 share alike, and they to take as tenants in common and not as 
 joint tenants, and to the use of the several and respective heirs of 
 the body and bodies of such remaining and other children law- 
 fully issuing; and in case there should be a failure of issue of the 
 bodies of all such children but one, or if there should be but one 
 such child, then to the use of such only remaining or oidy child, 
 and the heirs of his or her body lawfully issuing; " and for de- 
 fault of such issue, over. Held, that, though cross-remainders 
 were well created as to the original shares, they were not created 
 as to the accruing shares; Kdu-urds v. Alli.sto)i, 4 liuss. 78; over- 
 ruled by Doe d. C'lift v. Birkhead, 4 Ex. 110. See next page. 
 
 293
 
 *293 CROSS-REMAINDERS RAISED. 
 
 Limitation of leaseholds for lives " to the use of all and every 
 the child and children of A. lawfully begotten or to be begotten, 
 and if more than one, equally to be divided amongst them, share 
 and share alike, as tenants in common and not as joint tenants, 
 and of the several and respective heirs of the body and bodies of 
 all and every such child and children lawfully issuing; and if 
 there shall be but one such child, then to the use of such only 
 child and the heirs of his or her body lawfully issuing; and in 
 default of such issue to the use of the heirs of A. Held, that on 
 the death of a child without issue and without having made any 
 disposition, his share went to the heir of A. : Bainton v. Bainton, 
 34 Beav. 563. 
 
 Examples: (2) Cross-remainders raised. — Limitation to 
 the use of the child or children of A. as tenants in common if 
 more than one and the heirs of their several bodies issuing; " and 
 in case any such child or children should die without issue of his, 
 her, or their body or bodies issuing' then the part or 
 [ * 293 ] parts of him, her, *or them so dying without issue should 
 be and remain to the use of the surviving child or chil- 
 dren of the said A., and the heirs of his, her, or their respective 
 bodies issuing, and so toties quoties as any of the said children 
 should die without issue, till there should be only one child left; 
 and in case all the said children should die without issue, or if the 
 said A. should have no issue of her body," over. There were three 
 children, John, Mary, and Robert. Mary married and died, leaving 
 issue W. and two other children. John died without issue, and 
 ■withoTit having disposed of his share. Held, that John's share 
 vested in W. and Robert, as tenants in common. Stress was laid 
 on the ultimate gift over " in case all the said children should 
 die without issue," inasmuch as effect could not be given to the- 
 word "all" without determining that there must be cross-remain- 
 ders, not only as long as the ipdividual children, but as long as 
 the several lines of children, exist : Doe d. Watts v. Wainewrightj 
 5 T. R. 427. 
 
 Limitation to the use of all and every the children of a mar- 
 riage, " to be equally divided between them share and share 
 alike, to take as tenants in common and not as joint tenants, and 
 of the several and respective heirs of the bodies of all and every 
 such children lawfully issuing; and in case one or more of such 
 children should happen to die without issue of his, her, or their 
 body or bodies, then, as to the share or shares of him, her, or 
 them so dying without issue, to the use of the survivors or others 
 of them, share and share alike, to take as tenants in common and 
 not as joint tenants, and of the several and respective heirs of 
 their bodips lawfully issuing; and in case all such children should 
 happen to die without issue, or if there should be but one such 
 child, then to the use of such surviving or only child, and of the 
 294
 
 RESULTING TRUSTS. * 294 
 
 heirs of his or her body lawfully issuing, and for default of such 
 issue," over. The question was, to what interests the words of 
 limitation applied: in other words, what was meant by the words 
 "share or shares; " whether they applied to the accru- 
 ing as well as to the original * shares. It was decided [ * 294 ] 
 that the word '" share," according to its natural and ob- 
 vious meaning, includes, or at all events, if the context requires 
 it, may include every interest which the child takes under the 
 limitations in the settlement: Doe d. Clift v. Birkhead, 4 Ex. 110. 
 See also Cole v. Seicell, 4 Dr. & War. 1, where "survivors" 
 was read "others" in favour of the intention: see p. 33; S. C. 2 
 H. L. C. 186. 
 
 Observation. — Executory instruments. — In executory instru- 
 ments cross-remainders may be raised by implication; West v. 
 Errissey, 2 P. Wms. 349; Phillips v. James, 2 Dr. & Sm. 404, 
 affirmed (diss. Knight-Bruce, L. J.), 3 De G. J. & S. 72. See 
 post, Rule 196, p. 542. 
 
 Rule 115. — Resulting trusts. — Where a declaration of the 
 trusts of property vested in trustees does not exhaust all the in- 
 terest vested in them, there is a resulting trust of the undisposed- 
 of interest to the settlor; Langham v. Nenny, 3 Yes. 467; Camp- 
 hell V. Prescott, 15 Ves. 500; Wilson v. Paul, 7 Sim. 620; Haw- 
 kins V. Haickins, 7 Sim. 173; Anon., 1 GifP. 392: Pringle v. Prin- 
 gle, 22Beav. 631; Wollaston V. Berkeley, 2 Ch. D. 213. 
 
 When a father covenants in his daughter's marriage settlement 
 to pay a sum as her portion, it is considered to be settled by her, 
 so that any interest undisposed of results to her; Ward v. Dyas, 
 LI & Goo. tern. Sug. 177; unless a contrary intention appears. 
 Re Nash, 51 L. J. Ch. 511; S. C. 30 W. R. 406; 46 L. T. 99. See 
 Dennehy v. Delany, Ir. R. 10 Eq. 377, stated post, p. 549. 
 
 Examples. — Trusts of personalty for xcife "-during cover- 
 ture.''' — Where in a marriage settlement trusts of the wife's per- 
 sonalty are declared for her during coverture, and no trusts are 
 declared in the event of her surviving her husband during the 
 residue of her lifetime, she takes a life interest in the fund by 
 implication: Tunstall v. Trappes, 3 Sim. 312; Allin v. Crawshaw, 
 9 Hare, 382; see S. C, in 21 L. J. Ch. 873, whence it appears 
 that the fund was settled by the wife's father, and not, as stated 
 in Tud. L. C. R. P. 645, by her husband. 
 
 295
 
 * 296 ESTATE FOR LIFE. 
 
 [*295] * CHAPTER XXL 
 
 ESTATES FOR LIFE. SEPARATE ESTATE. 
 
 Limitations to "A.:" "A. and his assigns:"" "A. and his issuer'' 
 Indefinite gift to A. not enlarged by direction that A. shall 
 pay money, or by fee being given to trustees : Words creat- 
 ing separate use : Whether separate use arises immediately : 
 Whetlier it revives on second marriage : Restraint on antici- 
 pation, how imposed : Separate estate alienable without ex- 
 press power: Restraint on anticipation annexed to power 
 only : Restraint on anticipation annexed to reversion. 
 
 Life Estates (a). 
 
 Rule 116. — Conveyance to A. or to A. and his assigns, &c. — 
 A conveyaBce of land, held in fee simple by the grantor, to "A.," 
 or to "A. and his assigns," or to "A. and his issue," or to "A. and 
 his seed," without more, confers on A. an estate for his own life; 
 Litt. 8. 1 (cited ante, p. 224); Co. Litt. 42a; Litt. s. 283, ante, p. 
 225; but if the grantor be seised for life, or in tail, A. takes an 
 estate for the life of the grantor (ante, p. 94). Shep. Touch. 105, 
 107, 110. As to habendum cutting down the implied estate, see 
 ante, p. 216; see as to copyholds, addenda to p. 261. 
 
 Examples. — Limitation in a marriage settlement, after suc- 
 cessive estates tail to the sons, to the daughters as tenants in 
 common, and in default of such issue, over; admitted without 
 argument that the daughters took for life only; Snell v. Silcock, 
 
 5 Ves. 469 (see p. 472). 
 [ * 296 ] * Under a limitation in a marriage settlement to the 
 " heir female of the body " of the settlor, his daughters 
 took life estates; Chambers v. Taylor, 2 My. & Cr. 376; and under 
 a limitation to "next of kin" they took life estates; Lucas y. 
 Brandreth (No. 2), 28 Beav. 274. 
 
 (a) As to a trust for a woman during coverture being construed as a trust 
 for her during life, see precedinjj; page. 
 
 296
 
 SEPARATE ESTATE. * 297 
 
 Observation. — Direction that grantee shall pay money. — An 
 iadelinite limitation to A. is not enlarged into a fee simple by a 
 direction that A. shall pay a sum of money: Wright d. Allingham 
 V. Dowley, 2 Wm. Bl. 1185 (a). 
 
 Observation. — Legal fee limited to trustees. — An indefinite gift 
 to a person or class is not enlarged by the fact that the legal estate 
 is limited to trustees in fee. See Rule 104, ante, p. 276, and the 
 cases there cited (6), 
 
 Reneicable leaseholds. — As to a conveyance of renewable lease- 
 holds for lives to trustees and their heirs in trust for A., see ante, 
 Ch. xviii., p. 278. 
 
 ''A. ayid his heirs.''' — A limitation to A. and his " heir," or the 
 " heir of his body," in the singular, gives A. an estate for life only, 
 ante, pp. 225, 232. 
 
 "A and his executors.^' — As to limitations to "A. and his exe- 
 cutors," or " his executors, administrators, and assigns," see post, 
 pp. 314, 317. 
 
 Separate Use (c). 
 
 Rule 117. — Words creating separate use. — In a gift to 
 a woman, any expression * for which the intention to ex- [ * 297 ] 
 elude her husband can be clearly inferred will have the 
 effect of vesting the property in her for her separate use:" 1 Wh. 
 & Tad. L. C. Eq. (5th ed.) 561; Peachey- on Settlements, 279. 
 
 (a) Secus, in the case of a will before 1 Vict. c. 26. See the cases collected, 
 2 .Tarman, 268. 
 
 (b) Secus, in the ca.se of a will. See the cases collected, 2 Jarman, 273. 
 
 (c) Property acquired by a married woman after 1882, or previously ac- 
 quired by a woman marrying after that date, becomes her separate estate by 
 virtue of the Married Women's Property Act, 1882; 45 & 46 Vict. o. 75, 
 without any expression excluding lier luisband. As to property constituted 
 separate estate by the repealed Married Women's Property Act, 1870, see 
 Elph. Introd. Conv. 269. Property acquired by a married woman and be- 
 coming lier .separate estate by virtue of the Married Women's Property Act, 
 1882, is not '" property .settled to her .separate use" within the meaning of 
 these words as used in an exception to a covenant for settling a wife's future 
 property in a settlement before l.'^8:{; Rr Stonnr, 21 Ch. D. 195. 
 
 '* The husband's common law rights over the wife's property liave of late 
 years been largely modified and to a great extent taken away in this coun- 
 try by statutes in the several states, and the property of married women has 
 been freed fioni tlie husband's authority; and from liability for liis debts 
 and engagfments. Reasons similar to tho.se which have \o<\ to the legisla- 
 tion known as the Married Women's Property Acts had caused the couitsof 
 Chancery to interpo.se for tlie jjroteetion of niairied women; and the ohjeet 
 was accom])lislicd by the ci-eatioii of llie separate us(-, which w'as r<'cognized 
 by the courts of equity as a trust, and whereby tlu- ordinaiy rights of the 
 husband over the property of his wife were excluded, so far us they inter- 
 
 297
 
 * 297 SEPARATE ESTATE. 
 
 " The intention to give a separate estate must be clearly ex- 
 pressed; " per Leach, M. R., Kensington v. Dolland, 2 My. & K. 
 188. 
 
 fered with the beneficial enjoyment of the estate by her. Though the sepa- 
 rate use is a trust, it is not necessary to sustain it that there shouki be a 
 trustee named. This was at cue time doubted, but the rule is now well set- 
 tled, and if no trustee is named the husband will be considered a trustee. 
 McKennan v. Phillips, 6 Whart. (Pa.) 571; Jameson v. Brady, 9 S. & R. (Pa.) 
 466; Vance v. Nagle, 70 Pa. St. 179; Varner's Appeal; 80 Pa. St. 140; Fel- 
 lows V. Tann, 9 Ala. 999; Trenton Banking Co. v. Woodruff, 1 Green Ch. (N. 
 J.) 117; Barrow v. Barrow, 24 Vt. 375; Freeman r. Freeman, 9 Mo. 772; 
 Fears v. Brooks, 12 Ga. 195; Whitten v. Jenkins, 34 Ga. 29'< ; Steele v. Steele, 
 1 Ired. E<i. (N. C.) 452; Thompson v. McKusic, 3 Humph. (Tenn.) 631; Long 
 V. White, 5 J. J. Marsh. (Ky.) 263; Shirley v. Shirley, 9 Paige (N. Y.), 364; 
 Baykin v. Ciples, 2 Hill Ch. (S. C.) 200; Wallingsford r. Allen, 10 Pet. 583; 
 Freeman v. Freeman, 9 Miss. 763. But an intention clearly manifested to 
 create a separate estate is necessary in order to exclude the husband's marital 
 rights. The mere intervention of a trustee is not sufficient. LeNoir v. Bin- 
 ney, 15 Ala. 667; Graham i\ Graham, Riley (S. C), 142: Hunt v. Booth, 1 
 Freem. Ch. (Miss.) 215; Lippincott v. Mitchell, 4 Otto, 767. 
 
 The language employed must be suitable, though no particular form of 
 words is necessary to create a .separate use. Any form of expression indica- 
 tive of an intention to confer the beneticial enjoyment upon the wife and to 
 exclude the husband's rights will be sufiicient. Williams v. Avery, 38 Ala. 
 115; Beaufort v. Collier, 6 Humph. (Tenn.) 487; Nixon v. Rose, 12 Grat. 
 (Va.) 425; Clark r. Maguire, 16 Miss. 302; Warren v. Halsey, 1 S. & M. Ch. 
 (Tenn.) 647; Perry v. Boileau, 10 S. & R. (Pa.) 208; Stuart v. Kissem, 2 
 Barb. (N. Y. ) 494. What words are sufiicient to indicate such an intention 
 is a question as to which there is much difference of opinion. In North 
 Carolina the words " for her use " were held enough. Steele r. Steele, 1 Ired. 
 Eq. (N. C.) 452; so too the words for the "entire use, benefit and advan- 
 tage;" Heathman t\ Hall, 3 Ired. Eq. 414. The words "for her own proper 
 use and benefit" were held sufiicient in Kentucky and Alabama. Griffith 
 V. Griffith, 5 B. Mon. (Ky.) 113; Warren v. Halsey. 1 S. & U. Ch. 647. In 
 Tennessee the words " to the use and benefit " were sufficient. Hamilton v. 
 Bishop, 8 Yerg. 33. Other expressions held to create a separate use were 
 "for the use maintenance and support;" Good ?;. Harris, 2 Ired. Eq. (N. 
 C.) 630; "solely for her own use;" Jameson v. Brady, 6 S. & R. (Pa.) 466; 
 "absolutely;" Sherwell r'. Dwarris, Johns. Ch. 172. See al.so for other words 
 held sufficient to raise a sepaiate use; Pepper v. Lee, 53 Ala. 33; Cuthbert v. 
 Wolf, 19 Ala. 373; Charles v. Coker, 2 S. C. 122; Jarvis v. Prentice, 19 Conn. 
 273; Craig v. Watt, 8 Watts (Pa.), 498; Perry v. Boileau, 10 S. & R. (Pa.) 
 208. Among expressions held insufficient are: "to her use;" "for her use 
 and benefit;" Fears r. Crooks, 12 Ga. 198; Clevenstine's Appeal, 15 Pa. St. 
 499; "to her own use;" "for the use of his wife;" Tennant v. Stoney, 1 
 Rich. Eq. (S. C.) 222; McDonald v. Crockett, 2 McC. Ch. (S. C.) 130, "but 
 the said gift extends -to no other person;" Ashcroft v. Little, 4 Ired. Eq. (N. 
 C.) 236. See also on this point Torbert v. Twining, 1 Yeates (Pa.), 432; 
 Houston V. Embry, 1 Sneed (Tenn.) 480. The most commonly used and the 
 most apt words for creating a separate use for a married woman are ".sole 
 and separate use." The word .separate has a technical meaning and will of 
 itself exclude the marital rights, while the same fixed meaning is not at- 
 tributed to the word "sole." It has been held that the fact that the estate 
 is given to the married woman jointly with others will not prevent its be- 
 coming a separate use. Burrily v. Thomas, 63 Mo. 392; Metropolitan Bk. v. 
 Taylor, 53 Mo. 444; but see as to this Inge v. Forrester, 6 Ala. 418; Hawkins 
 V. Coulter, 2 Port. (Ala.) 463. In Davis v. Cain, 1 Ired. Eq. (N. C.) 304, it 
 was held that where one clause of a will applied the words " in trust for the 
 
 298
 
 SEPARATE ESTATE. * 298 
 
 " For separate use there must be words referring to the evpnt 
 of marriage, and creating a separate character or directing an ex- 
 chasive enjoyment;" per Lord Westbury, C, Spirett v. Willoics, 
 34 L. J. Ch. 305; S..C., 13 W. R. 329. 
 
 ^' The jus mariti is not to be curtailed by ambiguous terms, but 
 by clear and unanswerable expression of intention;" per Kinders- 
 ley, V.-C, Moore v. Morris, 4 Drew. 37. 
 
 " No particular form of words is necessary in order to vest pro- 
 perty in a married woman to her separate use. That intention, 
 though not expressed in terms, may be inferred from the nature 
 of the provisoes annexed to the gift;" per Lord Brougham, C, 
 Stanton v. Halt, 2 R. & M. at p. 180. 
 
 Where the protection of a woman about to marry is contem- 
 plated, words may be construed otherwise than in a gift by will 
 to an unmarried woman whose marriage is not in the testator's 
 contemplation: Massy v. Rowen, L. R. 4 H. L. at p. 297. On 
 the other hand it appears that words in a deed, not being a mar- 
 riage settlement, will not exclude the husband unless they would 
 have done so if they had been in a will: Tyler v. Lake, 2 Russ. 
 & My. 183. 
 
 Examples : ( 1 ) Words creating separate use under mar- 
 riage settlements. — "Sole use, benelit and disposition;" Ex 
 parte Ray, I Madd. 199; " full and sole use and benefit; " Arthur 
 V. Arthur, 11 L. Eq. R. 511. 
 
 * A direction that a jointure should be paid to K. [ * 298 ] 
 *' without anticipation," " the sole and separate receipt 
 of the said K. to be a complete and onl^ discharge: " Re Moly- 
 neux's Estate, Ir. R. 6 Eq. 411. 
 
 Examples : (2) Words creating separate use under deeds 
 not being marriage settlements. — Direction for payment "into 
 her own pro[)er hands to and for her own use and benefit; " 
 Tyler v. Lake, 2 Russ & My. 183. 
 
 The words "not to be assignable, &c.," in a trust deed pro- 
 viding pensions for the widows and children of clerks in the 
 East India Company's service had the same effect: Re Peacock's 
 Trusts, 10 Ch. D. 490. 
 
 A husband may make himself a trustee of property for his 
 wife's separate use: c. g., by assigning a leasehold to her, ha- 
 bendum to the wife, her executors, &c., " as her separate estate: " 
 Eox V. Hawks, 13 Ch. D. 822; see Baddeley v. Baddeley, 9 Ch. 
 
 separate use" to certain property, and another applied to certain property 
 the words "in trust" only, the separate use by construction might embrace 
 the whole. As to tin? eflcct of a jnovisioii tliat the proixTty is not to be 
 liaV)le to the husband's debts there is doul)t whether or not it creates a se))a- 
 rate use, as the authorities are divided on the jioint. See Martin r. liell, !) 
 Rich. Eq. (S. C.) 42; LewLs v. Elrod, 38 Ala. 17; Gillespie v. Uurlesou, 28 
 Ala. 551. 
 
 299
 
 * 299 WHEN SEPARATE USE ARISES IMMEDIATELY 
 
 D. 113; but see the observations in Re Breton, Breton y . Woollven, 
 17 Ch. D. 416; Re Whittaker, Whittaker v. Wliitfaker, 21 Cb. D. 
 657; and Hayes v. Alliance, &c., Co., 8 L. K. Ir. 149. 
 
 Examples: (3) Words not creating separate use under 
 marriage settlements. — AVbere part of the property of the in- 
 tended wife was settled in the usual manner, and as to the resi- 
 due, it was declared that it should not be subject to the settle- 
 ment, but should be held "only" in trust for her, " her executors, 
 administrators, and assigns," it was held that the residue was 
 not settled to her separate use: Spirett v. Willoivs, 5 Giff. 49; S. 
 C, affirmed, 34 L. J. Ch. 365. See also Darcy v. Croft, 9 Ir. Ch. 
 R. 19; S. C, Dru. Rep. t. Nap. 403. 
 
 Examples: (4) Where separate use was created by a will 
 in favour of a married woman, or woman whose marriage 
 was contemplated. — The cases on wills collected in 2 Jarm. 
 (4th ed.) 24, note (r), Theobald on Wills (2nd ed.) 467 et seq., 
 show that the words "for the sole use," Re Amies Milner v. Mil- 
 ner, ^\. N. 1880, 16; "sole benefit," Green v. Britten, 1 De G. 
 J. & S. 649; "sole use and disposal," Bland \. Daioes, 17 
 [ * 299 ] Ch. D. * 794; " own use and benefit, independent of any 
 other person," Margetts v. Barringer, 7 Sim. 482; "to 
 be at the disposal of," Kirk v. Paulin, 7 Viner, 95, pi. 43: " for 
 her own use and at her own disposal," Prichard v. Ames, T. & R, 
 222; "solely and for her own use and benefit," Inglefield v. 
 Coghlan, 2 Coll. 247; "her receipt to be a sufficient discharge," 
 Lee V. Prieaux, 3 Br. C. C. 381; Cooper v. WelU, 11 Jur. N. S. 
 923; S. C. 13 L. T. 319,— will, if (d) the beneficiary be married 
 at the date of the will, be sufficient to create a trust for her 
 separate use. 
 
 The words, " her own sole use and benefit absolutely," raised 
 a separate use in favour of a widow, where it appeared from 
 another part of the will that the testator contemplated her re- 
 marriage; Re Tarsey, L. R. 1 Eq. 561. 
 
 Examples: (5) Words in a Will not creating separate 
 use. — The following words in gifts by will have been held not to 
 create a trust for the separate use : — "to and for her own use and 
 benefit," Roberts v. Spicer, 5 Madd. 491; " for her use and bene- 
 fit," Bullock \. Menzies, 4Ves. 798; "to and for her use," Jacobs 
 V. Amyatt, 1 Madd. 376 n.; "sole and absolute lase and benefit," 
 Lewis V. Mathews, L. R. 2 Eq. 177 ; Gilbert v. Leicis. 1 De G. J. & S. 
 38; "sole use" (e), Lindsell v. Thacker^ 12 Sim. 178, where the 
 marginal note is incorrect; Massy y. Rowen, L. R. 4H. L. 288; "to 
 be paid into her hands for her own proper use and benefit," 
 
 (d) See next note on Hartford v. Poicer. Ir. R. 2 Eq. 204. 
 
 (e) But see the remarks in Hartford v. Pmver. Jr. R. 2 Eq. at p. 212; cited 
 in 1 Wh. & Tud. L. C. Eq. (5th ed.), 562-3, on the word " sole." 
 
 300
 
 WHEX SKPARATE USE REVIVES ON REMAKKIAGK. * 300 
 
 Black-low V. Laws, 2 Hare, p. 49; " the interest to be for aud under 
 her sole control," Massey v. Parker, 2 My. cS: K. 174. 
 
 Whether separate use arises immediately. — A question, some- 
 times of very great nicety, may arise, whether the separate use 
 attaches immediately, or Jiot until some future time: the cases are, 
 perhaps, not easily reconcilable, but they appear to show that : — 
 
 First: Where a married woman takes an immediate 
 * interest for her separate use, and words are added [ * 300 ] 
 which apparently restrict the separate use to a future 
 coverture, the generality of the first words is not controlled by 
 the subsequent words, but the separate use arises immediately : 
 Steedman v. Poole, 6 Hare, 198 (see per Kay, J., King v. Lucas, 23 
 Ch. D. at p. 717). 
 
 Secondly : When a married woman takes a vested reversionary 
 interest for her separate use, it arises immediately : Be Moly- 
 neux^s Estate, Ir. R. 6 Eq. 411; Sturgisv. Corp, 13 Ves. 190. 
 
 Thirdly: Where a married woman takes a life estate on the 
 happening of a mere contingency, (such as the insolvency of her 
 husband) for her separate use, the separate use does not attach 
 till the contingency happens : Mara v. Manning, 2 Jo. & Lat. 311; 
 Bestall v. Bunbury, 13 Ir. Ch. R. 549; Keays v. Lane, Ir. R. 3 Eq. 1. 
 
 Fourthly: Where policies of assurance on the life of the hus- 
 band were assigned to trustees on trust to receive the money and 
 pay the income to the wife for her separate use, it was held that 
 the separate use did not arise during the husband's life : King v. 
 Lucas, 23 Ch. D. 712. 
 
 Whether sejjarate use revives on second marriage. Where prop- 
 erty is absolutely given to a married woman for her separate use, 
 independently of a named husband, the separate use does not re 
 Tive on her re-marriage; " Moore v. Morris, 4 Drew. 33 (see Tudor 
 
 " The question us to whether a separate use can be created for the l)enetil. 
 of II feme Hole to come into operation when coverture takes phice, or only for 
 the benefit of a feme covert, is important. The ]X)int was tiist considered in 
 England in Mai^aey v. Parker, 2 M. & K. 174, and it was decided that a 
 separate use could not be created for the benefit of an unmarried woman. 
 This was however oveiruled by TulUil v. ArmMrong. 4 M. & Cr. 377, 
 vrhich decided that a valid separate use could be created for the benefit 
 of a woman who was sole at the time, which would come into active 
 operation whenever a marriage took place. This rule has been adhered to 
 and is now firmly established in England. In the United States the rule 
 varies in the different states. In Pennsylvania a separate use can oidy be 
 created for a married woman or one who is in immediate contemplation of 
 marriage. McKee r. McKinley, ;« Pa. St. 92; Bush's Appeal, .'!:{ I'a. St. 85; 
 Freyvogle t?. Hughes, of; Pa. St. 228; Ilammersly r. Smith, 4 Whart. (Pa.) 
 126. In Arkansas and North Carolina the rule is the .same. Ai)iile r. Allen, 
 3 Jones' Eq. (N. C.) 120; but .see Bridges r. Wilkins, id. :M2; Lind.suy r. Har- 
 rison, '■'> Kng. fArk. I WW. In the other states the rule is the same iis in l''ng- 
 land, following Tullell \. Annsfroiu/. Waters r. Tazewell, it ISId. 2!)1 ; Beau- 
 fort r. Collier, 6 Humj). (Tenn.) 487; Fellows r. Tann, 9 Ala. 103; Staggers 
 V. Mathews, 13 Rich. Eq. (S. Car.) 1.^)4; Shirley r. Shirley, 9 Paige (N. Y.) 
 3G3. In I'cnusylvauia, Arkansas and North Carolina it is also held that a 
 
 301
 
 *301 RESTRAINT ON ANTICIPATION. 
 
 V. Satnync, 2 Veru. 270); but where' she takes a life interest only 
 for her separate use independently of a named husband, the 
 separate use annexed to it revives on a future coverture; 2 Wh. 
 & Tud. L. C. Eq. (5th ed.) 568, et seq. ; Re Gaffee, 1 Mac. & G. 
 541; on app. from 7 Ha. 101; Haivkes v. Hubback, L. R. 11 Eq. 5; 
 Shafto V. Butler, 40 L. J. Ch. 308; S. C, 19 W. R. 595; unless she 
 deals with the property while not under coverture; Wright v. 
 Wright, 2 J. & H. 647. 
 
 Divorce. — In the curious case of Shafto v. Sutler, 40 L. J. Ch. 
 308, part of the husband's property was settled during the joint 
 
 lives of himself and hir^ wife for her separate use without 
 [ * 301 ] power of anticipation. The wife obtained a * divorce 
 
 and married again during his life. Held, that the sepa- 
 rate use and restraint on anticipation revived. 
 
 Restraint on Anticipation by a Married Woman (/). 
 
 Rule 118. — Restraint hoiv imposed. — No particular form of 
 words is necessary in order to impose a restraint on anticipation 
 {per Lord Cranworth, V.-C, Re Ross's Trust, 1 Sim. N. S. at p. 
 199) ; but the restraint will not be imposed unless the language is 
 clear.'* 
 
 (/) See the Married Women's Property Act, 1882, 45&46 Vict. c. 75, s. 19. 
 
 separate use ceases on discoverture and does not revive on a subsequent mar- 
 riage; while in the other states the rule is that the separate use will revive 
 in the event of a remarriage. See cases cited above. 
 
 '* The rule as to the power of a married woman over her separate use varies 
 in the different states. The English courts decided that a feme covert could 
 dispose of her separate use as if she were a feme sole. This construction prac- 
 tically defeated the object for which the estate was created, and the clause 
 against anticipation was devised to remedy the evil. In this country a num- 
 ber of states have departed from the English rule, and hold that a married 
 woman has no power over her separate equitable estate other than is ex- 
 pressly given her by the instrument creating the estate. Such is the rule in 
 South Carolina, (Ewing v. Smith, 3 Dessaus. 417; Magwood r. Johnson, 1 
 Hill Ch. 228; Reid v. Lamar, 1 Strob. Eq. 27; Robiusont-. Dart's Exr., Dud. 
 Eq. 128); Pennsylvania, (Lancaster r. Dolan, 1 Rawle, 231; Wallace w. Gas- 
 ton, 9 Watts, 137; Jones' Appeal, 58 Pa. St. 369); Illinois. Mississippi, Ten- 
 nessee and Rhode Island, Swift?'. Castle, 23 111. 209; Bressler f. Kent, 61 
 111. 426, overruling Young v. Graff. 28 111. 20; Doty v. Mitchell, 9 Sm. &M. 
 (Miss.) 435; Marshall v. Stephens, 8 Hump. (Tenn.) 159, but see Young 
 V. Young, 7 Cold. (Tenn.)461; Metcalf r. Cook, 2 R. I. 355. The English rule 
 prevails in Alabama, California, Connecticut, Georgia, Kentucky, Maryland, 
 Minnesota, Missouri, New Jersey, North Carolina and Virginia. Jenkins r. 
 McConico, 26 Ala. 213; Bradford v. Greenaway, 17 Ala. 805; Miller v. New- 
 ton, 23 Cal. 554: Imlay v. Huntingdon, 20 Conn. 175; Dallas?;. Heard, 32 
 Ga. 604; Fears v. Brooks. 12 Ga. 200; Coleman v. Wooley, 10 B. Mon. (Ky.) 
 320; Burch v. Breckenridge, 16 id. 482; Buchanan v. Turner, 26 Md. 5; Pond 
 V. Carpenter. 12 Minn. 430; Kimm r. Weipert, 46 Mo. 532; Perkins v. Elliott, 
 8C.E. Green (N. J.), 529; Leaycraft v. Hedden, 3 Green Ch. (N. J.) 512; 
 ■Newlin v. Freeman, 4 Ired. Eq. (N. C.) 312; Vizonneau r. Pegram, 2 Leigh 
 (Va.) 183. In Vermont and Florida the English rule is followed to the ex- 
 
 302
 
 POWER TO ALIENATE SEPARATE ESTATE. * 302 
 
 Examples: (1) Restraint imposed. — Covenant in a marriage 
 settlement to settle the wife's after acquired property on trust to 
 pay the income to the wife or her appointees, to the intent that 
 the same might remain a separate personal and inalienable provi- 
 sion for her during the coverture, and on further trust to ])ay, 
 assign, or otherwise dispose of the same from time to time to the ' 
 wife's appointees by deed or will. Held, that the wife was enti- 
 tled to an interest during the coverture for her separate use with- 
 out power of anticipation, with power to appoint the reversion 
 expectant on the interest reserved to her during coverture: Spring 
 V. Pride, 4 De G. J. & S. 395. 
 
 Trust in a marriage settlement during the wife's life to receive 
 the income as it should become due, and pay it to such person as 
 she should from time to time appoint, or permit her to receive it 
 for her separate use, with a declaration that her receipt or the re- 
 ceipts of any person or persons to whom she might appoint it 
 after it became due should be discharges: Field v. Evans, 15 Sim. 
 375 (g). 
 
 Devise on trust for the testator's daughter and her 
 * assigns during her life, and to permit her to receive [ * 302 ] 
 the income for her separate use, with a direction that her 
 receipt alone or that of some person or persons authorized by her 
 to receive any payment of the income after such income should 
 have become due should, notwithstanding her marriage, be good 
 discharges: Baker v. Bradley, 2 Sm. & GifiF. 531; S. C., 7 De G. 
 M. & G. 597; see Re Smith, Chapman v. Wood, W. N. 1884, p. 
 181. Bequest to separate use "not to be sold or mortgaged; " 
 Steedman v. Poole, 6 Hare, 193. 
 
 Examples : ( 2 ) Restraint not imposed. —Payment of in- 
 come to be made to such persons as the wife "from time to time" 
 should direct; Pybus v. Smith, 3 Br. C. C 340; trust to pay in- 
 come " from time to time as the same should become due and be 
 received" '"into the own hands " of the wife; Glyn v. Baster, 1 
 Y. & J. 329; the interest to be paid "on her personal appearance 
 and receipt;" Re Rosses Trust, 1 Sim. N. S. 196; trust for sepa- 
 rate use of married woman for life, and after her death for her 
 appointees by deed or will, with a direction that any appoint- 
 
 (ff ) See the remarks on this case by Stuart, V.-C, 2 Sm. & Gif. at p. 561, 
 and by Knij;;ht-Bruce, L. J., 7 De G. M. & G. at p. 612, and the extract from 
 the minute book at p. 609 (note). 
 
 tent that a married woman can charge her separate estate for her own benefit. 
 Frary v. Booth, 'M Vt. 78; Lewis v. Yale, 4 Khi. 418. The Kn^lish rule was 
 adopted in New York. .Jacques v. Methodist Church, 17 Johns. It. nAH; 
 Dyertt). N. A. Coal Co., 20 Wend. 570; Gardner v. Gardner, 7 Paige, 112; 
 Mallory r. Vanderhcydcn, 1 Comst. 40.3; but subsequent cases have some- 
 what modified the rule in that state; see Yale r. Dederer, 18 N. Y. 265 and 
 same case 22 N. Y. 456. 
 
 303
 
 *303 RESTRAINT ON ALIENATION. 
 
 ment by deed should not come into operation till after her death: 
 Alexander' v. Young, 6 Hare, 398 (all these, except Pybus v. Smith, 
 are will cases). See also 1 \\'h. & Tud. L. C Eq. (5th ed. ) 573, 
 et seq. 
 
 Separate estate is alienable without express power. — It was 
 thought formerly, before the nature of separate estate was thor- 
 oughly understood, that a woman could not dispose of her sepa- 
 rate estate unless she had an express power to do so; and accord- 
 ingly, the older form gave the woman express power to dispose of 
 the property, with a direction that, until and in default of any ex- 
 ercise of the power, the income was to be paid to her for her 
 separate use. Restraint on anticipation annexed to power only. — 
 In some of the older cases, where the restraint on anticipation was 
 annexed to the power only, it was held that, though the property 
 could not be disposed of by anticipation under the power, yet it 
 might be disposed of under the proprietary right conferred by the 
 trust for separate use; Barrymore v. Ellis, 8 Sim. 1; but 
 [ * 303 ] *thi8 opinion is now overruled: Brown v. Bamford, 1 
 Phil. 620, followed in Harnett v. Macdougall, 8 Beav. 187. 
 
 Restraint annexed to a reversion. — It used to be considered that 
 the effect of a restraint on anticipation annexed to a reversionary 
 fund differed according as the fund did or did not produce in- 
 come. It was considered that if it produced no income, the 
 woman was entitled to have it paid to her on its falling into pos- 
 session; Re Croughton's Trusts, 8 Ch. D. 460; Re Clarke's Trusts, 
 21 Ch. D. 748; Re Bown, O'Halloranv. King, 53 L. J. Ch. 881, 
 27 Ch. D. 411; 50 L. T. 796; Re Coombes, Coombes v. Parpt, 
 W. N. 1883, 169; Re Taber, Arnold v. Katjess, 51 L. J. Ch. 721; 
 S. C. 30 W. R. 883; Re Sarel, 4 N. R. 321; S. C. 10 Jur. N. S. 
 876; (see i^e Gaskell, 11 Jur. N. S. 780, contra): and that any 
 attempt to dispose of it before it fell into possession failed; Re 
 Sykes' Trusts, 2 J. & H. 415; but that, on the other hand, if it 
 produced income, the trustees ought to retain it, and pay the in- 
 come only to her; Baggett v. Meux, 1 Coll. 138; S. C, on app., 
 1 Phil. 627; Re Ellis' Trust, Jj. R. 17 Eq. 409; Re Benton, Smith 
 v. Smith, 19 Ch. D. 277; Re Clarke's Trusts, 21 Ch. D. 748. 
 
 But in Re Boxen, 27 Ch. D. 411, where all the prior cases are 
 discussed, it was decided by the Court of Appeal that this distinc- 
 tion is erroneous, and that the effect of the restraint depends 
 entirely on the intention expressed. So that, if the fund itself 
 is given to the woman, she is entitled to have it paid to her, the 
 only effect of the restraint being to prevent her from dealing 
 with it before it falls into possession; and that, on the other hand, 
 if the income only is given to her, the trustees must retain the 
 fund, and pay the income only to her without anticipation. 
 
 304
 
 NEXT OF KIN. * 305 
 
 * CHAPTER XXII. [ * 304 ] 
 
 NEXT OF KIN. EXECUTORS. PERSONAL REPRESENTATIVES. 
 
 Next of kin, meaning of: Take as joint tenants: Next of kin ac- 
 cording to the statute take as tenants in common : Husband, 
 or icife, does not take as next of kin : Next of kin, ivhen as- 
 certained: Gifts to the '■^executors of A.," or to "A. xcith re- 
 mainder to his executors :^^ '■^Executors or administrators" 
 of A. take for benefit of A.^s estate: ^^Personal- represen- 
 tatives." 
 
 In applying the following rules it must bo remembered — first, 
 that by "next of kin" are meant the nearest relations according 
 to the rules of the Roman law : secondly, that husband and wife 
 are not in any sense of kin to each other, although a widow is 
 entitled to a share of her husband's property under the Statute 
 of Distributions, and a widower takes his wife's chattels real by 
 survivorship, her chattels personal by his marital right, and her 
 chosos in action on taking out administration to her. (See as to 
 the nature of the widower's interest, Elph. Introd. Conv., 3rd 
 edit., p. 268.) 
 
 Rule 119. — Next of kill. — "Next of kin" means the nearest 
 blood relations to the propositus as distinguished from next of 
 kin according to the Statute of Distributions. See Hawkins on 
 Wills, 97, et seq. 
 
 "The words 'nearest and next of kin' are perfectly ex- 
 empt from ambiguity, and in their general sense un- 
 quRstionably * denote the persons nearest in proximity [ * 305 ] 
 
 of consanguinity No evidence exists that the 
 
 parties intended to refer to the statute. The statute clearly ad- 
 verts to two classes, next of kin in equal degree, and next of kin 
 by right of representation; not confounding but expressly dis 
 tingaishing them;" wer Plumer, M. E., Brandon v. Brandon, 3 
 Swan. 318; S. C, on rehearing, 4 W. R. 533, u. This docisiou 
 was mentioned with approval by the Lords Commissioners Shad- 
 well and Bosanquet, in Ehnsley v. Young, 2 M. & K. 7.S0. 
 
 20 INTEliPliKTATlON OF DKEUS. 305
 
 *306 NEXT OF KIN TAKE AS JOINT TENANTS. 
 
 " The common use which is made of the term ' next of kin,' in 
 connection with the administration and distribution of personal 
 estates in cases of intestacy, may occasionally have given rise to 
 a notion, that the persons to whom the law gives the succession 
 are legally and for all purposes to be considered as the next of 
 kin; yet this does not appear to be a notion which can be sup- 
 ported in law. The construction given to the term ' next of kin,' 
 with reference to the statute of Car. II., shows that the next of 
 kin entitled to administration and distribution are not deemed to 
 be next of kin for all purposes; and I apprehend that, in all other 
 cases, the terms 'next or nearest of kin' must be construed ac 
 cording to their simple and obvious meaning, or according to the 
 le<yal construction of the whole instrument in which they occur; " 
 per Lord Langdale, M. R., \Vithy v. Mangles, 4 Beav. 358; S. C, 
 10 L. J, N. S. Ch. 391; 10 CI. & Fin. 215. 
 
 " The Statute of Distributions accurately preserves the dis- 
 tinction between ' next of kin ' and those to whom it directs the 
 distribution of the personalty. If there be no children, it directs 
 the distribution of the estate equally to every of the next of kin- 
 dred of the intestate, who are in equal degree, and those who 
 legally represent them; and then confines the representation 
 within brothers' or sisters' children; not treating the rights of 
 those who take by repi*esentation as belonging to them as next of 
 kin, but as derived from others, who, if they had lived, would 
 have been next of kin. If the familiar expression ' next 
 [*306] of kin under the statute' be considered * as having re- 
 ference to this provision of the statute, it will not be 
 found to be so inaccurate as has been supposed. The question, 
 however, is not whether ' next of kin under the statute ' has not 
 been inaccurately used as describing those who are entitled under 
 the statute, but whether the term ' next of kin,' without any re- 
 ference to the statute, has received any such judicial construc- 
 tion. A short examination of the cases will shovv that the con- 
 trary is established by a very great preponderance of authority. 
 .... I think that the appellant has wholly failed in proving 
 that the term next of kin, used simpUciter, has by a technical or 
 conventional construction obtained the meaning of 'those who 
 would be entitled in case of intestacy under the Statute of Dis- 
 tributions:' and I am, therefore, of opinion that these words 
 must be construed in their natural and obvious meaning of near- 
 est in proximity of blood;" 2^6?' Lord Cottenham, C, Withy v. 
 Mangles, 10 CI. & F. 248, 249, 253. 
 
 Reference to intestacy. — Death " unmamecV^ — It has been held 
 that "next of kin of equal degree," meant next of kin simpliciter: 
 Anon., 1 Mad. 36; and that "the persons legally entitled thereto 
 as the next of kin of A." meant his statutory next of kin: Kidd v. 
 Frasier, 1 Ir. Ch. R. 518; that an express reference to intestacy 
 is equivalent to a reference to the statute : Garrick v. Lord Cam- 
 306
 
 STATUTORY NEXT OF KIN TAKE AS TENANTS IN COMMON. * 307 
 
 den. 14 Yes. 372 (a will case) ; but this is not the case where the 
 reference is to death "unmarried:" Halfon v. Foster, L. R. 3 
 Ch. 505; or "sole and unmarried:" Re Webbers Settlement, 17 
 Sim. 221; S. C, 19 L. J. N. S. Ch. 445 (the case of a deed). 
 
 A trust for the next of kin of A. " of his own blood and family " 
 does not exclude next of kin of the half-blood: Cation v. Scar- 
 ancke, 1 Madd. 45; Brigg v. Brigg, 38 W. K. 454; 54 L. J. Ch. 
 464. 
 
 Rule 120. — ^^ Next of kin'^ take as joint tenants. — Under a 
 gift to, or trust for, the next of kin simpliciter, they take as joint 
 tenants. 
 
 Examples. — In a marriage settlement the ultimate 
 trust of the wife's property was " for such person or * per- [ * 307 ] 
 sons as at the time of her death shall be her next of 
 kin." The wife died, leaving a father, mother, and child. Held, 
 that thev took as joint tenants: Withy v. Mangles, 4 Beav. 358; 
 S. C, 10 CI. & F. 215. 
 
 ^Vhere the words were, " for the next of kin as if she had not 
 been married, and not including the husbands of both or either 
 of her sisters." Held, that the sisters who were her next of kin 
 took as joint tenants: Lucas v. Brandreth (No. 2), 28 Beav. 274. 
 
 See the cases on wills, 2 Jarm. 107. 
 
 Realty limited to '■'■next of kin.^' — If there be a settlement of 
 realty upon " next of kin " without any words of limitation, the 
 next of kin take as joint tenants for life only: Lucas v. Brandreth 
 (No. 2), 28 Beav. 274. Where the ultimate trust in a settlement 
 was for the wife's "next of kin of her own blood and family in 
 due course of administration, the same as if she had died a feme 
 sole, intestate, possessed thereof or entitled thereto," and there 
 was a covenant to settle after acquired property "on the like 
 trusts," it was held that real estate becoming subject to the cove- 
 nant passed under the ultimate trust to the heir at law of the 
 wife; Brigg v. Brigg, 33 W. E. 454; S. C. 54 L. J. Ch. 464. 
 
 ♦ 
 Rule 121. — Next of kin according to the statute. — Under a 
 limitation or trust of personalty in favour of the next of kin ac- 
 cording to the Statute, they take as tenants in common, in the 
 shares specified in the statute. 
 
 Example. — In a marriage settlement ultimate trust of wife's 
 property " for such person or persons as at the time of her death 
 shall be her next of kin under and according to the statute made 
 for the distribution of the estates of persons dying intestate, but 
 exclusively of " her husband " his executors, &c." Held, that the 
 
 307
 
 *308 HUSBAND NOT OF KIN TO WIFE. 
 
 statutory next of kia took as tenants in common: Re Banking's 
 Settlement, L. R. 6 Eq. 601. 
 
 See tbe cases on wills, 2 Jarm. 109. 
 
 Rule 122. — " Next of kin " does not include husband or wife. — 
 A trust for the next of kin, or next of kin according to the Statute, 
 does not include the surviving husband or wife of the propositus. 
 
 " The description of next of kin of the wife can in no respect 
 apply to the husband. He is entitled to the personal property of 
 
 his wifejwre mariti; her personal property vests in him 
 [ * 308 ] by the marriage (a). At * the death of the wife, if it is 
 
 necessary for him to have an administration to enable 
 him to get in her personal property, the administration granted 
 to him is granted to him as husband; and when you look at the 
 statutes, there is no law that gives the husband a right by force 
 of the statute to administer to his wife. The husband's right is 
 supposed in all the statutes. The statute 21 Hen. 8, c. 5, which 
 directs who shall have administration, takes no notice of the hus- 
 band: they are to grant it to the widow or the next of kin, or both. 
 That statute, therefore, does not take the widow to be the next of 
 kin. It takes no notice of the widower; for the law gives it to him; 
 and where it was necessary for him to have the authority of the 
 Ecclesiastical Court to enable him to obtain her personal property, 
 he had a right to it. The Statute of Frauds has a clause that 
 the Statute of Distributions shall not prejudice the right of the 
 husband; under an apprehension that his right might be con- 
 sidered to be affected by that statute. The husband is not of kin 
 to the wife, nor she to him. She is not next of kin, but takes as 
 widow;" per Lord Loughborough, C, Watt v. Watt, 3 Ves. 244. 
 See also Graff teij v. Humpage, 1 Beav. 46; S. C. on app., 3 Jur. 
 622; Cholmondeley v. Lord Ashburton, 6 Beav. 86; Kilner v. Leech, 
 10 Beav. 362. 
 
 Examples. — The husband did not take under a trust in a mar- 
 riage settlement for the wife's " next of kin or personal representa- 
 tive:" Bailey V. Wright, 18 Ves. 49; nor under a trust for " such 
 person or persons as at the decease of the wife would have be- 
 come entitled thereto under the statutes for the distribution of 
 the personal estate of intestates:" Noon v. Lyon, 33 L. T. N. S. 
 199. 
 
 Persons taking under prior trusts may take under ultimate trust 
 far next of kin. — It might be thought that where thgre is an ulti- 
 mate trust in a settlement for the next of kin, or next of kin ac- 
 
 {a\ See now the Married Women's Property Act, 1882. 
 
 308
 
 "next of kin" when ascertainrd. * 310 
 
 cording to the Statute, persons taking prior interests under the same 
 settlement would be excluded : but this is not the case. 
 
 * Examples. —In Elpisley V. Young, 2 My. & K. 780, [ *309 ] 
 the tenant for life took under an ultimate limitation as 
 one of the next of kin: in Withy v. Mangles, 10 CI. & F. 215, a 
 child who took an interest in the trust funds comprised in his 
 mother's marriage settlement, contingent on his attainincr twentv- 
 one, but who died under that age, took a share under the ulti- 
 mate trust for the mother's nest of kin: and in Smith v. Smith, 12 
 Sim. 317, and Ujiton v. Brown, 12 Ch. D. 872, the result was 
 similar. 
 
 Rule 123. — ^^ Next of kin''' when ascertained (b). — By the 
 '• uext of kin," or " next of kin according to the Statute," are 
 meant the persons who are next of kin, or next of kin according 
 to the Statute, at the death of the propositus. 
 
 Examples. — By a marriage settlement a fund was settled on 
 the wife, if she should survive the husband, for life, remainder to 
 their children who should attain twenty-one, &c. ; in default of 
 any such child, as the husband shoiild appoint; in default of ap- 
 pointment, in trust for his next of kin according to the statute 
 and as if he had died intestate. There was issue one son only. 
 The husband died first without having appointed; then the son 
 died under twenty-one, and lastly the wife died. Held, that the 
 fund vested in the son as his father's next of kin at the father's 
 death, and not in the persons who were next of kin at the son's 
 deatn; Smith v. Smith, 12 Sim. 317. 
 
 By marriage settlement personalty was settled on trust for 
 the separate use of A. (the intended wife) for life, with remain- 
 der for the issue of the marriage as B. (the intended husband) 
 should appoint, and in default of issue, for B., if then living, or 
 in case of his death, as he should by deed or will appoint, and in 
 default of appointment, ''then upon trust immediately after the 
 death of A. without leaving B., or any child or children, 
 * grandchild or grandchildren, her surviving, to pay the (' * 310] 
 said principal sum and all interest which may then be 
 due thereon to such person or persons as under the Statute of 
 Distributions would then be entitled to the same as the next of 
 kin of B. in case B. shall have died intestate." B. made no ap- 
 pointment; he died before A., without having any issue. Held, 
 that the statutory next of kin of the husband at his death, and 
 not thosn existing at the dcaih of the wife, were entitled to the 
 fund under this ultimate limitation: Day v. Day, Ir. K. 4 Eq. 
 885; S.C, 18 W. R. 417. 
 
 (6) Sec 3 Dav. Preo. 189, note: and as to wilLs, Hawkins, !)!> et acq. 
 
 309
 
 *311 "next of kin" when ascertained. 
 
 Personalty settled on marriage upon trusts for A. (the hus- 
 band), and B. (the wife), successively for life, and for the bene- 
 fit of the children, with an ultimate trust " if B. shall happen to 
 die in the lifetime of A., then the trustees shall and do, immedi- 
 ately after the death of A. and failure of issue," assign, &c., the 
 residue of the trust funds and premises to such persons as B. 
 shall appoint, and in default of appointment, " in trust for such 
 person or persons (other than and except A.) as shall then be the 
 next of kin of B., and would have been entitled^ thereto under the 
 statutes for the distribution of the personal estates of intestates, 
 in case she had died sole and unmarried and intestate; " B. made 
 no appointment; she died before A. without having any issue. 
 Held, that her next of kin at her own death, and not those at the 
 death of her husband, were entitled: iVheeley^ v. Addams, 17 
 Beav. 417. 
 
 See also Upton v, Broivn, 12 Ch. D. 872; Hunter v. T'edlie, 7 
 L. K. Ir. 454. 
 
 The rule does not apply if it is expressly stated that the next 
 of kin are to be ascertained at some other time. 
 
 Where the trust was " for such person or persons as at the 
 time of the death of A. (the husband) shall be^the next of kin of 
 B. (his wife), and would be entitled to her personal es- 
 [*311] tate as if she had died sole and unmarried," *B. died 
 in the lifetime of A. leaving five brothers, four of whom 
 died in the lifetime of A. Held, that the surviving brother alone 
 was entitled: -Re Webber's Settlement, 17 Sim. 221 ;~S. C, 19 L. 
 J. N. S. Ch. 445. 
 
 In Finder v. Finder, 28 Beav. 44, where the ultimate trusts in 
 a marriage settlement were: — " but if A. (the wife) shall die in 
 the lifetime of B. (the husband), then, after the decease of B. and 
 such failure of issue as aforesaid," as A. should appoint, and in 
 default of appointment, " in trust for the person or persons who, 
 under the statutes made for the distribution of estates of intes- 
 tates, would then be entitled to the personal estate of A. in case 
 she had survived B. and had died possessed of the same intes- 
 tate," to be divided, &c. ; and in Chahuersv. North, 28 Beav. 175, 
 where the trusts were " for such person or persons as, at the de- 
 cease of the wife, would, under the statutes for the distribution of 
 intestates' effects, have been entitled to her personal estate, as her 
 next of kin, in case she had survived her husband and afterwards 
 died intestate; " it was held that the persons intended were those 
 who would have been the wife's next of kin if she had survived 
 and died imtoediately after her husband. 
 
 " Then'''' meaning of. — It is pointed out by Thesiger, L. J., in 
 Mortimer v. Slater, 7 Ch. D. 329 (a case on a will), that there are 
 three cases; First, where the word "then" is attached to the de- 
 310
 
 THE EXECUTORS OF A LIVING PERSON. * 312 
 
 scription of the class — in which case the class is to be ascertained 
 at the time so pointed out, /. e., the time of distribution; Second, 
 where words of futurity without any adverb of time are attached 
 to the description of the class; in which case the class is to be 
 ascertained at the death of the propositus; Third, where the word 
 "then" is used, not in connection with the description of the 
 class, but in connection with the time when the interest of the 
 class is to come into being; in which case the class is to be ascer- 
 tained at the death of the propositus. See also Hunter v. Tedlie, 
 7 L. R. Ir. at 456. 
 
 See the cases collected 2 Jarman on Wills, 139. 
 
 Next of kin of name of B. — In the case of Doe d. Wright v. 
 Plnm}:)tre, 3 B. & Aid. 474, where real estate was settled 
 after divers limitations * "to the use of all and every [ * 312 ] 
 the nearest of kin in equal degrees to D. M. at the time 
 of her death of the name of B., share and share alike as tenants 
 in common, their heirs and assigns," the Court intimated that the 
 limitation would admit of four different constructions, viz., \st, 
 the union of both characters, i. e., that the party taking should be 
 the nearest of kin, and should also have the name of B. ; 2ndly, 
 that the party taking should be the nearest of kin of the stock 
 and blood; 'Srdh/, that he should be nearest of kin at fhe death of 
 D. M. bearing the name of B. : and i:thly, that he should be the 
 nearest of kin at the death of D. M. born of the name of B. ; and 
 without deciding which was the correct construction, held that 
 the fourth was not. See as to this case, 2 Jarm. 110. 
 
 Rule 124. — " The executors of A." — A limitation, or trust of 
 personalty, in favour of the executors of A. (a living person), or 
 in favour of A. (a living person) for life, with remainder either 
 mediately or immediately to his executors, vests the property ab- 
 solutely in him, subject in the last-mentioned case to the rights 
 of any persons taking in remainder after the life estate. See 
 Shep. T. 163, citing Cranmer^s Case, Dy. 309; Spark v. Spai'k, 
 Cro. El. 666; Bac. Abr. Remainder (a. 2.) p. 733. 
 
 " If a man letteth lands to another for life, the remainder to 
 him for twenty-one years, he hath both estates in him so dis- 
 tinctly as he may grant away either of them If a man 
 
 make a lease for life to one, the remainder to his executors for 
 twenty-one years, the term for years shall vest in him; for ev(Mi 
 as ancestor and heir are correlativa as to inheritance; (as if an 
 estate for life be made to A., the remainder to B. in tail, tlie re- 
 mainder to the right heirs of A., the fee vesteth in A. as it had 
 been limited to him and his heirs;) even so are the testators and 
 the executors coii^elativa as to any chattel. And therefore if a 
 
 311
 
 *814 THE EXECUTORS OF A LIVING PERSON. 
 
 lease for life be made to the testator, the remainder to his ex- 
 ecutors for years, the chattel shall vest in the lessee himself as 
 well as if it had been limited to him and his executors; " Co. 
 
 Lit. 54b. 
 [ * 313 ] * " There is a great difference between a limitation to 
 the executors and administrators and a limitation to the 
 next of kin. The former is, as to personal property, the same as 
 a limitation to the right heirs as to real estate: but a limitation 
 to the next of kin is like a limitation to heirs of*a particular des- 
 cription; which would not give the ancestor, having a particular 
 estate, the whole property in the land;" per Grant, M. R., Ander- 
 son V. Daivson, 15 Ves. 536. 
 
 '■''Executors'''' and "'next of kin^'' distiuguished. — The distinc- 
 tion between "executors" and "next of kin" is well illustrated 
 by Grafftey v. Humjjage, 1 Beav. 46, where, by a marriage settle- 
 ment, the ultimate trust of certain specified property of the wife 
 was for her next of kin; and the settlement contained a covenant 
 by the husband to st^ttle the other property of the wife on the 
 same trusjts as those of the specified property. At the date of the 
 settlement certain property not mentioned in the settlement stood 
 limited by a will on trust for the wife for life, remainder to her 
 children, remainder as she should appoint, remainder " to her ex- 
 ecutors, administrators, or assigns.^^ The husband survived the 
 wife; there were no children, and the wife made no appointment. 
 Held that the last-mentioned property passed to the husband as 
 his wife's administrator, and was bound by the covenant. S. C. 
 on app., 3 Jur. 622. 
 
 " The authorities fully establish that the effect of a settlement 
 by deed limiting property to the executor or administrator of the 
 settlor is to make such property subject to the disposition of the 
 settlor by will, or to be dealt with under the Statute of Distribu- 
 tions; per Lord Truro, C, Mackenzie v. Mackenzie, 3 Mac. & Gor. 
 559. 
 
 Where trust funds were settled to the separate use of a married 
 woman for her life, and after her death upon trust for such per- 
 sons as she should appoint by will, and in default of appointment 
 for her executors or administrators, she (having become a widow) 
 applied for a transfer of the funds to herself and her as- 
 [ * 314 ] signees, offering * to release her power of appointment. 
 Held, that she was absolutely entitled to the trust funds: 
 Page v. So2)er, 11 Ha. 321. 
 
 See also Daniel v. Dudley, 1 Phil. 1; on app. from 11 Sim. 163; 
 Allen V. Thorp, 7 Beav. 72; Colliery. Squire, 3 Russ. 467; Hames 
 V. Hames, 2 Keen, 646; Holloivay v. Clarkson, 2 Ha. 521; Att- 
 Gen. V. Malkin, 2 Phil. 64; Re Seymour's Trusts, Johns. 472; 
 Avern v. Lloyd, L. R. 5 Eq. 383 (a will case); Horseman v. Ab- 
 bey, 1 Ja. & W. 381. 
 
 312
 
 EXECITORS TAKE FOR BENEFIT OF TESTATOR'S ESTATE. * 315 
 
 But the coatext may show that " executors or administrators " 
 means " next of kin." 
 
 " Execufoi'S or administrators of her own family ^ — Where in 
 a marriage settlement the laltimate trust of the wife's fortune was 
 "for her executors or administrators of her own family," and of 
 the husband's fortune " for his executors or administrators of his 
 own family," it was held that in the wife's case this meant her 
 next of kin at her death, and in the husband's case his executors 
 or administrators only: Smith v. Dudley, 9 Sim. 125 (but see 
 the dictum of Cottenham, C, Daniel v. Dudley, 1 Phill. at p. 6). 
 
 ^^ Executors, administrators, and assigns.'^ — "Executors, ad- 
 ministrators, and assigns" cannot mean next of kin; per Lang- 
 dale, M. R., Grafftey v. Humpage, 1 Beav. at p. 52. (Why not?) 
 
 Rule 125. — ^'Executors" take for benefit of their testatoi'^s 
 estate. — Any interest taken by the executors or administrators of 
 A., under a trust for "A., his executors or administrators," or 
 " the executors or administrators of A.," is taken by them as part 
 of A.'s estate: Collier v. Squire, 3 Russ. 467; Hou-ell v. Gayler, 5 
 Beav. 157; Morris v. Hoives, 4 Ha. 599; Daniel v. Dudley, 1 Phil. 
 1 ; Wellman v. Boivring, 3 Sim. 328. 
 
 The construction is not altered by the addition of the 
 words "for their own use and benefit:" * Hames v. [*315] 
 Hames, 2 Keen, 646; Meryon v. Collett, 8 Beav. 386; S. 
 C, 14 L. J. N. S. Ch. 369. 
 
 " It is extremely improbable that the settlor, executing a mar- 
 riage settlement, and professing that his object was to mak-- a 
 provision for his intended wife, and the issue of the marriage, 
 should silently intend to make a provision for the person who 
 should chance to be his administrator — perhaps a small creditor — 
 perhaps a person to whom administration might be granted 
 durante minori oetate, or upon some other contingency; and un- 
 less the words are incapable of any other construction, and the 
 Court is absolutely compelled, by force of them, to impute that 
 highly improbable intention, that conclusion ought not to be 
 adopted; " Hames v. Hames, 2 Keen, 650; S. C, 7 L. J. N. S. Ch. 
 
 123. "I think it probable that the object was to use 
 
 words making it clear to the trustees that they might safely trans- 
 fer the whole fund to his executors and administrators, and he 
 thereupon relieved them from their trust; tliat the fund was to 
 be disposed of by the executors or administrators without the 
 trustees being under the necessity of looking to its application; 
 and that the words were not used for the purpose of placing the 
 money in the hands of an executor or administrator for his own 
 
 313
 
 *316 PERSOJSIAL REPRESENTATIVES. 
 
 personal enjoyment, but for the purpose of enabling him tomak^ 
 a proper application of it, without the interference of the trus- 
 tees. As far as the trustees were concerned, it was to be the ab- 
 solute property of the legal personal representatives; " per Lord 
 Langdale, M. R., Meryon v. Collett, 8 Beav. 394. See also Mar- 
 shaliv. Collett, 1 Y. & C. Exch. 232. 
 
 Covenant in lease of land by lessor with the lessee, '' his exe- 
 cutors, administrators, and assigns," that if the lessee, his exe- 
 cutors, administrators, or assigns, should at any lime thereafter be 
 desirous of purchasing the fee simple of the demised land, and 
 should give notice in writing to the lessor, his heirs, and assigns, 
 then the lessor, his heirs, and assigns would accept a named sum 
 
 for the purchase of the fee simple, and on receipt 
 [* 316 ] thereof * would convey the fee simple to the lessee, his 
 
 heirs or assigns, or as he or they should direct. Held, 
 that the option to purchase was attached to the lease and passed 
 with it : that on the death of the lessee intestate it consequently 
 passed with the lessee's personal estate to his administrator, and 
 that the administrator could not make a good title to the fee 
 simple, which he had purchased under the option, without the 
 concurrence of the statutory next of kin of ihe lessee : Re Adams 
 and The Kensington Vestry, 24 Ch. D. 199; affirmed 32 W. R. 
 883; 27Ch. d. 394. 
 
 Rule 126. — Personal representatives. — A trust of personalty 
 for the "personal representatives" of A. is a trust for his exe- 
 cutors or administrators in their representative character. 
 
 " I take it to be clear that I must construe the words ' such 
 person or persons as shall be her personal representative or re- 
 presentatives ' according to their ordinary meaning, and that or- 
 dinary meaning is ' executors and administrators ; ' that the words 
 being in a marriage settlement, as distinguished from a will, are 
 not to be taken as having other than their ordinary meaning, 
 unless there is something in the context to give tbem a different 
 meaning. The question, then, is whether, upon the construction 
 of this particular instrument, the words have aoy other than their 
 ordinary meaning; " per Hall, V.-C, Besfs Settlement Trusts, L. 
 R. 18 Eq. 691. See also Chapman v. Chapman, 33 Beav. 556; 
 Dixon y. Dixon, 24 Beav. 129; Re Henderson, 28 Beav. 656; Re 
 Wyndham's Trusts, L. R. 1 Eq. 290; Alger \. Parrott, L. R. 3 Eq. 
 328; all cases of wills. 
 
 Next of kin held entitled on context. — But the context may 
 readily show that " personal representatives " means next of kin. 
 
 The next of kin were held entitled in Robinson v. Evans, 
 314
 
 PERSONAL REPRESENTATIVES. * 317 
 
 22 W. R. 199; S. C, 43 L. J. Ch. 82, where tho 
 * words were "in trust for the person or persons wli > [*317 j 
 should happen to be the legal personal representatives 
 of A. at the time of her death; " in Briggs v. Upton, I,. R. 7 Ch. 
 376, where the words were " pay to legal representativ* s in a due 
 course of administration" (in both of which cases the words 
 "executors and administrators" were used in other parts of the 
 deed); and in Wilson v. Pilkington, 11 Jur. 537; S. C, 16 L. J. N. 
 S. Ch. 169, where there was a trust for "the personal representa- 
 tives in a legal course of administration." 
 
 " Next of kin or personal representative of A. in a due course 
 of administration according to the Statute of Distributions," 
 means the statutory next of kin to the exclusion of the widow of 
 A..: Kilner v. Leech, 10 Bea. 362. 
 
 Legal representatives. — As to the meaning of "legal represen- 
 tatives," see Topping v. Hoivard, 4 De G. & Sm. 268; "next of 
 kin or personal representative," see Bailey v. Wright, 18 Ves. 49; 
 S. C, 1 #Swanst. 39; "next personal representatives," see Stock- 
 dale V. Nicholson, L. R. 4 Eq. 359; and that "representatives" 
 applied to real estate means the heirs, see the dictum of Romilly, 
 M. R. in Chapman v. Chapman, 33 Beav. 556; as to "represen- 
 tatives," meaning the persons who take under the Statutes by 
 representation, see Lindsay v. ElUcott, 46 L. J. Ch. 878. 
 
 As to gifts by will to " representatives," &c., see Hawkins, 106, 
 et seq. 
 
 Misce llaneotis. 
 
 Gift of personalty to " heirs.''^ — As to gifts, Independent or sub- 
 stitutional, of personalty to the " heirs " of A., see ante, Ch. XVII., 
 Rules 94 and 95, p. 257; to the "heirs of the body" of A., ibid., 
 pp. 260, 262. 
 
 Of realty to "A. and his executors,^' &c. — Realty limited to A. 
 and his executors; see 1 Preston, Estates 30, where he says, "a 
 limitation extending a grant to the executors, will not in any deed 
 enlarge the estate; the estate will be of the same quantity, not- 
 withstanding the executors are named, as it woiald have been in 
 case no mention bad been made of them." See Re Bird, 3 Ch. 
 D. 214 
 
 315
 
 *318 "issue," etc., words of puechasb. 
 
 [ * 318] * CHAPTER XXIII. 
 
 ISSUE (a). CHILDREN. MARRIAGI. 
 
 "Jsiue" and ^^ children ^^ always words of purchase : '^ Issue,' ^ 
 meaning of: cut down to children by context : " Children,^' 
 meaning of: may mean Grandchildren, &c. : Trust for chil- 
 dren " living at " a particular time includes a child en ventre 
 at that time: " To he horn " or " begotten " ; " Children " 
 prima facie means legitimate Children: Meaning of '^legit- 
 imate " ; " Children " may mean illegitimate children : Gift 
 to unborn illegitimate Children : Illegitimate Child en ventre : 
 Gift to "A. and his issue " ; " Mai-riage " ; " Under Cover- 
 ture " ; Death- " unmarried,'' or " without having been mar- 
 ried." 
 
 Rule 127. — ''Issue,'' "■child," &c., always words of purchase. — 
 In a deed " issue," " child," or " children," are always words of 
 purchase." 
 
 [a] See Chapter XVI, page 246. Death without Issue. 
 
 '^ The word " children when used in a deed or a will applies primarily to 
 a specific or determinable class; it is a designntio persons', and indicates not 
 inheritable succession, but individual acquisition. It is a word not of lim- 
 itation but of purchase. Dunn v. Davis, 12 Ala. 135; Furlow v. Merrill, 23 
 Ala. 705; Est. of Utz, 43 Cal. 201; Beacroft v. Strawn, 67 111. 28; Turner v. 
 Patterson, 5 Dana (Ky.\ 295; Anoble v. Patch, 3 Pick. 360; Tucker v. Stites, 
 39 Miss 196; Fales v. Currier, 55 N. H. 392; Stokes v. Tilly, 9 N. J. Eq. 
 1.30; Rogers v. Rogers, 3 Wend. (N. Y.) 503; Chrystie v. Fife, 19 N. Y. 344; 
 Guthrie's App., 37 Pa. St. 9; Daley v. Koons, 90 Pa. St. 246; Bowers v. 
 Bowers, 4 Heisk. (Tenn.) 293; Moon v. Stone's Exr., 19 Graft. (Va.) 130. 
 
 To this rule there is no exception in the case of deeds. Wolfer v. Margen- 
 thal. 91 Pa. St. 30. But in a will "children" may be construed a word of 
 limitation, where there is a clear intent to so use it. Echols v. .Jordan, 39 
 Ala. 34; Moran v. Dillihay, 8 Bush. (Ky.) 434; Jordan v. Roach, 32 Miss. 
 482; Jones Exr. v. Jones, 13 N. J. Eq. 236; Haldeman v. Haldeman, 40 Pa. 
 St. 29; MeiTyman ?;. Merryman, 5 Munf. (A^i.) 440. But "conjectures, 
 doubt and even equilibrium of intention are not sufficient." The intention 
 must be rendered clear by the words of the testator. Guthrie's Appeal, 37 
 Pa. St. 9; In re Saunders, 4 Paige (N. Y.), 293. 
 316
 
 •'issue,'' etc.. words of purchase. * 320 
 
 If a man give lands or tenements to a man et semini suo, or 
 exifibus eel proUbiis de corpore suo, to a man and to his seed, or 
 to the issues or children of his body, he hath bnt an estate for life; 
 for albeit that the statute providet'h that voluntas douatoris secun- 
 dum formam in charta doni sui manifeste expressam de coetero ob 
 servettir, yet that will and intent must agree with the rules of law, 
 and of this opinion was our author himself, as it appeareth in his 
 learned reading on this statute, where he holdeth, if a man giveth 
 land to a man et exifibus de corpore suo legitime procre- 
 andis or semini suo he hath but an estate * f or life for [ *H19 ] 
 that there wanteth words of inheritance; Co. Lit. 206. 
 
 "The word ' issue' in a will may be a word of limitation, but 
 in a deed is always a wcTrd of purchase;" ]jer Hardwicl<e, C, 
 Bagshawe v. Spencer, 2 At. 582; per Kenyon, C. J., Doe v. Collis, 
 4 T. K. 299. 
 
 . " ' First issue ' are words of purchase; " Letvis Bowies' Case, 1 1 
 Rep. 796; S. C. Tud. L. C. R. P. 
 
 " Issue male," would necessarily take by purchase; per Sugden, 
 C Rochfort V. Fitzmaurice, 2 Dr. & War. at p. 17. 
 
 The reason for the rule is stated as follows in 2 Fearne, C. R. 
 249, s. 509:— 
 
 " In a deed no word except the word 'heirs ' will pass an estate 
 of inheritance, and hence the word 'issue' cannot there be a 
 word of limitation. It is therefore a word of purchase in this 
 case, because that is the only construction by which it can be- 
 come operative, not because it is aptly a word of purchase." 
 
 Example. — Lease for three lives to A., her executors, &c. A. 
 assigned to a trustee, to the use of B. for life, and afterwards of 
 his issue, and for want of such issue, over; B. died leaving a son 
 and a daughter. Held, that they took as joint tenants for life: 
 Williams v. Jekyl, 2 Ves. sen. 681. 
 
 As to the construction of " issue " in marriage articles, see post, 
 Chapter on "Marriage Articles." 
 
 Limitation to ^Hssue'" gives life estates only. — It foUows-that a 
 limitation of real estate to "issue" gives life estates only: Roch- 
 fort V. Fitzmaurice, 2 Dr. & War. at p. 17; Barron v. Barron 8 
 Ir. C. R. 300; BHtzherbert v. Heathcote, cited in Bayley v. Mor- 
 ris, 4 Ves. 794. 
 
 A limitation of realty to "A. and his issue," there being no 
 issue alive at the date of the deed, gives a life estate to A., and 
 the issue take nothing, even if the limitation is in re- 
 mainder, and issue are born before it takes effect; * Make- [ * 320 ] 
 piece V. Fletcher, 2 Com. Rep. 457; Wheeler v. Duke, 1 
 Cr. & Mee. 210; Daivson v. Dawson, 13 Ir: L. R. 472. 
 
 317
 
 * 321 ISSUE, 
 
 Personalty. — We- have not been able to find a case of an im- 
 mediate gift by deed of personalty to "A. and his issue," but it 
 is probable that if there were no issue in existence, A. would 
 take, and if there were issue in existence, A. and the issue then 
 living would take jointly. That the issue take per capita, see 
 Leigh v. Norbunj, post, 322, and jointly, Davenport v. Banbury, 
 '6 Ves. 257. 
 
 Issue. 
 
 Rule 128. — ^^ Issue ^^ — The word ^Hssue'''' occurring in a deed, 
 prima facie mQQMS descendants ; but the context may shew that 
 it means children. 
 
 " The word ' Jss we ' is an ambiguous word. In the ordinary 
 parlance of laymen it means children, and only children. When 
 you talk of what issue a man has, or what issue thnre has been 
 of a marriage, you mean children, not grandchildren, or great 
 grandchildren. But in the language of lawyers, and only in 
 that language, it means ' descendants ' " ; per James, L. J., 
 Ralphs. Carrick, 11 Ch. D. 883. See also pt-r Jessel, M. R., 
 Morgan v. Thomas, 9 Q. B. D. at p. 646. 
 
 " It is clearly settled that the wor<l ' issue,' uncontined by any 
 indication of intention, includes all descendants. Intention is 
 required for the purpose of limiting the sense of that word, re- 
 straining it to children only;" jjer Grant, M. R., Leigh v. Nor- 
 hxiry, 13 Ves. 344. 
 
 " The law I take to be that ' issue ' primCi facie, means all de- 
 scendants; but the word may, by the context, get the 
 
 meaning of ' children ' and be so limited. The onus of proving 
 that the word is used in that restricted sense lies upon those who 
 assert that construction ; " per Sullivan, M. R. (Ir. ), Denis' Trusts, 
 Ir. Rep. Eq. 86. 
 
 Examples. "Issue" meaning " descendants. "—Volun- 
 tary settlement of real estate on the settlor for life, re- 
 mainder to his nephew John for life : remainder 
 [ * 321 ] to his * sons successively in tail male ; remainder 
 to four persons (three of whom, were the testator's 
 sisters, and the fourth was his niece), and their heirs, on 
 trust, that they or the survivor, or heir of such survivor, should 
 sell tne premises; and that the money raised thereby might be 
 equally divided between the four persons, or the respective issues 
 of their bodies, in case they, or any of them should be dead at 
 the time of such failui'e of issue male of John, share and share 
 alike, viz., to each of them, or their respective children, one- fourth 
 part thereof; provided that if any of them should be dead with- 
 318 .
 
 ISSUE. * 322 
 
 out issue, when there should be such a faihire of issue of John, 
 then to be equally divided among the survivors or their respective 
 children, in case any of them also should be dead, leaving issue 
 of their bodies. John died without issue. At the time of his 
 death none of the four persons named in the will were living. 
 The niece had died without issue. Of one of the sisters there 
 were children living; of another, children and great grandchild- 
 ren; of the third, only grandchildren. The contention was that 
 the use of the word "children" restricted the meaning of the 
 word "issue.'' But Lord Hardwicke came to the conclusion that, 
 having regard to the fact that the testator must have contem- 
 plated that the ultimate trust might take effect after a long lapse 
 of years, when it was more probable that grandchildren and great 
 grandchildren would be living than children, the word "issue" 
 must be construed strictly as including the grandchildren and 
 greatgrandchildren; Wyth \. Blackman, 1 Ves. sen. 196; S. C 
 stih nom. Wythe v. Thiirlston, Amb. 555. See observations on 
 this case, 3 Ves. 257. 
 
 Settlement on marriage of personalty on husband for life, re- 
 mainder (subject to payment of an annuity to the wife) to such 
 persons as the husband should by deed or will appoint; in de- 
 fault, for his issue. He had no children by the marriage, but he 
 had children and grandchildren by a former marriage. Held, 
 that the children by that marriage,, all of whom survived 
 him, and the grandchildren living at his death were * en- [ * 322 ] 
 titled equally per capita ; Leigh v. Norbury, 13 Ves. 340. 
 
 J., by a voluntary settlement, " in order to make some provis- 
 ion for his daughter, M., the wife of T., and for her issue by T." 
 gave property on trust for M. for life, " and upon the decease of 
 M., leaving issue by T., upon trust for such issue respectively;" 
 M. had issue by T., one daughter only, who died in M.'s lifetime 
 leaving children. Held, that such children were entitled as 
 •'issue; " South v. Searle, 4 W. E. 470. 
 
 Bond given on marriage for payment to the husband within a 
 limited time after the obligor's death, "if any of the issue of the 
 marriage should be living at that time." The children of the 
 marriage all died before the obligor, leaving grandchildren who 
 •were living at the time appointed for payment. Held, that the 
 grandchildren were "issue" within the meaning of the bond: 
 Haydon v. Wilshere, 3 T. R. 372. 
 
 Where there was a power of appointment between the brothers 
 and sisters " who shall bo then living, and the issue of any one or 
 more of them as shall be then dead, leaving issue," with a gift in 
 default of appoiritn)ent to the same persons "equally to be di- 
 vided among them as tenants in common, the issue of any de- 
 ceased brother or sister to take only such share as such brother 
 or sister would have taken in case he or she was then living, and 
 the children of each deceased brother and sister, if more than one, 
 
 319
 
 * 324 ISSUE. 
 
 to take in equal shares as tenants in common between themselves." 
 Held, that "issue" was not confined to children: Harrison v. 
 Symons, 14 W. K 959. 
 
 Post-nuptial settlement of personalty, made in pursuance of 
 ante- nuptial agreement, on trust (subject to life interests to bus- 
 band and wife), for "the issue of the marriage" as the wife 
 should appoint; in default, as the husband should appoint; in 
 default, for " the child or children of the marriage equally among 
 them, and the issue of any of them who may have died leaving 
 
 lawful issue, the whole issue of any one so dying re- 
 [ * 323 ] ceiving the * share that would have belonged to their 
 
 deceased parent." Held, that " issue " was to be taken 
 in its proper sense: Donoghue v. Brooke, Ir. K. 9 Eq. 489. 
 See also Re Howard's Trusts, 7 Ir. Ch. R. 344. 
 
 ^^ Issue " restricted to children. — It is difficult to lay down any 
 rule as to what words will cut down the meaning of " issue " to 
 " children; " although slight indications of intention in marriage 
 articles (a) or a will suffice to show that "issue" is to be con- 
 strued "children," this is not the case in a marriage settlement 
 
 "The Court has often laid it down that marriage articles are 
 to be treated only as a memorandum of intentions, which are to 
 be carried out in such a way as to effect the intention of the par- 
 ties. But the Court never deals in that way with an executed 
 settlement: it always takes such an instrument as it finds it. With 
 regard to wills the Court always looks at the intention of the 
 testator, and adopts in practice, if not in theory, a much more be- 
 nignant rule of construction;" per Pearson, J., Re Warreyi's 
 Trusts, 26 Ch. D. at p. 217. 
 
 The only dictum that we have been able to find to the contrary 
 is in Re Dixon's Trusts, Ir. R. 4 Eq. 12, where Christian, L. J., 
 says, " when a testator, by his wall makes a gift or a limitation to 
 the issue of another, there is nothing in the nature of the occasion 
 of itself to suggest any restriction upon the presumptively indefi- 
 nite signification of the word issue. But the reverse is the case 
 when the instrument is a marriage settlement (which the recitals 
 in this deed show that, though executed after marriage, it was in 
 effect); for there the occasion itself, the very business in hand, 
 suggests that 'issue' is used as a synonym for children. Why? 
 Because the proper objects of a marriage settlement are the chil- 
 dren of the intended marriage. Grandchildren or great- 
 [ *324 ] grandchildren *are never thought of on such occasions, 
 as objects of independent provision; portions are pro- 
 vided for the children, and they are thereby enabled, when their 
 own turn comes to be married, to make provision for their chil- 
 
 (a) See post, Chapter on Marriage Articles, rule 198, p. 549. 
 320
 
 issiE. *325 
 
 dren. But issue more remote than children are rarely, if ever, 
 directly within the scope of a marriage treaty; and therefore it is 
 that, in dealing with such an instrument, the very occasion sug- 
 gests that if ' issue ' be the word used, it is meant in the sense, to 
 which it so easily lends itself, of ' children.' Thus the very nature 
 cf the instrument helps to construe the word. Another clue is 
 this — the constant association with ' issue ' of the words ' of the 
 marriage ' or ' of him.' Thus, in the recitals, it is ' to make a pro- 
 vision for the said Anne, and the present and future issue of the 
 said Anne, by him, the said Thomas Williams,' and again, "in 
 order to make a provision for the said Anne and the issue of said 
 marriage ' — and in the limitations themselves, the same form of 
 expression is twice repeated, 'to and amongst the present and 
 future issue of the said marriage.' Now, what is the force of 
 those associated words? Plainly, to my mind, to particularize 
 the sense of the word 'issue ' to that of the immediate otTspring 
 of that particular marriage — the issue of the union of these two 
 individuals, and not the issue of any other union; in other words, 
 the children of these two." 
 
 Examples. "Issue " restricted to " Children." — Where a 
 marriao^e settlement recited an intention to provide for "the issue 
 of the said intended marriage,"' and the trusts, after the deaths of 
 the husband and wife, were for the "issue of the said marriage" 
 as the hasband should appoint, and in default of appointment, 
 for " such issue " equally; but if there should be no "issue " of 
 said intended marriage, or in case all such " issue " should die 
 under twenty-one or before marrying, then in trust for the sur- 
 vivor of the husband and wife, it was held that "issue" meant 
 " children; " Re Denis,lT. B. 10 Eq. 81. 
 
 By marriage settlement a fund was settled (after the 
 * death of the survivor of the husband and wife) in trust [ * 325 ] 
 for "the children then living," to be paid at twenty-one; 
 and in case both the husl>and and wife should die " xcitliont leav- 
 ing any lairful issiie,^' then as the husband should appoint, and 
 in default of appointment, " in case there should be no child or 
 children as aforesaid," over. The children of the marriage all 
 died in the lifetime of the husband and wife, leaving children 
 who survived their grandparents. Held, that the gift over took 
 effect : Re Heafli, 28 Beav. 193. 
 
 A settlement of personalty contained trusts for the children as 
 tenants in common, "the share or shares of such of the said chil- 
 dren as shall be a son or sons to be considered as a vested and 
 transmissil)le interest at his or their respective age or ages of 
 twenty-one years, or dying under that age leaving lawful issne of 
 his or their body or bodies lawfully l)egotten, living at his or 
 their death or respective deaths, and of such of them as shall be 
 a daughter or daughters at her or their like age or ages, or day 
 
 21 IXTKKI'l'.KTATIOX OI' DICKDS. 321
 
 *326 ISSUE. 
 
 or days of marriage, respectively, which shall first happen;" and 
 a covenant for the settlement of the after- acquired property of 
 the wife upon trust for her for life, and afterwards " for all and 
 every the issue of the marriage upon the same trusts," with a gift 
 over in case no child or children should attain vested interests, 
 &c. Held, that the word "issue" in the covenant meant "chil- 
 dren:" Marshall v. Baker, 31 Beav. 608. 
 
 By marriage settlement, a fund was settled in trust after the 
 deaths of the husband and wife for the issue as the husband 
 should appoint, and if there should be only one child living at 
 the death of the survivor of the husband and wife, then in trust 
 for such one child, with a gift over, if there should be no issue of 
 the marriage living at the death of the husband. Held, that 
 "issue" meant "children:" Re Meade's Trusts, 7 L. K. Ir. 51. 
 
 Lease for lives to A., her executors, &c. A. assigns for value 
 
 to the use of B. for life, and afterwards to the use of his 
 
 [*326] issue lawfully begotten, and for want of such * issue 
 
 over. Held, that "issue meant children:" Williams v. 
 
 Jekyl, 2 Ves. sen. 681. 
 
 ^^ Male issue'"' meaning ^'^ sons."" — Limitation in a voluntary 
 settlement to the use of A. for life, remainder to the use of "the 
 first male issue lawfully begotten by A. which should attain the 
 age of twenty-one years, and to the heirs and assigns of such 
 male issue for'ever." Held, that "male issue" meant sons 
 (stress was laid oh the words "begotten by A.," and there were 
 other expressions which helped this construction): Hampson v. 
 Brandivood, 1 Mad. 381, see p. 388. 
 
 In a limitation to A. for 'life, remainder, after his decease, to 
 his "issue male, and for want of such issiie," to A. in fee, the 
 words " issue male " were construed " sons: " Fitzherbert v. Heath- 
 cote, cited 4 Ves. 794. 
 
 ^^ Issues females.'''' — Limitation in remainder to the "issues fe- 
 males," of their bodies. Held, that daughters were meant: Earl 
 of^ussex V. Temj)le, 1 Ld. Bay. 310. 
 
 " Issue " 7'estricted to children hy reference to parent. — Some- 
 times a reference to the "parent" of issue will suffice to show 
 that "issue" means "children;" see Hawkins on Wills, 88, and 
 2 Jarm. on Wills, 103. 
 
 Examples. — Trust in remainder for twelve named persons, 
 described as the children of A., or such of them as should be 
 alive at a certain time, " and the issue of such of them as might 
 be then dead leaving issue, to be equally divided between them, 
 share and share alike, but so as the issue of any deceased child 
 should take between them no more than the parent would have 
 taken if then living." Held, that "issue" meant children: An- 
 derson V. St. Vincent, 4 W. E. 304; S. C, 2 Jur. N. S. 607. 
 322
 
 CHILDREN, *o27 
 
 By deed trusts of a fund were declared for the children of a 
 marriage living at the death of the husband and wife, with a 
 provision that if any should die in the lifetime of the husband 
 and wife leaving issue, such issue should take such share as their 
 parent would have been entitled to, in case he or she 
 had survived the husband * and wife. Held, that a [ * 327 J 
 grandchild of a child of the marriage was excluded: 
 Harrington v. Laicrence, cited 11 Sim. 138. See, to the same ef- 
 fect, Tatham v. Vernon, 29 Beav. G04. See also Barraclough v. 
 ShilUto, 28 S. J. 636; W. N. 1884, 158; 32 W. R. 875; 53 L. J. 
 Ch. 841. 
 
 See the cases on wills collected, 2 Jarman (4th edit.), 103. 
 
 ^^ Issue'' restricted to children in one clause only. — If "issue" 
 is evidently used in one clause of a settlement as meaning " chil- 
 dren," it does not necessarily follow that it is used in the same 
 meaning in every clause : Re Warren's Trusts, 26 Ch. D. 208 ; Re 
 Biron, 1 L. R. Ir. 258. 
 
 « Children." 
 
 " Children " meaning of. — The primary meaning of the word 
 "children" is descendants of the first degree: but it is sometimes 
 used in the secondary meaning of " issue," as in the phrase "the 
 Children of Israel;" or in the meaning of some class of issue, as 
 grandchildren or great grandchildren. See Wythe v. Thurlston, 
 Amb. 555; better reported, sub noni. Wyth v. Blackman, 1 Ves. 
 sen. 196. See also Berry v. Berry, 3 Gif. 134; and 2 Jarman on 
 Wills, 147. But consider the remarks of Jessel, M. R., Morgan 
 V. Thomas, 9 Q. B. D. at 646. 
 
 " Children of the wife," in a marriage settlement of the hus- 
 band's property, means children of the wife by that husband: 
 Dafforne v. Goodman, 2 Vern. 362. " Younger children " in a 
 settlement made not in contemplation of marriage by a widower, 
 who afterwards marries, includes his children by the second as 
 well as the first wife : Brafliwaite v. Brath^vaite, 1 Vern. 334. 
 See, post, Chap. XXIV. pp. 338, 339, 
 
 Rule 129. — " Children" includes child en ventre. — A gift to, 
 or trust for, children born or living at a given time, includes a 
 child en ventre at that time and born afterwards :** Bealev. Beale^ 
 1 P. W. 244. 
 
 ^ An infant is in esse from the time of conception for tlie purpose of taking 
 any estate which is for his benefit; wlietlier hy descent, devise, or under the 
 statute of distributions; provided tlie infant is born alive and after sucli a 
 period of foetal existence that its continuance in life may be reasonably ex- 
 pect<id. The right of an unborn infant to take property by descent or other- 
 
 323
 
 *329 LEGITIMATE CHILDREN. 
 
 [ * 328 ] * The cases on wills may be found in Hawkins on Wills, 
 p. 79. Consider Re Farncombe's Trusts, 9 Ch. D. 652, 
 where, on the construction of a will, a child en ventre, but not 
 born, at the date of an appointment made under a power in the 
 will, did not take. 
 
 Palmer v. Cracroft, 2 Vern. 578, where a posthumous son was 
 exclu'ded by the next heir, seems to have been a ease, as to one 
 branch of it, not on the construction or the deed, but determining 
 that the contingent remainder to the child could not take effect 
 owing to its becoming unsupported on the father's death; and as 
 to the other branch, it was decided as a case of hardship. In 
 Millar v. Turner, 1 Ves. sen. 85, where by marriage articles pro- 
 vision was made for " such child or children of the marriage as 
 should be living at the death of the father or mother," a posthu- 
 mous child was allowed to take its share. 
 
 10 c£' 11 W. 3 c. 16. — The question was formerly considered 
 doubtful, and an Act was passed, 10 & 11 W. 3, c. 16, by which 
 it is enacted that where an estate is settled in remainder on chil- 
 dren, with remainder over, a posthumous cliild may take as if it 
 had been born in its father's lifetime. 
 
 Rule ISO.—" To he born, cfec." (6).— Gifts to, or trusts for, 
 children " to he born," or " to be begotten," include those already 
 born or begotten; and e contra. 
 
 " The words ' begotten and to be begotten ' are the same, as 
 well upon the construction of wills as settlements, and take in all 
 the issue after begotten:" Cook v. Cook, 2 Vern. 544. See Almack 
 V. Horn, 1 H. & M. 630; Doe d. James v. Hallett, 1 M. & S. 121, 
 will cases. 
 
 Husband and wife, having issue a daughter, settled £600 in 
 trust for the wife for life, remainder in trust for " such daughter 
 or daughters as shall be begotten by the husband on the 
 [ * 329 ] wife." The wife died without having * had any other 
 daughter. Held, that the daughter already born should 
 take: Heivet v. Ireland, 1 P. Wms. 426; S. C. 2 Eq. Ca. Ab. 139, 
 pi. 9; Pre. Ch. 490. This appears to be the case reported in 10 
 Mod. 398, sub nom.. Slingsby v. . 
 
 There is no distinction between "born" and " to be born: " 
 see the cases on wills, Hawkins, 70; 2 Jarman, 183. 
 
 If the words are " born or to be born," they will, if possible, be 
 
 {h) As to "heirs to be begotten " taking by descent, see anfc, p. 236; 
 Frcderkk v. Frederick, Cro. El. 334, must be considered as overruled. 
 
 wise is an inchoate right, which will not be completed by a premature birth. 
 Harper v. Archer, Smeds & Marsh. 99; Marselles v. Halkimer, 2 Paige Ch. 
 35. 
 
 324
 
 ILLEGITIMATE CHILDREN. * 330 
 
 construed so as all to have their full efifect: Gabb v. Prendergast, 
 1 K. *5c J. 439. 
 
 Illegitimate Children. 
 
 The primary meaning of the word " children *' is legitimate 
 children, though it is sometimes used in the secondary meaning 
 of illegitimate children: it follows, (Rule 10) that: 
 
 Rule 131. — ^' Children'''' primCl facie means legitimate chil- 
 dren (c). — " Children " must be taken to mean legitimate chil- 
 dren, unless that meaning is excluded by the circumstances or 
 the context:^^ Williamson v. Adams, 1 Ves. & B. at p. 462; Hill 
 V. Crook, L. K 6 H. L. 265; Megson v. Hindle, 15 Ch. D. 198; 
 Dorin v. Dorin, L. R. 7 H. L. 568. 
 
 Observation. — By " legitimate children " in the rule are 
 meant: — 
 
 Fii'st. Children born in wedlock. 
 
 Secondly. Childi-eh born out of wedlock of persons who after- 
 wards marry and acknowledge the children, and who, at the time 
 of the birth of the children and of the marriage, are domiciled in 
 a place where children born before marriage are rendered 
 legitimate by the subsequent marriage of the pai'ents 
 * and acknowledgment of the children by them: Re [ * 330 ] 
 Andros, 24 Ch. D. 637; Re Goodman's Trusts, 17 Ch. D. 
 266 (where all the authorities are cited), over-ruling Boyes v. 
 Bedale, 1 H. & M. 798. 
 
 The cases collected in 2 Jarman on Wills, 217 et seq. (all of 
 which, except Blodirell v. Edwards, Cro. El. 509, S. C. Noy, 35; 
 Moo. 430, cited Co. Lit. 36, and Gabb v. Prendergast, 1 K. & J. 
 439. are cases on the construction of wills) lead to the following 
 conclusions: — . 
 
 (c) Most of the cases on this rule are cases on wills. 
 
 *' As a genera] rule bastards are not witliin tlie meaning of the words 
 "child " or "children" when used in a will. Healer v. VanAnken,14 N. J. 
 Eij. l.")0: Vanvoorhis v. Krintwall. 2:5 Hun (N. Y.) 2()(); Cardncr r. Heyer, 2 
 Paige (N. Y.), 11; .Shearman r. Angell, 1 Bail. Eq. (R. C.) '^^A. This rule is 
 subject to exception only where it is aV)solntely necessary to construe the 
 words "child " or " children " to include illegitimate children to clVectuate 
 the intention of the testator, or where there is an obvious intention to be 
 gathered from the will itself that the terms .should include illegitiniate.s. 
 Palmer /•. Iforne, 84 N. Y. rAG. 
 
 In (Jonm^cticut the common law on this sul)ject has been completely over- 
 thrown, and bastards ar(; Iwld to be children. Heath r. White, r> f'nnn. 228; 
 Hughes V. Kuowlton, ^57 Conn. 429; Dickiiisou'8 Appeal, 42 Conn. 491. 
 
 325
 
 * 331 ILLEGITIMATE CHILDREN. 
 
 First. Illegitimate children are admitted to take under a gif^ 
 to " children " where they have acquired that name by reputa- 
 tion (as in Hill v. Crook, L. R. 6 H. L. 265), and the context 
 shows that they were intended; or where some qualification is 
 added to the word " children " which excludes the legitimate 
 children, as where the gift was to the children " now living " of 
 a testator, who died a bachelor; Bhindell v. Dunn, 1 Mad. 433; 
 or "as well those already born as hereafter to bejoorn " of a per- 
 son who had only illegitimate children at the date of the deed 
 and had no children legitimate or illegitimate afterwards; Gahh 
 V. Prenclergast, 1 K. & J. 439; and where the gift was for pay- 
 ment of income to A. for life or till marriage, for the maintenance 
 of herself and her children B. & C, and after her death or mar- 
 riage for her children, and it was held that B. and C, who were 
 illegitimate, took as "children;" Re Connor, 2 J. & Lat. 456: 
 and^'where a spinster made a bequest to her " children; " Clifton 
 V. Goodbun, L. R. 6 Eq. 278. 
 
 Second. Illegitimate children may take concurrently with legiti- 
 mate children if the terms of the gift cannot be satisfied without 
 their doing so: Evans v. Davies, 1 Hare, 498; Hartley \. Tribber, 
 16 Beav. 510; Meredith v. Farr, 2 Y. & C. C. C. 525; Hibbert v. 
 Hibbert, L. R. 15 Eq. 372; Gabb v. Prendergast, 1 K. & J. 439; 
 Barnettx. Thgivell, 31 Beav. 232; Re Hwnjjhries, 24 Ch. D. 691. 
 Third. Illegitimate children can take by the name that 
 
 they have -acquired by reputation at the time when the 
 [ * 331 ] * deed is executed: Wilkinson v. Adam, 1 V. & B. 422; 
 
 S. C. in Dom. Proc. 12 Pri. 470. 
 
 Observation. — Children of 'person domiciled in heathen coun- 
 try.— It appears that, where the word "children" is applied to 
 the offspring of a person who is not domiciled in a Christian 
 country, it may readily be extended to illegitimate children: 
 Barlow v. Orde, L. R. 3 P. C. 165. 
 
 It is a rule of law that: 
 
 Rule 132. — Gift to unborn illegitimate child. — No gift to an 
 illegitimate child unborn at the date of the deed can take effect: 
 Co. Lit. 36; Pratt \. Matheiv, 22 Beav. 328; Medworth v. Pope, 27 
 Beav. 71; Occleston v. Fullalove, L. R. 9 Ch. 147. 
 
 Exception. — A gift to an illegitimate child en ventre, not de- 
 scribing it as being by a particular father, is good ; Gordon v. 
 Gordon, 1 Mer. 141; but there is some doubt if the child can 
 take if it be described as being by a particular father: Earle v. 
 Wilson, 17 Ves. 528; Evans v. Massey,-8 Pri. 22. 
 326
 
 MAKKIAGE — DIVORCE. * 332 
 
 Marriage. 
 Rule 133. — Mair-iage. — "Marriage" means a valid andeflfect- 
 ual marriage, and " solemnized " means validly and effectually 
 solemnized. 
 
 Examples. — An agreement was entered into " in consideration 
 of the intended marriage between A. and B.," for the settlement 
 of the lady's real estate. The marriage ceremony was performed. 
 A conveyance was made in pursuance of the agreement, and then 
 it was discovered, before any issue were born, that the marriage 
 was invalid. A. and B. executed deeds purporting to revoke the 
 prior agreement and conveyance. They then executed 
 a new settlement, * and afterwards were validly mar- [ * 332 ] 
 ried. Held, that, although the legal estate passed by 
 the first settlement {Boiighton v. Sandilands, 3 Taunt. 342), a court 
 of equity would not hold the parties bound by it, since it was 
 founded on the misapprehension of the parties, who believed that 
 they were validly married: Robinson v. Dickenson, 8 Rus. 399. 
 
 A post-nuptial settlement made by a man and woman who had 
 gone through the ceremony of marriage, in which she was de- 
 scribed as his wife, was set aside at the instance of 'the woman, 
 on the ground of total failure of consideration, the marriage hav- 
 ing been proved to be invalid: Coulson v. Alison, 2 Gifif. 279; S. 
 C, 2 De G. F. & J. 521. Where a marriage was declared void 
 ab initio, the property, of which trusts were declared by the set- 
 tlement, was restored to the several donors, Addington v. Mellor, 
 33 W. R. 232. 
 
 Where a man went through the ceremony of marriage with his 
 deceased wife's sister, and prior thereto made a settlement in con- 
 sideration of the intended marriage, and declared a trust of the 
 settled property in favour of himself till the solemnization of the 
 marriage, it was held, that inasmuch as the marriage could not be 
 legally solemnized, the trust for him was absolute: Chapman v, 
 Bradley, 33 Beav. 01; S. C, 4 De G. J. & S. 72; Pairson v. 
 Broivn, 13 Ch. D. 202. 
 
 Divorce. — It should perhaps be observed that where a settle- 
 ment purports to be made in consideration of marriage, this means 
 the then intended marriage, so that, in case of divorce at a time 
 when there is no issue, the ultimate trusts arise, nothwithstand- 
 ing the possil^ility of the parties marrying again and having 
 issue: Bond v. Ta]jlor, 2 J. & H. 473. 
 
 Marriage not solonnized. — Where the marriage was not solemn- 
 ized, but the parties cohabited and issue was born, it was held 
 that the contract for the marriage mentioned in the settlement 
 was entirely put an end to, and that the ])ro|)erty of the intended 
 wife which had been vested in the trustees of the settlement must 
 be re-transferred to her: Essery v. Cowlard, 20 Ch. D. 191; S. 
 C, 32 W. K. 518. 
 
 327
 
 * 334 UNDER COVERTURE — DEATH UNMARRIED. 
 
 [*333] * Under Coverture {a). 
 
 "Where a power was vested by a marriage settlement ia the in- 
 tended wife, exercisable " at any time or times hereafter during 
 the coverture." Held, that it could not be exercised after- the 
 husband's death: Morris v. Howes, 4 Hare, 599; Horseman v. 
 Ahhey, 1 Jac. & Wal. 381. 
 
 Death ^' unmarried,^' or ^^ ivithout having heenmarriedy 
 
 Rule 134. — "Unmarried" is a word of flexible meaning, to be 
 construed with reference to the plain intention of the instrument 
 in which it is used. 
 
 " What is the meaning of the word ' unmarried ' ? It may, 
 without any violence to language, mean either ' without ever hav- 
 ing been married,' or ' not having a husband living at her death;' " 
 per Lord Cranworth, Clarke v. Colls, 9 H. L. C. 612. " The word 
 'unmarried' . . . . is no doubt capable of two different con- 
 structions; it may mean either 'never having been married,' or 
 'not being married,' that is, 'being a widow' at the time of her 
 death, which would exclude the marital right of the husband. 
 The context (6) must determine in every case in what sense the 
 word was used;" i^er Lord Wensleydale, ib. 615; see Dalrymple 
 V. Hall, 16 Ch. D. 715, a case on the construction of a will. 
 
 " Where a legacy is given by will to a daughter who, at the 
 d^te of the will, has never been married, and the gift is made to 
 be conditional upon the legatee being ' unmarried ' at a given time, 
 there it may well be that the testator is looking to the then con- 
 dition and status of the legatee as a person who has never been 
 married, and foreseeing the circumstances in which she 
 [*334] will stand * if that status and condition continue, and 
 intends the bequest to be conditional upon her continu- 
 ing in that status or condition. In such a case, the word ' un- 
 married' would rightly be construed to mean 'a spinster' and 
 not ' a widow.' On the other hand, in a settlement, where prop- 
 erty has been settled, in the event of the wife dying in the life- 
 time of her husband, upon trust for the persons who at her death 
 would have been entitled to her personal estate in case she had 
 died intestate and ' unmarried,' or ' without being married,' there 
 being no provision for the children who eventually survive her, it 
 is clear that the motive is. not to prevent her marrying again in 
 the event of her surviving her husband, but simply to exclude her 
 husband, in the event of his proving the survivor, from claiming 
 
 (rt) As to the nature of the interest taken by a wife under a trust for her 
 during coverture, see ante, p. 294. 
 
 {h) Or the circumstances; e. gr., that the instrument is a marriage settle- 
 ment. 
 
 328
 
 DEATH UNMARKIED. * 335 
 
 any part of her personal estate. In such a case, the expressions 
 ' unmarried ' or ' without being married ' would l)e held to mean 
 ' without having a husband at the time of her death,' not ' without 
 ever having had a husband' — 'a widow' and not 'a spinster;' 
 and children sui'viving their mother would be entitled;" j)c>* 
 Wood, V. C, Re Saunders. 3 K. & J. 156. This distinction is 
 well illustrated in the case of Pratt v, Matheiv, 8 De G. M. & G. 
 522, where the word " iTumarried " was used twice in the settle- 
 ment: first, for the purpose only of stating the converse case to 
 that of a daughter marrying during minority; secondly, for the 
 purpose only of designating the converse^ case to that of a woman 
 dying having a husband, and there it was understood as referring 
 to the case of her dying not having a husband. 
 
 In a will '" unmarried " will, in the absence of a context, be con- 
 strued "not having been married;" per Pearson, J., Re Sergeant, 
 26 Ch. D. 575. 
 
 Rule 135. — Death " intestate and unmarried^ — A gift in a 
 marriage settlement to the next of kin, or statiitory next of kin of 
 the wife, "as if she had died intestate and unmarried," 
 will be construed to mean as ifshe had died intestate aud*a [ *835] 
 widow; Re Saunder's Trust, 3 K. & J., 152; Pratt y. 
 Matheiv, 8 De G. M. & G. 523; see as to meaning of "death un- 
 married and without issue," Heyivood v. Heyicood, 29 Beav. 9. 
 
 "If the former construction " (sc, that " unmarried " means 
 "without ever having been married") "be adop^^ed, then if the 
 wife should survive her husband, and afterwards marry and have 
 children, her collateral relatives would take the fund to the ex- 
 clusion of her own issue. If the latter construction " (.sc, " not 
 having a husband living at her death ") "be adopted, no such re- 
 sults will follow. This seems to me to be conclusive. It is im- 
 possible to suppose that the framers of the settlement intended to 
 use the word in a sense which would exclude the possible issue 
 of the wife in favour of her collateral relatives; " 2^er Lord Cran- 
 worth, Clarke v. Colls. 9 H. L. C. G12. 
 
 ''Without being married." — The words " without being mar- 
 ried" bear the same construction: Re Norman, 3 De G. M. & G. 
 965. 
 
 Rule 136. — Without having been married. — The death of a 
 woman "without having been married" means "without ever 
 having had a husband:" Emmins v. Bradford, 13 Ch. D. 493. 
 
 It should perhaps be stated that in Knnnins v. Bradford, -b-s- 
 sel, M. K, declined to follow the decisions of Fry, J., in Rr Hall, 
 
 329
 
 *336 WITHOUT HAVING BEEN MARRIED. 
 
 11 Ch. D. 270, and Upton v. Broum, 12 Ch. D. 872, on the ground 
 that Fry, J., appeared to believe that he was bound by a rule laid 
 down by the Lords Justices in Wilson v. Atkinson, 4 De G. J. & 
 S. 455, while no such rule was in fact laid down. 
 
 Rule excluded by context. — The context may show that the 
 rule does not apply. In Wilson v. Atkinson, 4 De G. J. & S. 
 455, on the marriage of a widow who had an illegitimate daugh- 
 ter, funds belonging to her were setiled on trust for her for life 
 for her separate use without anticipation, remainder as she should 
 
 appoint, and in default, for her if she survived her hus- 
 [ *336 ] band, but if she died in his lifetime, then in trust * for 
 
 the persons who would have been entitled under the 
 Statutes of Distribution if she had died intestate and without 
 having been married; and it was declared that, for the purposes 
 of that trust, the illegitimate daughter should be deemed her 
 lawful child. Held, on the wife's death in the husband's life- 
 time, without lawful issue and without having made any appoint- 
 ment, that the illegitimate daughter was entitled. See Hardman 
 V. Moffett, 13 L. E. Ir. 499, where the cases were reviewed and 
 considered. 
 
 330
 
 "•eldest" meaning child succeeding to estate. * 338 
 
 * CHAPTER XXIV. [ * 337 J 
 
 ELDEST SON. YOUNGER CHILDREN. 
 
 Eldest child : Younger children : Younger child becoming eldest : 
 In loco parentis: Where no estate limited to Eldest Child: 
 Children '■'■besides'''' or ''other than'''' an eldest. 
 
 Meaning of " elder " and " younger^ — Tbe words " elder " or 
 *' younger " applied to individuals merely as living beings, with- 
 out reference to property, office, title, or other like distinctions, 
 must, of course, be taken to refer to tbe order of birth. So, in 
 the limitation of an estate, "eldest son" (a); (Bathurst v. Er- 
 rington, 2 App. Cas. 698; Meredith v. Treffry, 12 Ch. D. 170, both 
 cases on wills) : or " eldest child," or " senior puer," [Lane v. Coio- 
 per, Moo. 103, S. C, sub nom. Lane v. Coux)S, Ow. 04; S. C, sub 
 nom. Humfreston'' s Case, Dy. 337a; where a daughter was older 
 than a son) means a first born son or child. But the persons to 
 whom they are applied may be placed in situations and under 
 conditions which are irrespective of their ages, and render the 
 words capable of other distinctions; and then the question arises 
 whether, from the context in which the words are used, they are 
 to be refeiTed to the differences in age, or to those in the posi- 
 tions of the parties to whom they are applied. There are many 
 familiar instances in which the primary meanings of the words 
 are excluded when they are applied to persons with relation to 
 their office or situation ; as where one member of the bar is said 
 to be " senior " or " junior " to another, a junior i^eer, a puisne 
 judge, and the like. 
 
 * The cases show that, on the one hand, where pro- [ * 338 ] 
 visions are made by any person, whether in loco paren- 
 tis or not, for "younger children," by an instrument that does not 
 make provision, or does not refer to or is not shown by extrinsic 
 evidence to be connected with provisions already made, for the 
 " eldest " child, the words " younger " and " eldest " are used in 
 their primary meaning, /. c, in reference to ord(>r of birth; and 
 that, on the other hand, where the jirovisions are made by a per- 
 
 (a) See ante, p. 126, n. 
 
 331
 
 *339 ''eldest'' meaning child succeeding to estate. 
 
 son in loco parentis for " younger children," by an instrument 
 which makes provision, or refers to or is shown by extrinsic evi- 
 dence to be connected with provisions made, for the "eldest child," 
 the word "eldest" is used to designate the child who becomes 
 entitled under the provisions made for the eldest, even though he 
 may not be the eldest in order of birth. 
 
 Rule 131.^' — ^' Eldest'' meaning child succeeding to estate. — In 
 provisions made by a parent, or person in loco parentis, for 
 younger children, by a deed which limits an estate to, or {Ellison 
 v. Thomas, 1 De G. J. & S. 1 8,) refers to or is shown by exlrin- 
 sic evidence to be connected with (6) an instrument limiting an 
 estate to, the eldest child, the phrase " eldest child " means " child 
 succeeding to the estate;" and " younger children " means " chil- 
 dren not succeeding to the estate." 
 
 Time at which eldest is ascertained. — In this case the time at 
 which the characters of eldest child and younger child are to be 
 ascertained, is the time at which the fund is to be distributed 
 among the younger children, which may or may not be (though 
 it generally is) the time at which the eldest succeeds to the 
 estate. 
 
 Observation. — '-' Younger children'' includes children of subse 
 quent marriage. — The expression " younger children " 
 [*339] of A. includes his children by a subsequent * marriage; 
 Brathwaite v. Brathwaite, 1 Vern. 334. See also Bur- 
 rell V. Crutchleij, 15 Ves. at p. 555; Butchery. Butcher, 1 V. & B. 
 at 91; and Green v. Greeri, 2 Jo. & Lat. at 541; S. C, 8 Ir. Eq. 
 R. 473. 
 
 "Every child except the heir is considered in equity as a 
 younger; and eldership not carrying the estate along with it is 
 considered not such an eldership as "shall exclude by virtue of 
 such clauses; and it would be hard that the right of eldership 
 should be taken away, and yet not have the benefit of it as a 
 younger child;" per Lord Hardwicke, C, Duke v. Doidge, 2 Ves. 
 Sen. 203, note (cited by Wood, V.-C, in M(;icouhrey y . Jones, 2 K 
 & J. at 691). 
 
 '"It is now well established law that where the bulk of an 
 estate is settled in strict settlement, and by the same settlement 
 
 (&) See Observation, post, p. 349. 
 
 ^^ The subjects considered in this chapter require no comment, as they are 
 of little importance to the American lawyer. The points discussed arise 
 chiefly out of the effects of the rule of primogeniture, which is not recognized 
 in the United States. 
 
 332
 
 ELDER CHILD NOT SUCCEEDING TO ESTATE. * 340 
 
 portions are provided for younger children, no child taking the 
 bulk of the estate by virtue of the limitations in strict settlement, 
 shall take any benefit from the portions. And that is so, whether 
 the settlement does or does not contain an express j)rovision to 
 exclude him from a share in such portions;" pe?' ^Vood, Y.-C, 
 Macoubrey v. Jones. 2 K. & J. at jx (390; cited with approval by 
 Lord Cairns in Colling wood v. Stanhope, L. R. 4 H. L. at p. 01, 
 
 In Ellison v. Thomas, 2 Dr. & Sm. Ill ; S. C, 1 De G. J. & S. 18; 
 and Re Bay ley's Settlement, L. R. 9 Eq. 491 ; S. C, L. R. Ch. 590, 
 the deed containing the provisions for younger children, referred 
 to that containing the provisions for the eldest son; and though 
 this was not the case in Teynham v. Webb, 2 Ves. Sen. 198, yet it 
 was construed with reference to them; see pp. 202, 210. 
 
 Elder child not succeeding to estate. Period of distribution. — 
 " The principle of the cases relating to settlements is this, that 
 the Court, with regard to all questions arising on provisions for 
 children under a marriage settlement, holds that the principal 
 intent to be imputed to the parties (however differently 
 that intent may be expressed, so long * as it is not con- [ * 340 ] 
 trary to what is actually found in the settlement), is a 
 desire to provide equality for the childi-en, that one child should 
 not take a double portion, and that no child should be excluded. 
 These seem to me to be the two beacons, or landmarks, by which 
 the Court has directed itself in steering, sometimes, undoubtedly, 
 a very difficult and doubtful course. That principle has led to 
 this conclusion, that although it should be, in terms, said in the 
 settlement that the elder child is not to have a portion, yet if 
 under such a settlement the one who is really the elder child, the 
 first born, does not take the family estate, it has been held that, 
 the family estate going to a younger son (which I also ought, in- 
 deed, to have mentioned as a leading part of that same system of 
 exposition), the Court of Chancery does not regard the elder born 
 as the elder son, but regards the younger brother, who is in pos- 
 session of the family estate, as the elder, and the actually elder 
 brother as the younger, in order to introduce him as a younger 
 brother into the benefits of the portions provided for the younger 
 children. That being so, it has been farther held that the Court 
 will not, notwithstanding very strong words (as there have been 
 in some cases) in the settlement to the contrary, hold the portions 
 to be indefeasibly vested in the children in such a manner as to 
 allow, on the one hand, a double portion to bo given to one child, 
 or, on the other hand, to allow any child to be excluded. And 
 therefore it has come to this conclusion, that the period for ascer- 
 taining what is the true construction of the settlement with refer- 
 ence to the distril)ution. or the i)ortioi)s ])rovided for the chiMicn, 
 is that pei-i(;d when the distril)ntion itself is to take jilacc TIkmi, 
 looking round, and seeing all the events which have happened in 
 the family, though you may find that one child has held the j)lace
 
 * 342 YOUNGER CHILD SUCCEEDING TO ESTATE. 
 
 of a younger child during the period that the settlement has been 
 in existence, that is to say, subsequent to the marriage of the 
 parents, and holding in such case that the younger child has be- 
 come entitled to a portion, nay, even though that portion 
 [ * 341 ] may have been assigned to him, yet * if, at the period of 
 distribution, that child has become the elder child, then 
 he is no longer entitled to a portion, and the portion which has 
 been assigned to him is no longer his; he takes^the family estate, 
 and the rest of the children are let in as younger children to the 
 benefit of the fund out of which the portions are to be provided, 
 including that portion of the fund which had been assigned to 
 him who has now become the elder child: " per Lord Hatherley, 
 C, Collingivood v. Stanhope, L. K. 4 H. L. 52. 
 
 Time at ivhich character fixed. — " This case depends upon the 
 enquiry at what time the words of exclusion of the eldest son for 
 the time being come into operation; that is to say, at what time 
 the eldest son for the time being is to be looked for and ascer- 
 tained The persons entitled must be ascertained at 
 
 the time when the money is directed to be raised and divided, 
 and the words of exception appear to me to attach at that time 
 upon the son who then answers the description, and to exclude 
 him from the class of persons interested; " i^*^}" Lord Westbury, 
 C, Ellison V. Tliomas, 1 De G. J. & S. 25. See also Scarisbrick 
 v. Skelmersdale, 4 Y. & C. Ex. at p. 113, per Maule, J.; Tennison 
 V. Moore, 13 Ir. Eq. K. 424. 
 
 "The period at which the rights of the parties are to be ascer- 
 tained has been well and conclusively settled to be that at which 
 the fund becomes distributable under the trusts;" per Bacon, 
 V.-C, Carter v. Earl of Dude, 41 L. J. N. S. Ch. 153, at p. 157; 
 S. C, 20 W. R. 228. 
 
 Where portions exceed whole value of the estate. — It should 
 perhaps be observed that the fact that, owing to a change in the 
 value of the estate charged with the portions, the amount of the 
 portions exceeds the value of the residue of the estate will not en- 
 title a younger son becoming the eldest to claim a portion; Reid 
 V. Hoare, 26 Ch. D. 363 (where the authorities on the general 
 Rule are discussed by Kay, J.). 
 
 See on the rule 3 Dav. Prec. p. 411, et seq., citing Mathews on 
 Portions, pp. 13, et seq.; 2 Spence Eq. 410, et seq.; Peachey on 
 Settlements, 446, et seq. 
 
 [*342] * Examples.— (1) Younger child succeeding to 
 the estate held not entitled to share in provis- 
 ions for younger children. 
 
 A father on his marriage settled an estate on himself for life, 
 with remainder to trustees after his death on trust to raise por- 
 334
 
 DAUGHTER SUCCEEDING TO ESTATE. * 343 
 
 tions for his younger children, in siich proportions as he should 
 appoint, and in default equally, to be paid at their respective 
 ages of twenty-one years with remainder to his first and other 
 sons successively in tail. The father appointed a sum to his 
 second son, who was of full age at the time, and afterwards on 
 the death of the eldest son without issue, and without having 
 barred his estate tail, appointed the whole of the portions fund 
 among the other younger children: Held, that the second son 
 took nothing under the first appointment. " At the time of the 
 appointment he was a person capable to take, and was a younger 
 child within the power of appointing: but this was a defeasible 
 appointment, not from any power of revoking, or upon tlie words 
 of the appointment, but from the capacity of the person. He 
 was a person capable to take at the time of the appointment 
 made, but that was sub modo, and upon a tacit or implied condi- 
 tion that he should not afterwards happen to becoQie the eldest 
 son and heir; " per Wright, L. K., Chadicick v. Doleman, 2 Vern. 
 
 528. 
 
 The branch of the rule by which a younger child becoming the 
 eldest is excluded from the provision for younger children, was 
 also applied in Broadmead v. Wood, 1 Br. C. C. 77 (where an ap- 
 pointment had been made nominatim to a younger child, who 
 afterwards became the eldest, and where the power expressly ex- 
 cluded "the eldest son, or the son possessing the estate"): Davies 
 V. Huguenin, 1 H. & M. 730; Teynham v. Webb, 2 Ves. Sen. 198 
 (where it does not appear from the report that any estate was 
 settled on the eldest son, but the provisions for the younger 
 children were under the circumstances construed with reference 
 to the provisions for the eldest son ) : Gray v. Earl Lime- 
 rick, 2 De G. & S. 370; Savage * v. Carroll, 1 Ball & B. [ *343] 
 265; Ellison v. Thomas, 2 Dr. & Sm. Ill; S. C, 1 De 
 G. J. & S. 18; and Re Bayleifs Settlement, L. R. 9 Eq. 491; S. 
 C, L. R. 6 Ch. 590. In the two last mentioned cases, the pro- 
 visions for the younger children were contained in a deed con- 
 temporaneous with the settlement on the eldest child, and in Re 
 Bayley's Settlement the real estate of the husband having been 
 settled (subject to a life interest in the husl)and), on the first and 
 other sons of the marriage successively in tail male, the provis- 
 ions for the younger children were made by a separate deed, in 
 which the settlement of the husband's estate was recited, and the 
 real estate of the wife was settled (subject to a life interest in 
 her), " to the use of all and every the son and sons (other than 
 an eldest or only son), and daughter and daughters of the mar- 
 riage, in equal shares as tenants in common " in tail; and it was 
 provided that if any such younger son or daughter should die, 
 and there should be failure of issue of his or her body, or in 
 case any such younger son or sons should become an eldest or 
 onlv son before he or they should attain the age of twenty-one 
 
 335
 
 *344 ELDEST CHILD NOT SUCCEEDING TO ESTATE. 
 
 years, thea the share of such son or daughter, as well origiual as 
 accruing, should go to the survivor or survivors, or others, of the 
 younger sons or daughters (if more than one) in equal shares, as 
 tenants in common in tail, and if there should be only one such 
 sou or daughter, to him or her in tail; and it was held, that a 
 younger son who, after attaining twenty- one, became in the life- 
 time of his mother an eldest son, was not entitled to a share of 
 the wife's estate, since at the time of distributign he had ceased 
 to be a member of the class " younger sons." 
 
 Where eldest daughter takes estate. — R. on his marriage settled 
 real estate on himself for life, remainder to trustees for a term, re- 
 mainder to the sons of the marriage successively in tail male, re- 
 mainder to the sons of his second marriage successively in tail 
 male, remainder to the daughters of the marriage successively in 
 tail male, remainder to R. in fee. The trusts of the term were to 
 
 raise £3,000 for the portions of the daughter or daugh- 
 [ *344] ters and younger son or sons of the * marriage, if more 
 
 than one daughter or younger son, the £3,000 to be pay- 
 able among them as R. should appoint, or in default equally; but 
 if only one daughter or younger son who should not at R.'s death 
 be his eldest sou, then to raise a sum not exceeding £2,000 for 
 such only daughter or younger son payable as R. should appoint. 
 R. had issue two daughters only. Held, that in the trusts of the 
 portions term, "daughter" meant daughter not succeeding to the 
 estate: Stirum v. Rwliards, 12 Ir. C. R. 323. See to the same effect, 
 Nor thMniber land v. Egremont, 1 Ed. 435, and Remnant v. Hood, 
 27 Beav. 74; S. C, 2 De G. F. &. J. 396, where no portion was 
 claimed by the daughter taking the estate; but see Simpson v. 
 Frew, 4 Ir. Ch. R. 428; S. C, on app. 5 Ir. Ch. R. 517, infra. 
 
 Examples (2). — Eldest child not succeeding to the estate, 
 held entitled to a share under provisions for younger 
 children. 
 
 An estate was settled on a father for life, remainder to children 
 as he should appoint, remainder to a triistee for a term for rais- 
 ing portions for younger children, remainder to the father's first 
 and other sons successively in tail; the eldest son attained twenty- 
 one and died without issue in the father's lifetime, and then the 
 father appointed the estate to the younger son: Held, that the 
 personal representatives of the eldest were entitled to a share 
 under the provisions for younger children: Davies v. Huguenin, 
 1 H. & M. 730. 
 
 Daughter. — Where the limitations of the estate extended to 
 daughters, and a daughter (the only child, except a son who died 
 in infancy,) was married and died in the lifetime of the tenant for 
 life, she was held entitled to a portion as being "a child other 
 than an eldest or only son," though she was an only child at her 
 336
 
 ELDEST CHILD NOT SUCCEEDING TO ESTATE. * 340 
 
 death, on the ground that her remainder was liable to be divested 
 by the birth of a son: Smipso7i v. Freic, 4 Ir. Cb. R. 428; S. C, 
 on appeal, 5 Ii-. Ch. R. 517, where the decision was ap- 
 proved of, * though the case was decided on another [ * 345 ] 
 point: but see Stinun v. Eichanls, 12 Ir. Ch. R. 323, ante, 
 p. 344. 
 
 A daughter, who though eldest child by birth, does not suc- 
 ceed to the estate, is a younger child within the meaning of the 
 rule: Pierson v. Garnet, 2 Br. C C 38. 
 
 Land was settled on A. for life, remainder to his first and other 
 sons successively in tail male, remainder to B. in tail male, re- 
 mainder to A. in fee, with power to A. to charge portions for 
 younger children, sous and daughters, who should be living at 
 his death. A. exercised the power in favour of his daughters 
 and died, having had two daughters but no son: Held, that both 
 daughters were entitled to portions. Harcourt, C, said, " Every 
 one but the heir is a younger child in equity, and the provision 
 which such daughter will have is but as a younger child's in regard 
 the son goes away with the land as heir; so here, the estate by 
 the settlement goes all to the remainderman, who is hceres factus, 
 and neither of the two daughters is heir, wherefore the elder 
 daughter, having no more than the younger, is (as to this pro- 
 vision) a younger child, and consequently capable of taking it: " 
 Beale v. Beale, 1 P Wms. 244. 
 
 Eldest son tenant for life only. — In Ellison v. Thomas, 2 Dr. 
 & JSui. Ill; 1 De G. J. & S. 18, the eldest son was only tenant 
 for life, with remainder to his first and other sons in tail; but 
 Lord ^Vestbury, C. (reversing the decision of Kindersley, V.-C. ), 
 held that the rule must be applied in his favour, so that, on his 
 death without issue male, before the time of distribution, his ex- 
 ecutors were admitted to share in the provisions for younger chil- 
 dren. Some importance was attached to the words describing the 
 class of children intended to be provided for, viz., " children . . . 
 othfr than and besides an eldest or only son for the time being 
 entitled under or by virtue of a certain indenture of settlement 
 bearing even date herewith to certain estates : " Gray v. Earl 
 Limerick, 2 De G. & Sm. 370 is contra. 
 
 First Exception. — Younger child succeeding, but not 
 under settlement. — A younger child who at the * time [ * 346 ] 
 of distribution is entitled to the estate, not by virtue of 
 the original settlement by which, or by reference to which, the 
 eldest child and younger children are defined, but by virtue of the 
 subsequent dealings with it, is entitled to share in the provision 
 for younger children. 
 
 Examples. — Spencer v. Spencer, 8 Sim. 87, where the eldest 
 
 22 INTERPKKTATIOX OF DKEUS. 337
 
 * 347 YOUNGER CHILD SUCCEEDING NOT UNDER SETTLEMENT. 
 
 son and his father barred the estate tail, and resettled the pro 
 perty on the father for life, with remainder to the son in fee, and 
 the son died intestate in the father's lifetime, so that the fee de- 
 scended to the second son, who attained twenty one, and died in 
 his father's lifetime: Tennison v. Moore, 13 Jr. Eq. R. 424, where 
 the eldest son joined with his father in barring the entail and re- 
 settled the estate, so that the second son who had become the 
 eldest at his father's death, succeeded his father^as tenant for life 
 under the resettlement: Adams v. Beck, 25 Beav. 648, where the 
 eldest son barred the entail, and devised the estate to uses, under 
 which the second son had become entitled as tenant for life at the 
 time of distribution: Macoubrey v. Jones, 2 K. & J. 684, where 
 the eldest son and his father barred the entail, mortgaged the 
 property, and resettled it in such a manner that the second son, 
 who was the eldest at the time of distribution, became entitled 
 to a share only of the estate. In all these cases, second sons or 
 their representatives were neld to be entitled to a share in the 
 provisions for the younger children. The case of Peacocke v. 
 Pares, 2 Keen, 689 (where the facts were the same as in Adams 
 V, Beck, 25 Beav. 648, and it was held that the younger son who 
 succeeded to the estate, was not entitled to any provisions as a 
 younger child), must be considered to be no longer law. See 
 also Ex parte Smyth, 12 Ir. C. R. 487. Wakefield v. Richardson, 
 18 L. R. Ir. 17, is an example where the point was raised (see p. 
 32), and seems to have been conceded. 
 
 Where under a power in a marriage settlement, uses 
 [ * 347 ] * are revoked and new uses declared, whereby a younger 
 child, who has since become an elder, takes, through the 
 mere bounty of his parent, property which, but for such revoca- 
 tion, he would have taken as eldest son under the settlement, he 
 does not thereby cease to be entitled to a portion as a younger 
 child: Wandesforde v. Carrick, Ir. R. 5 Eq. 486; seep. 497, where 
 Chatterton, V.-C, said, "the plaintiff has become possessed of 
 the settled estates as tenant for life, and of course if they were 
 taken by him under the limitations of the settlement of 1812, he 
 would have ceased to be entitled to a younger child's portion, 
 but in my opinion he has not taken any estate under that settle- 
 ment in such a sense as that he should be deemed an eldest son. 
 Anne, Lady O., revoked the uses which constituted that instru- 
 ment a settlement of the estate, and thus destroyed the settlement. 
 . . . She then proceeds as a matter of bounty to devise the 
 lauds as her own property. The plaintiff no longer takes under 
 th > limitations of the settlement or as a child of the marriage, 
 what he has taken cannot be deemed a portion or provision under 
 that instrument, and it is therefore not within the principle on 
 which this Court deals with such cases. 
 
 Eldest son icho has disentailed. — It need hardly be said that the 
 doctrine under consideration will not be applied so as to give a 
 338
 
 PROVISIONS FOR CUILDREN NOMINATIM. * 348 
 
 share in the provisions for the younger children to an eldest son, 
 who at the time of distribution would have been entitled under 
 the settlement to the estate, but who has barred the entail, and so 
 ceased to take under the settlement; CoUingwood v. Stanhope, L. 
 R. 4 H. L. 43. 
 
 Second Exception. — Whei^e provisions made noniinatini. — 
 Apparently, where provisions are made for the younger children, 
 or the eldest child is excluded, nominatim, the rule does not 
 apply. 
 
 A testator bequeathed £20,000 to his son A. for life, with re- 
 mainder in " case F., the eldest son of A., shall be liv- 
 ing," to F. for life, with remainder to his children, * and [ * 348 ] 
 in default of children to the other sons of A. succes- 
 sively, on trusts analogous to the limitations of realty in strict 
 settlement. He also bequeathed a share of the residue to A. for 
 life, with remainder to " all the children of A. except F." F. 
 attained twenty-one and died in the lifetime of A. unmarried, 
 when B. became the eldest son of A., and on A.'s death became 
 entitled to a life interest in the sum of £20,000: Held, that, not- 
 withstanding B. had become the eldest son of A., he was entitled 
 to a share in the residue, and that the representatives of F. were 
 excluded; Wood v. Wood, L. R. 4 Eq. 48. 
 
 Provision was made by a father under a private Act of Parlia- 
 ment for his eldest son John, and power was given to the father 
 to appoint a sum among " Stephen the sou, Martha and Catherine 
 the daughters of Stephen Jermyn the father, and the survivors 
 or survivor of them, and such other child and children as the said 
 S. Jermyn the father should hereafter have." The eldest son died 
 .without issue; then the father appointed in favour of Stephen: 
 Held, that he was an object of the power. Lord Talbot, C. said, 
 " Stephen is indeed called a younger child in the preamble; but 
 when the power of appointment is given, it is not to appoint 
 amongst the younger children generally, but to Stephen, Martha, 
 and Catherine;" Jermyn v. Felloics, Ca. Temp. Talb. 93. Lord 
 St. Leonards, in his comments on this case (Sug. Pow. 8th ed. 
 679) says, " The case seems to establish this principle, that 
 where a younger child is included by his name in a power, he 
 will continue an object of the power, although he lose his charac- 
 ter of younger son." But he points out that Lord Talbot distin- 
 guished the case from Chadivick v. Doleman (2 Vern. 528), on the 
 ground that there the question was between a younger son who 
 had become the eldest and the other younger children, while in 
 Jermyn v. Felloivs it was between the only surviving child and 
 the administrators of a deceased child, " so that this case," he 
 savs, " cannot perhaps be relied on as an authority for the gen- 
 
 339
 
 *350 INTERESTS INDEPEASIULV VESTED. 
 
 eral principle which at first sight it seems to establish." 
 [ * 349 ] And see Savage v. Carroll, * 1 Ball & B. 265, wLere 
 
 Lord Manners, C. (at p. 278), distinguished Jermyn v. 
 Felloii's, saying, "As to the fact of the younger children being 
 enumerated by name in that case and the same circumstance 
 occurring here, I do not think any weight is to be attached to it; 
 for here the mother was dead and all the children to take were 
 ascertained." 
 
 By a marriage settlement a husband covenanted to pay £10,- 
 000 for the children of the marriage, and for want of such chil- 
 dren, for the children of the wife by a former marriage, other than 
 A. her eldest son, as the husband should appoint, and in default, 
 for all such children, except as aforesaid, who should attain 
 twenty-one, equally, and if only one, except as aforesaid, then in 
 trust for such one younger child; the eldest son attained twenty- 
 one, and died in his mother's lifetime; there were no children of 
 the second marriage : Held, that the estate of the second son, 
 who on the death of his brother succeeded to the family estates, 
 and attained twenty-one and died in his mother's lifetime before 
 the period of distribution was entitled to a share; Sandeman v. 
 Mackenzie, 1 J. & H. 613; the judgment contains some important 
 observations on the doctrine of "^>l loco parentis.^'' 
 
 Third Exception. — Interests indefeasibhj vested before time of 
 distribution. — Of boui'se, if it clearly appear from the deed that 
 the interests of the younger children are to vest indefeasibly at 
 a time other than that of distribution, the rule does not apply; 
 Windham v. Graham, 1 Russ. 331 ; see the comments on this case 
 in Re Bayley, L. R. 9 Eq. 491; 6 Ch. 590. 
 
 Stock settled upon trust for children (except an eldest son en- 
 titled to settled estates ), in equal shares, shares of sons to be vested 
 at twenty-one, of daughters at twenty-one or marriage. There 
 
 were two children, a son, who died an infant, and a 
 [ * 350] daughter who married (before her * brother died), and 
 
 became on her brother's death, entitled to the settled 
 estates : Held, that the daughter took an absolutely vested interest 
 in the stock : Carter v. Earl Diicie, 41 L. J. N. S. Ch. 153; S. C, 
 20 W. E. 228, where Bacon, V.-C, said that the daughter took on 
 her marriage a vested interest in the whole fund, and he referred 
 to the rule that an estate once vested is not to be divested but by 
 plain express words. The circumstances and terms of the deed 
 in this case were somewhat peculiar, and if it had been held — as 
 was contended for — that the daughter taking the estates was to be 
 considered as " an eldest or only son," still on the terms of the 
 settlement, an only son would have taken both the estates and the 
 settlement fund. 
 340
 
 IN LOCO PARENTIS. * 351 
 
 See the modern form of trusts of the portions term, 3 Dav. Prec. 
 989, 1046; 2 K. & E. Comp. 569. 
 
 In loco Parentis. 
 
 As to what amounts to a person placing himself in loco paren- 
 tis see Ex parte Pije, 18 Ves. 140; S. C, 2 Wh. & Tud. 388 (5th 
 ed.) at 378; Fowijs v. Mansfield, 3 My. ctCr. 359 (on app. from G 
 Sim. 528), and the cases there cited; Lyddon v. Ellison, 19 Bi'av. 
 565; Tucker v. Burrow, 2 H. & M. 515; Sandeman v. Mackenzie, 1 
 J. & H. 613; Fowkes v. Pascoe, L. R. 10 Ch. 343; Bennet v. Bennet, 
 10 Ch. D. 474, where Jessel, M. K, says (at p. 477), " Now what is 
 the meaning of a person in loco parent is f I cannot do better 
 than refer to the definition of it given by Lord Eldon in Ex jiarte 
 Pye, 18 Ves. 140, referred to and approved of by Lord Cottenham 
 in Poicisv. Mansfield, 3 My. & Cr. 359, 367. Lord Eldon says it is 
 a person, 'meaning to put himself in loco parentis: in the situa- 
 tion of the person described as the lawful father of the child.' 
 Upon that Lord Cottenham observes, ' but this definition must, I 
 conceive, be considered as applicable to those parental 
 * offices and duties to which the subject in question has [ *351 J 
 reference, namely, to the office and duty of the parent to 
 make provision for the child. The offices and duties of a parent 
 are infinitely various, some having no connection whatever with 
 making a provision for a child; and it would be most illogical, 
 from the mere exercise of any such offices or duties by one not the 
 father, to infer an intention of such person to assume also the 
 duty of providing for the child.' So that a person in loco parentis 
 means a person taking upon himself the duty of a father of a 
 child to make a provision for that child." 
 
 See also Peachy on Settlements, 509. 
 
 Stranger. — It appears to follow that whenever a stranger makes 
 a settlement of an estate on an "eldest" child, and charges por- 
 tions on it for the "younger " children, he has placed himself in 
 loco parentis within the meaning of the rule (see Lewin on Trusts, 
 7th ed. 357); and hence that in every case where there are pro- 
 visions made for an elder and the younger children, the above 
 rules must be applicable, since the provisions must be either made 
 by a parent, or, if made by a stranger, the mere fact of their being 
 made in that form is of itself conclusive evidence that the stranger 
 was in loco parentis. See the remarks of Lord Hardwicke, C, in 
 Teynhani v. Webb, 2 Ves. Sen. at 210, where a voluntary provision 
 was made by a grandmother: — "She did it as a parent providing 
 for the younger children of her daughter, and a grandmother in 
 this Court is often considered as a parent." The rules, th(^refore, 
 might be stated as rules of universal applicability and not as con- 
 fined to provisions made by parents and persons in loco parentis. 
 See Swallow v. Binns, 1 K. & J. 417. 
 
 341
 
 * 353 '"eldest" and "younger" having reference to birth. 
 
 Some doubt has been thrown on the correctness of the doctrine 
 which limits the peculiar construction of " eldest " and " younger " 
 children to cases where the provision is made by a parent or per- 
 son in loco parentis by the remarks of Lord St. Leonards, Sugd. 
 Pow., 8th ed"! 680, where he says, "This distinction does 
 [ * 852 ] not appear to be attended to at the present day." *But 
 it must be remembered that he is speaking of the con- 
 struction of powers to charge portions, which must from the neces- 
 sity of the case be contained in the instrument creating the trusts, 
 and must therefore (according to the doctrine laid down by Jessel, 
 M. E., in Bennet v. Bennet, 10 Ch. D. 474) be created by a per- 
 son in loco parentis. And Lord St. Leonards' remarks were dis- 
 approved of by Wood, V.-C in Sandeman v. Mackenzie, 1 J. & 
 H. at p. 628. 
 
 Rule 138. — Where no estate limited to eldest child. — In pro- 
 visions made for younger children by a deed which does not limit 
 an estate to, or does not refer to, or is not shown to be connected 
 with, an instrument limiting an estate to, the eldest child, the words 
 "eldest" and "younger" have reference to priority of birth. In 
 these cases the time- at which the character of eldest child and 
 younger children is in general to be determined is the time of 
 vesting. See Lewin on Trusts, Ch. xvii. s. 1, p. 360 (7th ed.). 
 
 Examples. — Trust in a settlement of stock to pay the income of 
 a fund to M. for life, and at her death "to pay or transfer the stock 
 to all her children, except her eldest or only son, in equal shares, 
 at their respective ages of twenty-one years." A younger son at- 
 tained twenty-one and then became the eldest by the death of his 
 elder brother before the time of distribution: Held, that his share 
 was not divested: Re Theed, 3 K & J. 375. See also Sandeman 
 V. Mackenzie, ante, p. 345. 
 
 A. by deed appointed a sum of money entrust for his daughter 
 B. for life, with remainder " in trust for the child, if only one, or 
 all the children, except an eldest or only son, if more than one," 
 of B., who, either before or after the determination of the pre- 
 vious trusts, should attain twenty-one or marry, and if more than 
 
 one, equally. A. died;' then B.'s eldest son C. attained 
 [*353] twenty-one"^ and * died; then B. died, leaving her second 
 
 son D.',who had attained twenty-one, and an infant daugh- 
 ter. At the date of the deed, certain estates stood limited, by a settle- 
 ment to which A. was party, to the use of B.'s husband for life, 
 with remainder to his sons by B. successively in tail: Held, that, 
 as the provisions were not by a father, and as there was no refer- 
 ence in the deed of trust to the settlement of the estate, and there 
 was nothing to show that A. had the settlement in his mind at the 
 time of the appointment except that he was a party to it, the 
 342
 
 EVIDENCE CONNECTING DEEDS. * 354 
 
 phrase " eldest son " meant eldest son at the time of vesting, so 
 that D. who had subsequently to that time become the "eldest 
 son " took a share in the fund; Domvile v. Winnincjton, 20 Ch. D. 
 382. 
 
 A sum of money was settled on marriage on trust for the hus- 
 band (a baronet) and wife and the survivor for life, and then to 
 transfer among all the children equally except an eldest or only 
 son, the shares of sons to vest at twenty-one and the share of any 
 child who died before the period of vesting to accrue for the bene- 
 fit of the others except an eldest or only son. There were six sons: 
 the first and last born died infants; the second attained tweniy- 
 one and succeeded his father in the title but died without issue 
 before the period of distribution; the third and fourth sons at- 
 tained twenty-one and died without issue; the fifth attained 
 twenty-one and succeeded his brother in the title, and was living 
 at the period of distribution: Held, that the second son was the 
 " eldest son " within the meaning of the settlement, and as such 
 was to be excluded from any share, but the fifth son was entitled 
 to take a share; Re Rivers, 40 L J. N. S. Ch. 87; S. C, 19 W. R. 
 318. The reports differ as to whether the fifth son took any in- 
 terest in the family estate, and as the decision turned on the pre- 
 cise words of the settlement, which were very special, the case is 
 not of much general importance. 
 
 See Lewin on Trusts, chap. xvii. s. 1, p. 354, 7th edit, and see 
 the cases on wills, 2 Jarman, 202. 
 
 Observations on Rules 137, 1S8.— Evidence con- 
 necting deeds. — It appears impossible * to say what evi- [* 354] 
 dence is sufficient to connect a deed by which provisions 
 are made for " younger children " with the provisions made for" an 
 eldest son " by a separate instrument not referred to in it, so as 
 to bring the case within rule 137. 
 
 In Teynham v. Webb, 2 Ves. Sen. 198, where the provisions for 
 the younger children were made by a grandmother and rule 137 
 was applied, the nature of the evidence is not stated: in Domvile 
 v. Winnington, 26 Ch. D. 382, supra, p. 353, where the provisions 
 were made by a grandfather, the mere fact of his having been 
 made party to a settlement under which the eldest son^^was pro- 
 vided for was held not to bring the case within rule 137. 
 
 ''Besides;" " Other than.'' 
 
 " Besides ;" " other than." — Where provisions are made for chil - 
 dren " besides " an eldest son, no children take unless there be a 
 son; while, if the provisions be for children "'other than" an 
 eldest son, the younger children take whether there is a son or 
 not; Walcott v. Bloom jiehl, 4 Dr. & War. at p. 235; S. C, Ir. 
 Eq. R. 227; cited and discussed in Sim2ison\. Frew, 5 Ir. Ch. R. 
 517, at p. 525. 
 
 343
 
 * 356 CLASS DEFINED. 
 
 [ * 355 ] * CHAPTER XXV. 
 
 VESTING OF GIFTS TO CLASSES. 
 
 Class defined: Gift to class and A. ichere A. is not a member of 
 it: where A. is a member of it: "• The children of A. and 
 B^-: Immediate gift to class: To " A. and his eldest child: " 
 Gift in remainder to class : Gift by direction to pay, &c. : 
 Gift confined to members of class living when remainder 
 falls in: Vesting notxvithstanding existence of poicer: Im- 
 plied interest in default of appointment. 
 
 " "Tesf," meaning of. — The rules as to the vesting of real estate 
 are fully discussed in Fearne, C. R. ; and therefore we shall only 
 incidentally refer to them. 
 
 As to the meaning of the word " vest," see Fearne, C. R. 1 ; 
 Hawkins on Wills, p. 221 et seq., where it is observed that " the 
 only definition that can be given of the word ' vested in English 
 law, as applied to future interests other than remainders, is, that 
 it means ' not subject to a condition precedent.' " 
 
 This chapter contains the general rules as to vesting of gifts to 
 classes applicable to deeds of every nature ;^^ the next chapter 
 contains the rules applicable to portions charged on land and to 
 settlements of personalty made by a person in loco parentis. 
 
 Definition. — " Class,''' what is. —A group of persons denoted 
 by a common description, as filling a common character, or hold- 
 ing the same position, constitute a class; Re Chapliii's Trnsts, 12 
 
 W. R. 147; S. C, 33 L. J. Ch. 183. Thus, " A.'s chil- 
 [ * 356 ] dren," or " the persons who at A.'s death shall be * B.'s 
 
 next of kin," constitute a class. On the other hand, " A. 
 and his children," or " A.'s children and B.'s children," do not 
 constitute a class; the former phrase denotes an individual. A., 
 
 *^ As marriage settlements are not common in the United States, questions 
 as to provisions for a class arise in this country chiefly in the case of lega- 
 cies. The rules governing class legacies are, however, similar to those 
 applied to provisions for a class in deeds, and the American cases on wills, 
 where the subjects of provisions for a class are chiefly considered, are there- 
 fore in point. 
 
 344
 
 CLASS DKFINED. * 357 
 
 together with a class; the latter denotes two classes. The distinc- 
 tion between a class and a class with an individual added, or two 
 classes, is one of considerable importance. The cases (all arising 
 on wills), which are collected in 1 Jarman, 261), and Theobald on 
 Wills, 2nd ed., 607; (see Re Allen, Wilson v. Atter, 20 W. R. 
 480, following Re Chaplin'' s Trusts, 12 "W. K. 147; see remarks, 
 2^ Ch. D. ^167, Re F eat I ler stone's Trusts, 22 Ch. D. Ill); show 
 that where there is a gift to an individual A. and a class, as joint 
 tenants, or tenants in common, the question, whether any, and 
 which, members of the class take, depends upon the rules appli- 
 cable to classes; and in like manner, if the gift is to two classes, 
 the question, whether any and which members of each class take, 
 must be determined without reference to the other class. 
 
 Gift to class and named individual luho is a member of tJie 
 class. — Where there is a gift to a class, and a member of the 
 class is included by name, the gift will receive the same construc- 
 tion as if he had not been named; see Re Staidioj^e's Trust, 27 
 Beav. 201; Re Jackson, Shiers v. Ashworth, 25 Ch. D. 162. 
 
 Where there is a gift to a class and a member of the class is 
 excluded by name, the gift to the other members of the class will 
 receive the same construction as if they were the only members 
 of the class; Shaiv v. M'Mahon, 4 Dr. & War. 431; S. C. 2 Con. 
 & L. 528. 
 
 Context. — The context may show that a gift to an individual 
 and a class (Porter v. Fox, 6 Sim. 485), or a gift to two classes, 
 is to be construed as if the individual and the persons constitut- 
 ing the class, or the persons constituting the two classes, formed 
 one class only; ex. gr., a gift to the children of A. living at cer- 
 tain time, and the issue of such of A.'s children as shall be then 
 dead; for though "children" and "issue of deceased children," form 
 different classes according to the definition of "class," 
 ante, p. 355, yet under such a gift the children * and [ * 357 ] 
 issue constitute but one class. So in Fletcher v. Fletcher, 
 9 L. R. Ir. 301, stated post, 360, where there was a limitation to 
 " the children of W. and G. respectively," Fitzgibbon, L. J., ob- 
 served (p. 308), that the children of W. and G. formed but one 
 class. 
 
 Per capita. — The members of the two classes, or the individual 
 and the members of the class take per capita; Fletcher v. Flet- 
 cher, 9 L. R. Ir. 301, on app. from 7 L. R. Ir. 40; see also Lin- 
 coln V. Pelham, 10 Ves. 166. 
 
 " Children of A. and B."— ''Heirs of A. and i?."— The meaning 
 of the words "the children of A. and B." will be found discussed in 
 2 Jarman, 194; Hawkins, 113; Re Featherstone's Trusts, 22 Ch. 
 D. Ill; Theobald on Wills, 2nd ed. p. 241; the meaning of "the 
 children of A. and B. respectively," in Fletcher v. Fletcher, 9 L. 
 R. Ir. 301 on app. from 7 L. R. Ir. 40, and the effect of a limita 
 tion to "the heirs of A. and B.," (nitr, \h 283. 
 
 345
 
 * 358 IMMEDIATE PROVISION FOR A CLASS. 
 
 Rule 139. — Immediate gift to class (a). — Under an immediate 
 provision for persons forming a class (as " children," or " issue "), 
 only those in existence at the date of the deed take/* and they take 
 as joint tenants,^^ unless the contrary is expressed. 
 
 "B., having divers sons and daughters, A. giveth land to B., 
 et liberis suis, et a lour heires, the father and all his children do 
 take a fee simple jointly by force of these words ' their heirs ; ' 
 but if he had no child at the time of the feoffment, the child born 
 afterwards shall not take;" Co. Lit. 9 a. 
 
 "In all grants of estates in lands there must be a person in esse 
 to take at the time the estate vests by the grant; therefore, in 
 case of a feoffment to one and his children and their heirs, if he 
 has children at the time, the father and all his children take 
 jointly in fee; but if he has no child, the father alone takes; an 
 afterborn child cannot take, for the gift was immediate; " per 
 Downes, C. J., Crone v. Odell, 1 Ball & B. 458. 
 
 [*358] * Examples. —Demise to A. and B., his wife, et 
 eornm primogenitm iwoli successive : they had then no 
 issue, but afterwards had issue: Held, that after the death of A. 
 and B., the issue could take nothing, as be was not in esse at the 
 time of the grant, and by the grant he was to take jointly; 
 Stevens v. Lawton, Cro. El. 121; S. C, sub nom. Stephen^s Case, 
 Owen, 152. 
 
 Immediate trust " for the children of A., who at the time had 
 three children and now hath six: " Held, that the trust fund be- 
 longed to the three only; Wai^en v. Johnson, 2 Rep. in Ch. 69. 
 
 " To A. and his eldest child.''^ — It has been thought that a 
 limitation to "A. and his eldest child," gave an estate in remain- 
 
 (ft) See Hawkins on Wills, 68; 1 Jarman on Wills, 156. 
 
 ^* Our law, instead of supposing that a gift to objects thus brought to- 
 gether should naturally include all of that class who may fulfil the descri])- 
 tif)n at any time, presumes rather that the testator intended the class to be 
 ascertained, upon his death, and neither earlier nor later. In the case of 
 deeds the class is similarh'^ ascertained at the time when the provision is to 
 take effect. Jenkins r. Freyer, 4 Paige (N. Y.), 47; Downing v. Marshall, 
 23 N. Y. 373; Worcester v. Worcester, 101 Mass. 132. The rule extends to 
 grandchildren, issue, brothers, nephews, nieces and cousins as well as to 
 children. Smith v-. Asliurst, 34 Ala. 210; State v. Eaughley, 1 Houst. 
 (Del.) 561; Myers i'. Myers, 1 McCord Ch. (S. C.) 214. The 'presumption 
 is not varied whether there is an aggregate sum given to the class or a cer- 
 tain sum to each member of the class. Robinson v. McDiarmid, 87 N. C. 
 455; Chasmar r. Bucken, 37 N. J. Eq. 415. 
 
 **'^ The policy of American law is opposed to the notion of survivorship, 
 which is the chief characteristic of a joint tenancy, and therefore regards all 
 joint estates as tenancies in common. In many of the states it is provided 
 by .statute that all estates to two or more persons shall be taken to the 
 tenancies in common unless expressly declared to be joint tenancies by the 
 deed or instrument creating them. See the statutes of the various states on 
 this point collected in 1 Washb. Eeal Prop. 410. 
 
 346
 
 PROVISION IN REMAINDER FOR A CLASS. * 350 
 
 der to the child if he was not born at the date of the limitation: 
 see per Saunders, Serj., arguendo, CoUhirst v. Bejushin, Plowd. 
 (at p. 29a), and per Mounson, J., in Brenfs Case, 2 Leon. 14: 
 per Hougliton, J., Tyler v. Fisher, Palm. 34; but this i.-^ erroneous 
 (see the Prior of Grimesby v. B., 17 Ed. 3, 29. pi. 30: 18 Ed 3. 
 59, pi. 91; 2 Eoll. Abr. 417, pi. 8), for if the child had been in 
 esse at the time, he would have taken jointly, and as he was in- 
 capable of doing so, he could take nothing: see ante, p. 283. 
 
 The rule applies to gifts by way of appointment. 
 
 Demise to a husband, his wife, '" and their children at the as- 
 signment of the husband." There was but one child at the date 
 of the lease, but afterwards others were born. The wife died 
 in the lifetime of the husband. The husband assigned to a child 
 born after the dale of the deed: Held, that he took no interest; 
 Cole & Friendship's Case, 1 Leon. 287. 
 
 Rule 140.^*^— 6r'^/^ in remainder to class (b). — A provision by 
 way of use of realty or by way of trust of realty or personalty in 
 remainder to persons forming a class, as " children," or 
 "issue," vests in those who are in existence at * the [ *359] 
 date of the deed, subject to open and let in those who 
 subsequently come into existence before the remainder falls into 
 possession: and if none are in existence at the date of the deed, 
 it vests in all who come into existence before the remainder falls 
 into possession. 
 
 As to whether persons taking under rules 139, 140 take as ten- 
 ants in common or joint tenants, see ante. Chap. XIX. and Chap. 
 XXIIL pp. 306. 320; Fitzherbert v. Heathcote, cited in Bay ley v. 
 Morris, 4 Ves. 794. 
 
 It used to be thought that children born after the date of tlie 
 deed could not take; as when A. levied a fine to the use of B. for 
 life, and after to the use of the children of C, procreatis. C, at 
 the time of the fine, had two sons, and before the death of B. had 
 two daiaghters, and it was held that the daughters could not take; 
 
 (b) See Hawkins on Wills, 71 ; 2 Jarman on Wills, 156. 
 
 ^ Notwithstanding the rule that a class is ascertained at the death of the 
 testator, or at the date of the deed, a distinction is made where the disposi- 
 tion is not to take effect at once. In such a case the property vest.s in those 
 who are in existence at the date of the deed, or at the death of the testator 
 in the case of a hequest, hut will, up to the time when the provision shall 
 come into possession, open to let in afterl)orii mcmbeis of the class. Cooper 
 V. Hepburn. 1.5 Gratt. (Va.) o.")H; Hall i: Kockin^'liam llank, Ki X. H. 270; 
 Hall V. Hall, 123 Mass. 120; Ross v. Drake, 37 Pa. St. 37"); Ay ton r. Aytou, 
 46 Pa. St. 25; Moore v. Dimoud, 5 li. I. 129; Tayloe v. Mosher, 29 Md. 445. 
 
 347
 
 *360 PROVISION IN REMAINDER FOR A CLASS. 
 
 Frederick v. Frederick, Cro. El. 334; but this case must be con- 
 sidered as overruled. 
 
 Examples (1 ) Realty. — Limitation in remainder " to the use 
 of the issues female of the body of A. and the heirs of their 
 bodies," A. having then no daughter : Held, that all the daughters 
 *of A., born before the expiration of the prior limitations, took as 
 joint tenants for life, with several inheritances; Mattheivs v. 
 Teinple, Comb. 467; S. C. sub nom. Earl of Siissex v. Tetnjyle, 1 
 Ld. Kaym. 310. 
 
 By marriage settlement lands were settled upon the husband 
 for life, with remainder to the issue of the marriage, in such 
 shares, &c., as he should appoint, and in default of appointment, 
 to the issue, share and share alike : Held, that the several chil- 
 dren of the marriage, as they respectively came into existence, 
 took immediate vested interests, liable to be divested by an exer- 
 cise of the power; Heron v. Stokes, 2 Dr. & War. 89; S. C, 1 Con. 
 & L. 270; 3 Ir. Eq. R. 163; 4 Ir. Eq. R. 284. 
 
 (2.) Leaseholds. — Trust of leaseholds in a marriage settle- 
 ment, after the death of the husband and wife, for 
 [ * 360 ] * the children as they should appoint, and in default of 
 appointment to all the children equally : Held, to be a 
 vested remainder, which opened to take in the children as they 
 came into being; Lawrence v. Maggs, 1 Ed. 453. 
 
 W. and G. (two brothers) being absolutely entitled (in certain 
 events which happened) as tenants in common to leasehold 
 houses, by deed, made in 1840, assigned the premises to S. upon 
 trust for M. for life; and after the death of M., to the use of S.; 
 and after the death of S., in trust for the children of W. and G. 
 "respectively," in such shares as they or either of them might 
 appoint; and in default of appointment, then to and amongst the 
 said children equally and share alike. W. by will, purported to 
 appoint all the premises to his then only child W. F., and died in 
 1869 without leaving any other child surviving. G. died, leaving 
 several children and without making any appointment; and M. 
 and S. also died : Held (afltirming the decision of the Court be- 
 low), that the children of both W. and G. living at the date of 
 the deed of 1840, and subsequently born were the objects of the 
 non-exclusive power, and also the objects to take in default of 
 appointment; and that, there having been only an exclusive exer- 
 cise of the power, all such children became entitled; and that 
 they took per capita; Fletcher \. Fletcher, 9 Lr. Ir. 301, on app. 
 from 7 L. R. Ir. 40. 
 
 (3.) Personalty. — Marriage settlement of personalty on trust 
 for the wife for life, remainder to her children as she should ap- 
 point, and in default of appointment for the children equally : 
 348
 
 EXPRESS LIMITATIONS IN DEFAULT OF APPOINTMENT. * 3(52 
 
 Held, that the interests of the children vested at birth, liable to be 
 divested by an appointment; Vanderzee v. Aclom, 4 Ves. 771; 
 see Gordon v. Levi, Amb. 364 (where the marginal note is incor- 
 rect). 
 
 (4.) Mixed Realty and Personalty. ^Covenant on marrlaj^o 
 by the husband to settle all the real and personal estate of which 
 he should die seised or possessed on his wife, if surviv- 
 ing, for life, with remainder, after the death *of him- [ * 3r)l ] 
 self and his wife, for all the children of the marriage 
 equally: Held, that all the children became entitled to vested in- 
 terests on coming into existence; Naylerv. Wetherell, 4 Sim. 114. 
 
 Observation. — Gift by direction to pay to, dec. — This and the 
 previous rule apply where the gift to the childi'en is effected by a 
 direction "to pay :" Vanderzee v. Aclom, 4 Ves. 771: "to pay, 
 apply, or dispose of ;" Be Mino7''s Trust, 28 Beav. 50; or " to 
 transfer, assign, and make over ;" Jopp v. Wood, 2 De G. J. il' 
 S. 323; "to divide among ;" Lambert v. Thivaites, L. K. 2 Ecj. 
 151, but see rule 149, 2>ost, p. 391. 
 
 - Observation.— (xi/^ confined to members of class living vlwu 
 remainder falls in. — The rule does not apply if the gift is to such 
 of the persons forming the class as shall be living when the re 
 mainder falls into possession; Re Wollaston's Settlement, 27 Beav. 
 642; Re Edgington, 3 Drew. 202. 
 
 Rule 141. — Vesting under express limitations in default of ap- 
 pointment. — The existence of a power of appointment does not 
 prevent interests taken under express limitations in default of ap- 
 pointment from vesting until and in default of appointment. See 
 per Kindersley, V.-C, Lamberts. Thwaites, L. R. 2 Eq. 155; Sug- 
 den on Powers, 8th ed. 452; Fearne, C. R. 194; Farwell on 
 Powers, 384; Chance on Powers, ch. XXII., s. 2 (where the cases 
 are reviewed). 
 
 In Leonard Lovie's Case, 10 Rep. 78 a., see 85 a. S. C. ; sub nom. 
 Proivsev. Worthinge,2 Brownl. 108, it was erroneously decided that 
 the interests taken in default^of appointment were contingent;^ ui.d 
 the same view was originally taken by Lord Hardwicke, C, iu 
 Walpole V. Conway, Barn. 153; but in Cunningham v. Moody, 1 
 Ves. Sen. 174, he appears to have altered his opinion; see per Lord 
 Kenyon, C. J., 4 T. R. 64; 5 T. R. 521. 
 
 "Nothing is better settled than that, where there is a power 
 of appointment to a class, and in default of appointment 
 * over to that or another class, this class takes a vested | * 362 J 
 interest, subject to bo divested bv appointment. There 
 
 340
 
 * oG3 EXPRESS LIMITATIONS IN DEFAULT OF APPOINTMENT. 
 
 was some doubt upon this in several cases; but the rule was set- 
 tled by Doe d. Willis v. Martin, (4 T. E. 39) ;" per Sugden, C, 
 Heron v. Stokes, 1 Con. & L. at p. 283; S. C, 2 Dr. & War. 89; 
 wherever Sugden, C, at p. 115: — "The rule is settled that no 
 gift over on a contingency can prevent the previous estate from 
 vesting. If the contingency happens the prior vested estate will 
 be divested :" S. C, 3 Ir. Eq. R. 163; 4 Ir. Eq. R. 284; where 
 the rule is stated at p. 285: — "It is the clear and settled law of 
 the land that a gift in default of appointment gives vested in- 
 terests to all the objects of the power, subject to be divested by 
 its exercise." And see ib. pp. 297, 298. 
 
 Examples (1) Realty. — Limitation in marriage settlement to 
 use of Avife and husband successively for life, remainder to the 
 use of all and every the child or children of the marriage for such 
 estates, &c., and in such parts, &c., as the husband and wife should 
 by deed, or as the survivor of them should by deed or will ap- 
 point, and in default to the children equally as tenants in com- 
 mon in fee: Held, that the interests in default of appointment 
 were vested; Doe d. Willis v. Martin, 4 T. R. 39. See to the same 
 effect Cunningham v. Moodtj, 1 Ves. Sen. 174; Doe d. Tanner v.* 
 Dorvell, 5 T. R. 518; Smith v. Camelford, 2 Ves. Jun. 698; Cox 
 V. Chamberlaine, 4 Ves. at p. 636; Reade v. Reade, 5 Ves. 744 (see 
 p. 748); Campbell v. Sandys, 1 Sch. & Lef. 293; Osbrey v. Bury, 
 1 Ball & B. 53; Heron v. Stokes, 2 Dr. & War. 89; S. C, 1 Con. 
 & L. 270; 3 Ir. Eq. R. 163; 4 Ir. Eq. R. 284; ante, p. 359. 
 
 (2) Personalty. — Gordon v. Levi, Amb. 364, where the mar- 
 ginal note is incorrect; Madoc v. Jackson, 2 Br. C. C. 588; Teyn- 
 ham\. Webb, 2 Ves. Sen. 198; Cholmondeley v. Meyrick, 1 Ed. 
 77; Lawrence v. Maggs, 1 Ed. 453; Salisbury v. Lambe, Amb. 383; 
 S. C, 1 Ed. 465; Mostyn v. Mostyn, 1 Coll. 161; Rooke v. Rooke, 
 
 2 Ed. 8; Hymes v. Redington, 1 Jo. & Lat. 589; S. C, 
 [ * 363 ] 7 Ir. Eq. R. * 405, the two last-mentioned cases being 
 
 on the construction of marriage articles. 
 
 Where poiver is by will only. — Even if the power is to appoint 
 by will only, the rule as to express limitations in default of ap- 
 pointment is the same. {Secus, when the gift in default is im- 
 plied from the power; seeposf, p. 865.) 
 
 By post-nuptial settlement freeholds were conveyed to trus- 
 tees, on trust to pay the rents to A. and his wife during their re- 
 spective lives, and after the death of the survivor, to sell and di- 
 vide the proceeds among all and every the children of A. in such 
 shares and proportions as she should by will appoint: Held, that 
 the property was vested in all the children, subject to be divested 
 350
 
 IMPLIED GIFT IN DiFAlLT OF APPOINTMENT. * 364 
 
 bv an exercise of the power, and that, the power not having been 
 exercised, the representatives of a deceased child were entitled to 
 his share; Lambert v. Thivaites, L. R. 2 Eq. 151, where the ear- 
 lier cases are discussed. 
 
 Rule 142. — Implied gift in default of appointment. — "Where 
 there is a power of appointment among a class, but no express 
 gift in default of appointment either to that class or to any other 
 class or individual, or there is such a gift to arise only on failure 
 of objects of the power, there is implied in default of appoint- 
 ment a gift to the class of persons who are capable of taking un- 
 der an appointment in pursuance of the power; 2 Fearne, C. R. 
 194: Farwell on Powers, 379; Hawkins, 57; Jarman on Wills, 
 552, note (q). 
 
 Observation. — Vesting where gift in default is implied. — Rule 
 141 as to vesting applies to interests implied under rule 142: 
 Chance on Powers, s. 2774 et seq. ; unless the power is to appoint 
 by will only ; see 2^ost, p. 365. 
 
 " If the instrument does not contain a gift of the pro- 
 perty to any class, but only a power to A. to give it, * as [ *364 ] 
 he may think fit, among the members of that class, those 
 only can take in default of appointment who might have taken 
 under an exercise of the power; " per Kindersley, V.-C. ; Lambert 
 V. TIm-aites, L. R. 2 Eq. 155. 
 
 We have not been able to find any case of a deed containing a 
 gift over to arise only on failure of the objects of the power; see 
 'ivitts V. Boddington, 3 Br. Ch. 95; S. C. cited 5 Ves. 503; Butler 
 V. Gray, L. R. 5 Ch. 26. 
 
 Examples.— Settlement of leaseholds on trust for husband and 
 wife for their lives, and if they should have issue, then after the 
 decease of the survivor, to go to such issue, in such proportion, 
 manner, and form as they or the survivor should appoint; the 
 wife survived the husband; there was one child only, who died be- 
 fore the wife; no appointment was made: Held, that the child 
 took: Madoc v. Jackson, 2 Br. C. C. 588. 
 
 Trust in remainder for C. for life, and after his decease on 
 trust to assign amongst such of his children, and in such manner, 
 shares, terms, and proportions, as he should by any writing ap- 
 point. C. died without exercising his power, having had several 
 children. Three of them died before him, two after him and be- 
 fore the determination of the interests prior to Ch life interest; 
 Held, that all C.'s children took vested interests; Wilson v. Du- 
 
 . 351
 
 * 365 WHERE POWER IS TESTAMENTARY ONLY. 
 
 guid, 24 Ch. D. 244. See to the same effect Fenwick v. Green- 
 well, 10 Beav. 412. 
 
 Where the objects of the power are to live till a future time. — 
 "Although the power be to appoint by deed or will yet if the ob- 
 jects of it are required to be living at a deferred period, the im- 
 plied gift in default will be to those persons only;" 1 Jarmau on 
 Wills, 552, citing Half head v. Shepherd, 28 L. J. Q. B. 248; Re 
 White's Trusts, Job. (356; Ke Phene's Trusts, JL. R. 5 Eq. 340; ' 
 Stohvorthy v. Saucroft, 33 L. J. Ch. 708. See Re Meade, 7 L 
 R. Ir. 51, and the remarks of Chitty, J., Wilson v. Duguid, 24 
 Ch. D. at p. 251. 
 
 Where only survivors take. — The context may show that only 
 
 objects who survive the donee of the power are to take; 
 
 [*365] Winn v. * Fenwick, 11 Beav. 438; S. C, 18 L. J. Ch. 
 
 337. See, however, the remarks of Kindersley, V.C., 
 
 L. R. 2 Eq. 159. 
 
 Observation.— -E'a::p?^ess gift in defatilt -of exercise of power. — 
 If there is an express gift over in default of any exercise of the 
 povjer (not in default of objects of the power) to persons other 
 than the objects of the power, such express gift of course prevents 
 the implication of a gift to such objects; Jenkins v. Quinchant, 5 
 Ves. 596, note (a), see p. 601; Goldring v. Inwood, 3 GifP. 139 (a 
 will case); Farwell on Powers, 382. 
 
 One particular instance of the rule deserves stating sepa- 
 rately : — 
 
 No express gift and poiver testamentary only. — Where there is 
 no express gift in default of appointment and the power is to ap- 
 point by will only, none but persons who survive the donee of 
 the power from the class and are capable of taking under the im- 
 plied gift in default of appointment; Walsh v. Wallinger, 2 Russ. 
 & My. 78; Freeland v. Pearson, L. R. 3 Eq. 658; Lodery. Loder, 
 2 Ves. Sen. 530; Sinnet v. Walsh, 5 L. R. Ir. 27; and consequently 
 interests under the implied gift are contingent on survivorship. 
 
 Settlement of fund after the deaths of A. and B. for such de- 
 scendants of C. as B. should appoint by will: Held, power in the 
 nature of a trust for descendants of C. living at B.'s death, en- 
 titling such descendants in equal shares as tenants in common in 
 default of appointment, and that an appointment to the legal per- 
 sonal representatives of descendants of C. who died before B. was 
 unauthorized; Re Susanni, 47 L. J. N. S. Ch. 65. 
 
 Observation. — Persons taking in default are tenants in com- 
 352
 
 RULES 1-11 A]SD 142 CONTRASTED. * 366 
 
 mon. —The persons taking under an implied gift in default of ap- 
 pointment take as tenants in common; Re SHSanni,41 
 L. J. N. S. Cb. 65; * Wilson v. Duguid, 24 Ch. D. 244. [ *366 ] 
 See also Casterfon v. Southerland, 9 Ves. 445; Re White, 
 J'ohn. 656 (will cases). 
 
 Observation. — Rules 141 and 142 restated. — The two preceding 
 rules, Nos. 141 and 142, may be contrasted as follow; see Lambert 
 V. Thivaites, L. R. 2 Eq. at 155. If there be a gift to a class, 
 with a power to A. to determine in what manner and in what 
 shares the members of the class are to take, they take immediately 
 vested interests, subject to be divested by an appointment, so that 
 in default of appointment they all take. 
 
 If there be no gift to a class, but a mere power to A. to give the 
 property in such manner and in such shares as he thinks fit to 
 the members of a class, and either no express gift in default of 
 appointment, or there being such a gift, it is to arise only on 
 failure of objects of the power, there is implied in default of ap- 
 pointment a gift to those members of the class only who are ob- 
 jects of the power. 
 
 23 INTEEPEETATION OF DEEDS. 353
 
 368 PORTIONS CHARGED ON LAJSTD. 
 
 [ * 367 ] * CHAPTER XXYI. 
 
 PORTIONS. 
 
 " Vesting " defined : Portions charged on land, when vested : 
 Where no time appointed for payment: Where payable on 
 event personal to portionist : Payment postponed for con- 
 venience of estate: Portions out of '''■rents and profits :^^ 
 Portions not charged on land : When vested : Where the only 
 gift is in the direction to pay, &c. : Maintenance clauses : 
 Divesting of portions: Gifts over: Death before parents: 
 Death before portion ^'■payable,'''' &c. : Where only children 
 surviving parents take : Where all take if some child sur- 
 vives parents : Indefeasible vesting irrespective of survivor- 
 ship : Where no reference to age or marriage : " Leave " con- 
 strued " have " ; Substitutionary gift to issue of child dy- 
 ing before distribution: Recapitulation. 
 
 On the Vesting of Portions. 
 
 " Vested''^ interests, what aref — The meaning of the word 
 " vest " will be found discussed in Hawkins on Wills, p. 221, et 
 seq., cited ante, p. 355. 
 
 The rules as to the vesting of portions differ according as they 
 are charged or not charged on land, see per Lord Hardwicke, C, 
 Teynham v. Webb, 2 Ves. Sen. at p. 207. They have only been 
 established after considerable differences of opinion, and dicta 
 and even decisions of eminent judges will be found in accordance 
 with them. 
 
 [ * 368 ] * ( 1- ) Portions Charged on Land. 
 
 There is no rule of law which prevents a settlor from directing 
 or empowering the donee of a power of appointment to direct the 
 vesting of portions at any time the settlor or donee may choose. 
 The following rules are rules of construction, applicable only in 
 the absence of clearly expressed intentions as to the time of vest- 
 ing. See Henty v. Wrey, 21 Ch. D. 332, where Lindley, L. J., in 
 354
 
 VESTING WHERE NO TLAIE ITAMED. * 369 
 
 his (written) judgment states (at p. 350) the results at which he 
 had arrived from a careful examination of all the authorities 
 which he had examined, viz. — 
 
 " 1. That powers to appoint portions charged on land, ought, 
 if their language is doubtful, >to be construed so as not to auth- 
 orize appointments vesting those portions in the appointees be- 
 fore they want them, that is, before they attain twenty-one or (if 
 daughters) marry. 
 
 " 2. That where the language of the power is clear and unam- 
 biguous, effect must be given to it. 
 
 " 3. That where, upon the true construction of the power and 
 the appointment, the portion has not vested in the lifetime of the 
 appointee, the portion is not raisable, but sinks into the inherit- 
 ance. 
 
 "4. That where, upon the true construction of both instruments, 
 the portion has vested in the appointee, the portion is raisable, 
 even although the appointee dies under twenty-one, or (if a 
 daughter) unmarried." 
 
 These conclusions must apply equally to cases in which the 
 portions are limited directly in the settlement itself, and not 
 through the medium of a power. The question in either case is 
 one of construction (21 Ch. D. 338, 339); in the former case, of 
 the settlement only, in the latter, of the instruments conferring 
 and those exercising the power. In the latter class of cases {e.g., 
 Henty v. Wrey), the further question (of law) may arise as to 
 fraud on the power, a subject foreign to this work. 
 
 *Rllle 143. — Where no time named for payment (a). [ *369 ] 
 — Where no time is named for the vesting or payment 
 of portions charged on land, they vest in sons at twenty- one, 
 and in daughters at twenty-one or on marriage (Davies v. Biig- 
 uenin, 1 H. & M. 730), and not before, unless an intention clearly 
 appears to the contrary. 
 
 Interest in portions. — The rule is applied even though interim 
 interest or maintenance is given; Brathicaite v. Birithicaite, 1 
 Vem. 334; Boycot v. Cotton, 1 Atk. at p. 555; Ruby v. Foot, 
 Beatt. 581, stated posf, p. 371. 
 
 " The meaning of a charge for children is that it shall take 
 place when it is wanted. It is contrary to the nature of such a 
 charge to have it raised before that time; " /)er Lord Thurlow, 
 C, Hinchinbroke v. Seymour, 1 Bro. C. C. 305 (a case not cor- 
 
 (a) See Rules 144, 14"). As to tho menniii<; of "time of i)ayiiu'nt," .see 
 post, p. 394. In some of the cases " time of payment " is used where "time 
 of vesting" is meant; ex. (jr., Lotcthcr v. Condon, 2 Atk. i;U. 
 
 355
 
 * 370 PORTIONS CHARGED ON LAND. 
 
 rectly reported; see per Jessel, M. R., 21 Ch. D. 341); see also 21 
 Ch. D. 339, 356. 
 
 " The Court always goes as far as it possibly can to hinder the 
 raising portions out of land for the benefit of representatives:" 
 per Lord Hardwicke, C, Van v. Clark, 1 Atk. at p. 513. 
 
 " As to the general rule with regard to portions to be raised 
 out of land, it has certainly been established, ever since Pawlet 
 V. Pawlet (stated i^ost, p. 374), that where there is a portion to 
 be raised out of land, if the person dies before the day of pay- 
 ment comes, it sinks for the benefit of the heir, and determined 
 on this reasoning, that the child did not want the portion, and 
 therefore should not burthen the inheritance;" per Lord Hard- 
 wicke, C, Lowiher v. Condon, 2 Atk. 131, a will case. 
 
 " It appears to me that the result of all the cases is that what 
 the Court means by the child living to the time it should 
 [ * 370 ] want the portion, is that the child should attain * twenty- 
 one or be married; " per Lord Manners, C, Rubij v. Foot, 
 Beatt. 581 (at 586), where many cases are commented on; see per 
 Turner, L.J., Remnant v. Hood, 2 De G. F. & J. at 412. 
 
 "There is considerable difficulty in reconciling all the authori- 
 ties upon the question when a portion charged on land vests and 
 when it does not, and the Court has often struggled even against 
 the words of an instrument in order to avoid coming to the con- 
 clusion that a portion charged on land in favour of a child vested 
 before such child attained twenty one or married; " per Lindley, 
 L.J., Henty v. Wrey, 21 Ch. D. at 358. 
 
 See the rule stated and authorities cited in 2 Spence, Eq. Jur. 
 392 et seq.; Peachey on Settlements, Ch. XIV. p. 409; 3 Dav. 
 Couv. (3rd ed. ), Pt. 1, 440; Lewin on Trusts (7th ed.), 365; 
 Sugd. Law of Property, 143 et seq. 
 
 There was formerly some difference of opinion as to this rule; 
 Rivers v. Derby, 2 Vern. at 74; Smith v. Smith, ibid. 92. See the 
 latter part of Cox's note to 2 P. Wms. 612; and 3 Dav. Conv. 
 441, note (u). 
 
 Examples. — By marriage settlement a term was vested in 
 trustees, to commence after the death of the survivor of the father 
 and mother, in trust within twelve months after the death of the 
 survivor to raise portions for daughters. Held, that a daughter 
 who died at the age of five, after the father's death, and in the 
 mother's lifetime, was not entitled; Brnen v. Bruen, or Brewin v. 
 Brexvin, 2 Vern. 439; S. C. Prec. Ch. 195; 1 Eq. Ca. Abr. 267, pi. 
 2 (where it is added, "The daughter died within the year, but it 
 does not so appear by this report ") ; see per Turner, L. J., Rem- 
 nant V. Hood, 2 De G. F. & J. at 413. 
 
 Under a marriage settlement a father had power to create a 
 term for raising portions for younger children, to be paid at such 
 time as the trustees should appoint; the father limited the term 
 356
 
 VESTING WHERE NO TIME- NAMED. * 372 
 
 and died. Held, that a youuger child who .'survived the father 
 and died under twenty-one, the trustees not havinrj, as 
 to him, made * anV appointment, took nothing; irarr v. [ * 371 ] 
 Wan\ Free. Ch. 2*1 3. 
 
 In Ruby v. Foot, Beatt. 581, by a resettlement made by a 
 widow, tenant for life in possession, and her eldest son, a sum of 
 £2500 was charged, to be raised at the end of twelve years after 
 the widow's death, to be paid to the younger children "in the 
 following proportions, viz., £1000 to J.," and £500 to each of 
 the three daughters, to be paid to them respectively when raised, 
 and until raised, £150 annually was to be paid out of the rents 
 and profits by way of maintenance. J. subsequently died under 
 twenty-one in his mother's lifetime. Held, ttiat the £1000 was 
 not to be raised. Lord Manners, C, said: — "The general rule 
 is, that where there is a charge upon land, with or without in- 
 terest, payable at a future day, it shall not be raised when the 
 party dies before the time of payment: the exception to that rule 
 is, where the time of payment is postponed for the convenience 
 of the estate, i.e., where the person is of capacity to receive and 
 to have occasion for the charge, but the estate is not in a situa- 
 tion to pay; as, for instance, if an estate be limited to A. for life, 
 remainder to B., charged with a sum of money for C, payable on" 
 the death of A.; if C. should die before A., yet the representative 
 of C. would be entitled; for A. had the estate disencumbered, and 
 the money could not be raised in his lifetime, but C. had a vested 
 interest in the charge, as well as the remainderman in the estate 
 charged" (6). 
 
 See, to the same effect, Tournay v. Tournay, Prec. Ch. 290. 
 Brathicaite v. Brathwaite, 1 Vern. 334. 
 
 An example of both branches of the rule is Davies v. Huguenin, 
 1 H. & M. 730 (S. C. 32 L. J. Ch. 417; 11 W. R. 1040; 8 L. T. 
 N. S. 443; 2 N. R 101), where the representatives of a daughter 
 who attained twenty-one and died a spinster in her parent's life- 
 time were held to be entitled (see 1 H. & M., p. 743), 
 but the representatives * of a child who died an infant [ * 372 ] 
 were held not to be entitled to portions. 
 
 See the cases discussed in Edgeicorth v. Edgeicorth, Beat. 328; 
 Remnant v. Hood, 2 De G. F. & J. 396, on app. from 27 Beav. 
 74; Davies v. Huguenin, 1 H. & M. 730, at 743 et seq; Henty v. 
 Wrey, 19 Ch. D. 492; S. C, 21 Ch. D. 332. 
 
 Observation {1).—Rule applied in favour of other portion- 
 ists. — The Rule will be applied for the benefit not only of the 
 heir or person taking the estate, but, if such an intention is ex- 
 pressed, for the benefit of the other merabers'of the class of por- 
 tionists; Dames v. Huguenin, 1 H. & M. 730, at 740. 
 
 {b} The remarks tliat follow in the judgment, il' correctly reported, are not 
 in accordance with Kule 145, jjosi, p. ^575. 
 
 357
 
 * 373 PORTIONS CHARGED ON LAND. 
 
 Observation (2). — Rulo excluded by context or circumotances. 
 — The context or circumstances raay show an intent that the 
 portions shall vest immediately; Mayheiv v. Middleditch, 1 Bro. 
 C. C. 162, where only one child survived the parents. Lord 
 Thurlow, C, said (p. 165), "The point is not brought before the 
 Qpurt whether any died before twenty-one or marriage, so as not 
 to want the portion. It is clear all the children were designed, 
 according to the appointment. As to the time of vesting, accord-' 
 ing to the instrument, without any time named", they must vest 
 immediately. This differs from all the cases, for this is a case 
 where, after marriage and upon a view of an existing family, the 
 parents have given portions to persons described." 
 
 Rule 144.*' — Where payable on event, personal to portionist. — 
 A portion charged on land and made payable on the happening 
 of some event personal to the portionist does not vest unless and 
 until that event happens, unless an intention clearly appears to 
 the contrary; 2 Spence. Eq. Jur. 896; 8 Dav. Conv. 8rd ed. Pt. 1, 
 p. 427; Lewin on Trusts, 7th ed., 367; Co. Litt. 237 a, Butler's 
 note (1), and per Turner, L. J., Remnant v. Hood, 2 De G. F. & 
 J. at p. 410. 
 
 Interest on portions. — The fact that interest on the portion is 
 
 given does not exclude the operation of the Rule; Boy cot 
 [*373] V. * Cotton, 1 Atk. at 555 (cited post), where interest 
 
 was given at 5 per cent. ; Gaiuler v. Standerwick, 2 Cox, 
 15; S. C. 1 Bro. C. C. 105 n. (a will case) ; Rich v. Wilson, Mosely, 
 68; per Lindley, L. J., Henty v. Wrey, 21 Ch. D. at p. 356; 
 and see Wakefield v. Richardson, 13 L. R. Ir. 17 (stated post, 
 p. 401), where maintenance was given, but the argument that the 
 daughter who died an infant took nothing was not disputed. 
 
 Rule stated.— ''li is very clear that charges on land, payable at 
 a future day. cannot be raised if the party dies before the pay- 
 ment; there is no difference at all, whether the charge is created 
 by deed or will (a), nor whether it is provided by way of portion 
 for a child or given merely as a legacy by collateral relations or 
 
 {a) That the rule applies to settlements and wills alike : see. Smith v. 
 Smith. 2 Vera. 92. ^ ^^ „^ , ^.^, 
 
 «' This rule, originally laid dowa in Pawlett v. Paivlett, 1 Ver. 204, 2ol, 
 that a portion charged on land will not vest until the time of payment, is 
 also oewerally followed in the United States. Lyman v. Vanderspeigel, 1 
 Aik Ivt ) 280; Birdsall v. Hewlett, 1 Paige (N. Y.>. 34; Harris v. Fly, 7 
 Pai<re (n' Y ) 429- Marsh v. Wheeler, 2 Edw. Ch. (N. Y.) 163; Eoherts v. 
 Mafin, 5 Ind.' 18; Roberts v. Brinker, 4 Dana (Ky.), 571. See also Rule 145, 
 post, and note. 
 
 358
 
 PAYABLE ON EVENT PERSONAL TO POKTIONIST. * 374 
 
 Others. ... I have often heard it said (6), that the reason why 
 legacies, &c., charged on laud, payable at a future day, shall not 
 be raised if the legatee dies before the day of payment, though 
 it is otherwise in the case of a charge on the personal estate, is 
 this, that the heir is a favourite of a court of equity, and ought to 
 have the preference of the representative of a legatee, and like- 
 wise that the Court will go as far as they can in keeping the rea'^ 
 estate entire, and as fi'ee fi'om incumbrances as possible. But 1 
 think the Court has never gone upon such reason ; but the true 
 reason I take to be this, that the Court will govern themselves, as 
 far as is consistent with equity, by the rules of the Common Law. 
 In the case of personal estate, the rule is the same here as in the 
 Civil Law (g), that there may be an uniformity of judgments in 
 the diiferent courts; but in the case of lands, the rule of the Com- 
 mon Law has always been adhered to; " per Lord Hardwicke, C, 
 Prowse v. Abingdon, 1 Atk. at 485. 
 
 * "• It is settled now, whether the portion charged upon [ * 374 ] 
 land, be given with or without interest, by deed or will, 
 if the person dies before the age at which it becomes payable, it 
 shall sink into the estate;" per Lord Hardwicke, C, Bojjcot v. 
 Cotton, 1 Atk. at p. 555. And see per Lord Hardwicke, C, Har- 
 vey v. Aston, 1 Atk. at p. 879. 
 
 "It is a well established rule as to portions or legacies payable 
 cut of land, that if made payable at a certain age, or marriage or 
 other event personal to the party to be benefited, and such party 
 die before that time arrive, the portion or legacy is not to be 
 raised out of the land; " per Lord Cottenham, C, Evans v. Scatty 
 1 H. L. C. at p. 57. 
 
 Examples. — A term of years was limited in a settlement on 
 trust to raise f 2,000 for the davighters, and maintenance yearly 
 not exceeding £20 per annum; if one daughter, £2,000, and if 
 any daughter died, the survivors or survivor, if more daughters 
 than one, to have the part of the daughters dying : viz., if the 
 father die without issue male, or having such issue male by his 
 then wife, if such issue should die in minority or unmarried, the 
 trustees should out of the premises levy and raise £2,000 for the 
 portion and portions of such daughter and daughters, together 
 with a competent yearly maintenance for every such daughter and 
 daughters not exceeding £20 per annum, and the £2,000 to be 
 paid at twenty one or marriage, which should lirst happen. The 
 father died, leaving one son, who died without issue, leaving a 
 sister who died under age and unmarried. Held, that she was not 
 entitled to a portion : Bond's Case, 2 Ca. Ch. 165. 
 
 See Verney v. Verney, 2 Ed. 26, which is also an example of 
 the next Rule. 
 
 (6) As in Yate v. Feitiplace, Freem. Ch. 243. 
 (c) See post, pp. 382, 392. 
 
 359
 
 * 375 TREATED AS MONEY PORTIONS. 
 
 By deed a term was limited to secure £4,000 apiece for the 
 younger children of P. for their portions, to be paid them at their 
 respective marriages or ages of one- and twenty years, which 
 should first happen; and for paying to them £100 per annum ' 
 maintenance in the meantime. P. died, leaving two 
 [ * 375 ] daughters, one of whom died * under age and unmarried. 
 Held, that she was not entitled to a portion; Pouletv. 
 Poulet, or Pawlet v. Pawlet, 2 Vern. 204, 321; 2 Rep. in Ch. 286; 
 1 Eq. Ca. Ab. 267, PI. 1; 2 Vent. 366; Tud. K C. R. P. 3rd ed. 
 816. 
 
 Charge by a father, under a power in a settlement, of certain 
 sums as portions for his several children, nominatim, to be paid 
 to such children as should have attained twenty-one before his 
 death within one year after his death, and to such child as should 
 be under twenty-one at his death, to be paid to his sons at twenty- 
 one, and to his daughters at twenty-one or marriage, which should 
 first happen, the respective portions to be paid with interest at 
 £5 per cent, from his death to the payment thereof. Held, that 
 a daughter who survived the father and died under twenty-one 
 took nothing; Boycot v. Cotton, 1 Atk. 552. 
 
 Appointment by ivill under a power m a deed and e contra. — 
 As to an appointment of portions by will under a power in a deed, 
 see Burgess v. Mawbey, 10 Ves. 319; Aston v. Aston, 2 Vern. 452; 
 and as to the converse case, see Remnant v. Hood, 27 Bea. at pp. 
 79, 80. 
 
 Observation (2), ante, p. 372, on Rule 143, applies also to the 
 present Rule. 
 
 Observation on Rules 143, 144. — Where money charged on 
 land is treated as provision out of personalty. — The context, or 
 circumstances, may show that a sum charged on land is to be 
 treated as a provision made of money, and then the case falls 
 within the rules as to portions not charged on land, post. 
 
 Examples of portions thus treated are Reilly v. Fitzgerald, 
 Dru. tern. Sug. 122 (see 159); S. C, 6 Ir. Eq. R, 335 (see 351); 
 Re Dennis, 6 Ir. Ch. R. 422; Re Howard's Trusts, 7 Ir. Ch. R. 
 344; Teynham v. Webb, 2 Ves. Sen. 198. 
 
 . Rule 145.*^ — Payment postponed for convenience of estate. — 
 
 ^® A difference observable in the apparent motive for the postponement of 
 the time of payment of a portion charged on land, has gi'ten rise to an ex- 
 tensive exception to the general rule of law laid down in Rule 144 ante. When 
 the payment of the portion is postponed fnmi i-egard to the circumstances of 
 the legatee the rule there laid down applies; Ijut where the postponement is 
 inferred to be out of regard to the circumstances of the estate, the portion 
 is held to be vested immediately. Perry v. Ha,le, 44 N. H. 363; Maxwell 
 V. McClintock, 10 Pa. St. 237. 
 
 360
 
 PAYMENT POSTPONED FOR CONVENIENCE. * 377 
 
 "Where the actual raising and payment of a portion 
 charged on land is directed to be * postponed until the [ *37G ] 
 happening of a specified event having reference to the 
 circumstances of the estate out of which it is made payable, such 
 direction does not aflfect the question of vesting, which is not 
 thereby postponed till the time of actual payment; Tud. L. C. R. 
 P. 857; Fearne, C. R. 552, Butler's note; 2 Spenee, Eq. Jur. 39G; 
 2 P. Wms. 612, note; Sugd. Law of Prop. 143; per Lord Hard- 
 wicke, C, Loivther v. Condon, 2 Atk. 128 and 131; and see 1 
 Jarm. AVills (4th ed.), 834 et seq. 
 
 This Rule must be taken in connection with the two preceding 
 Rules, so that, if portions are made payable after the death of 
 the tenant for life, then whether they are or are not made pay- 
 able at twenty-one, no child will take who does not attain twenty- 
 one, but every child will take who attains twenty-one whether he 
 does so in the lifetime of the tenant for life or not. 
 
 See this Rule distinguished from the preceding Rule in Fearne, 
 C. R., 552 et seq. in notes. 
 
 In Smith v. Partridge, Ambl. 266, by a post-nuptial settlement, 
 the estate was limited to A. and B., successively for life, remain- 
 der for a term of years upon trust within one year after the de- 
 cease of A. and B. to raise £850 for a named daughter, R., her 
 executors, administrators, and assigns. She was thirty years old 
 at the date of the settlement, and died afterwards in A.'s life- 
 time. Clarke, M. R., said: — "The representatives are entitled; 
 the present is not like the cases where portions are charged on 
 land, payable at twenty-one or marriage, and the children die bo 
 fore either of those events happens: the portion sinks because by 
 their death they could not want it. Here the daughter was of 
 age, and had occasion, for the money. The postponing the pay- 
 ment was merely for the convenience of the father and mother 
 and the estate." 
 
 '•It is a well established rule as to portions, or lega- 
 cies, * payable out of land, that if the payment be post- [ * 377 ] 
 poned until the happening of an event not referable to 
 the person of the party to be benefited, but to the circumstances 
 of the estate out of which the portion or legacy is to be paid, 
 such as the death of a tenant for life, then it will be raisable 
 after the death of the tenant for life, although the term out of 
 which it was to bo raised had not arisen in consequence of the 
 party to be benefited not having been in esse at the time of the 
 death of the tenant for life, as in Emjjeror V. Rolfe, 1 Ves. Sen. 
 208, Cholmondfdey v. Meyrick, 1 Ed. 77, 85, and many other 
 cases; "per Lord Cottenham, C, Evans v. Scott, 1 H. L. C. at p. 
 57 See the judgment of Turner. L. J., in Remnant v. Hood, 2 
 
 3G1
 
 * 378 PAYMEKT POSTPONED FOR CONVENIENCE. 
 
 De G. F. & J. 396 (on appeal from 27 Beav. 74). at pp. 410, 
 411. 
 
 Examples. — Davies v. Huguenin, 1 H. & M. 730; Powis v. 
 Burclett, 9 Ves. 428; Emperor v. Rolfe, 1 Ves. Sen. 208; Cliol- 
 moyideley v. Meyrick, 1 Ed. 77; Verney v. Verney, 2 Ed. 26; But- 
 ler V. Vuncomb, 1 P. Wms. 448; PitfieWs Case, 2 P. Wms. 513. 
 
 Observation. ^-Payment postponed for convemence of personal 
 trust fimd.— This Rule seems to apply also to portions out of a 
 fund of personalty; in Howard's Trusts, 7 Ir. Ch. R. at 352-3 
 (citing 1 Jarmau on Wills, 840 (4th ed.), andper Wigram, V.-C, 
 Packham v. Gregory, 4 Hare, 397, as to cases in which payment 
 is postponed only to let in some prior interest), it is said, " The 
 principle stated by Mr. Jarman would be more strongly applica- 
 ble to a case like the present, of portions created by settlement." 
 See also per Grant, M. R., Balmain v. Shore, 9 Ves. at p. 507. 
 
 Exceptional case. — A., the father, and B., the eldest son, reset- 
 tled an estate to the use of A. for life, remainder to trustees for 
 
 a term to raise £1,100 to be paid to 'C, the second son, 
 [ * 378 ] within six years after A.'s * death, or as soon after as 
 
 the same could be raised, and in the meantime interest 
 from A.'s death for maintenance. C. attained twenty-one, and 
 died in A.'s lifetime. Held, that he took nothing. Stress was 
 laid on the fact that the gift for maintenance necessarily sup- 
 posed him alive at his father's death, and that, the interest being 
 contingent, the principal must also be contingent; Bradley v. 
 Poivell, Ca. t. Talb. 193. This case was disapproved of by Lord 
 Hardwicke, C, in Tunstall v. Bracken, Amb. 170. 
 
 Miscellaneous Examples of Portions raisable on a Con- 
 tingency.— Reversionary term in marriage settlement (in re- 
 mainder after the estates tail) in trust in case there should be no 
 son, or if there should be a son, and he should die under twenty- 
 one, and without issue, then, by sale or rents and profits, in case 
 the term should have taken effect in possession, to raise 6,000/. 
 for the daughter or daughters, payable at sixteen, if either the 
 husband or wife should be then dead; but if both should then be 
 living, then within six calendar months after the death of either, 
 with interest from the death of husband and wife, or either; and 
 in case either of the daughters should die before the portion be- 
 came payable, her share to go to the survivors; proviso that if no 
 daughter should be alive at the time of the failure of issue male, 
 the portions should sink. There was no son, and only one daugh- 
 ter, who attained sixteen, and died, living both parents. The 
 362
 
 PORTIONS KAISABLE ON CONTINGENCY. * 380 
 
 wife subsequently died without a son. Held, that, as there was 
 a possibility of the birth of a son at any time till th > death of 
 the wife, there was not a '• failure of issue male " at liie time of 
 the daughter's death, but the proviso was still operrtive at the 
 subsequent death of the wife, and consequently the daiij^hter was 
 not entitled to a portion: Gordon v. Raynes, 3 P. Wms. 134. 
 
 Kealty settled on husband and wife in succession, remainder! 
 for a term on trust, if no issue male, or, if there were such, and 
 they all died without issue male before twenty-one, and thert^ 
 should be one or more daughter or daughters, then to 
 raise portions; Proviso, * that if there should be a son [ * 379 ] 
 that should have issue male or attain twenty- one, the 
 term should cease. A son attained twenty-one, and died in his 
 father's lifetime. Held, that portions were not raisable: Wors- 
 leij V. Granville, 2 Ves. Sen. 331. 
 
 Portions out of " Rents and Profits,'''' &c. 
 
 Rule 146. — Portions out of ''■rents and profits.^'' — A trust to 
 raise portions out of the '' rents and profits " of land charges 
 them on the corpus, unless the context shows that annual rents 
 and profits alone are meant. Peachey on Settlemefits, 430. 
 
 The Rule extends to every case where a gross sum is charged, 
 either by deed or will, on '' rents and profits: " see the cases col- 
 lected, 2 Jarman on Wills, 4th ed., 609. 
 
 " In general, where money is directed to be raised by rents and 
 profits, unless there are other words to restrain the meaning, and 
 to confine them to the receipt of the rents and profits as they 
 accrue, the Court, in order to obtain the end which the party in- 
 tended by raising the money, has, by the liberal construction of 
 these words, taken them to amount to a direction to sell; " per 
 Lord Hardwicke, C, Green v. Belchier, 1 Atk. 505. 
 
 " If a term was created to raise [a charge] by the rents and 
 profits, I should say it might be done by sale or mortgage; " per 
 Lord Thurlow, C, Shreirsbury v. Shrewsbury, 1 Ves. Juu. at p. 234. 
 
 " The rule is that Avhere there is a trust to pay, or to raise and 
 pay, or to raise or pay, gross sums out of rents and jirofits, thut 
 means out of the estate; and you may sell it or mortgage it for 
 the purpose of paying the gross sum, the reason being that the 
 sum is to be paid at once, and the rents and profits are not suffi- 
 cient for that purpose; " per Jessel, M. R., Metcalfe v. Hutchin- 
 son, 1 Ch. D. at p. 594. 
 
 See also the note (70) in 2 Ves. Jun. 480. 
 
 * Examples. — Charged on corpus. — Wluire the par- [ * 380 ] 
 tions icere held to be charged on the corpus. 
 
 303
 
 * 381 PORTION'S OUT OF RENTS AND PROFITS. 
 
 Trustees directed to pay portions on fixed days out of the rents 
 and profits, which the rents and profits would not allow: Held, 
 that they might sell; Backhouse v. Middleton, 1 Ca. Ch. 173; see 
 this case stated by Jessel, M. R.,in Metcalfe v. Hutchinson, 1 Ch. 
 D., at p. 593. 
 
 Charge of portion, trustees to take the rents and profits of the 
 land till the same shall be raised; sale decreed: Sheldon v. Dor- 
 mer, 2 Vern. 310; see also Warburton\. Warburton, 2 Vern. 420. 
 
 Trast of a term to raise portions "by and out of the rents, 
 issues, and profits of the premises as well by leasing," &c. : no 
 time fixed for payment: a mortgage for the portions upheld: Ivy 
 V. Gilbert, Pre. Ch. 583; S. C, 2 P. Wms. 13; (disapproved of in 
 Mills V. Baiiks, 3 P. Wms. 1). 
 
 Trusts of term to raise portions out of rents and profits: 
 Hfld, that they might be raised by sale or mortgage: Trafford v. 
 Ashton, 1 P. Wms. 415. 
 
 All the prior cases are discussed in Allan v. Backhouse, 2 V. & 
 B. 65, a will case. 
 
 As to rate of interest on portions, see Balfour v. Cooper, 23 Ch. 
 D. 472. 
 
 Examples. — Not charged on corpus. — Where the portions ivere 
 held not to be charged on the corpus. 
 
 Context. — The context may show that annual rents and profits 
 only are intended: Mills v. Banks, 3 P. Wms. 1 (see pp. 7, 8); 
 and Wilson v. Halliley, 1 Rus. & My. 590; Metcalfe v. Hutchinson, 
 1 Ch. D. 591 (both cases on wills); see 2 Jarm. on Wills, 613; 
 Peachey on Settlements, 433, who cites Evelyn v. Evelyn, 2 P. 
 Wms. 659; Okeden v. Okeden, 1 Atk. 550. 
 
 Annuities. 
 
 Annuities, &c., out of "rents and profits.''^ — An annuity, or pe- 
 riodical payment, charged on the rents and profits is charged on 
 the corpus: see Cupit v. Jackson, 12 Pri. 721, at p. 733; White v. 
 
 James, 26 Beav. 191; Hall v. Hurt, 2 J. & H. 76; Scot- 
 [ *381 ] tish Widows' * Fund v. Craig, 20 Ch. D. 208, (where 
 
 the earlier cases are discussed, and Graves v. Hicks, 11 
 Sim. 551, is distinguished) ; unless the context shows that it is to 
 be payable out of income only: Clifford v. Arundell, 27 Beav. 
 209; 1 De G. F. & J. 307 (stated ante, p. 175). 
 
 Portions out of rents and j^i'ofifs only. — A direction that por- 
 tions to be raised out of rents and profits only, requires that the 
 appropriation of the rents and profits should commence as soon 
 as they become applicable for that purpose : and it is difficult to 
 conceive (in the absence of expressed intentions to the contrary) 
 how it is possible that any of the portions should remain in con- 
 tingency after the appropriation has once begun. It follows : 
 364
 
 PORTIONS NOT CHARGED ON LAND. * 3S2 
 
 Rule 147. — Vesting of portions payable out of rents and 
 profits only. — Where portions are payable out o£ annual rents and 
 profits only, as distinguished from corpus, and no time is mei.- 
 tioned for vesting, every child who is alive at the time when tbe 
 rents and profits begin to be applicable for that purpose takes a 
 vested interest. 
 
 Example. — By marriage settlement lands were limited in strict 
 settlement, proviso that if there should be no issue male, and 
 there should be one or more daughters living at the husbaad's 
 death, the trustees should stand seised to the intent that such 
 daughter and daughters should receive 10,000/. out of the rents, 
 revenues, and profits, together with lOOZ. per anuuQi apiece for 
 maintenance, from the death of the father till payment of the 
 10,000/. The husband died without male issue, leaving a dangliter 
 who died under twenty-one, without having been married : Held, 
 that she was entitled to her portion; Riveras v. Derby, 2 Vera. 72. 
 See, to the same effect, Evelyn v. Evelyn, 2 P. Wms. 659, 671 : s(^e 
 also Coicper v. Scott, 3 P. Wms. 119 (a will case). It should be 
 observed that the decision in Rivers v. Derby, as reported in Ver- 
 non, was put not on the ground of the portion being 
 raisable out of the rents and profits, but only *on the [*3S2 ] 
 circumstance that no time was appointed for payment; 
 but Jekyll, M. R., in his judgment in Evelyn v. Evelyn, appears to 
 have considered that the vesting of the portion in Rivers v. Derby, 
 depended upon its being payable out of rents and profits. 
 
 Observation. — When estate is discharged. - - It might be 
 thought that, where the portions are payable out of rents and 
 profits only, the estate would be discharged as soon as the rents 
 and profits amounted to a sum sufficient to discharge the portions, 
 whether they were actually paid or not; but this is not the case, 
 see ante, p. 246. 
 
 By a marriage settlement a term of years was vested in trustees, 
 in trust to raise out of the rents and profits, by annual payments 
 of 500/. in each year, but not otherwise, the sum of 3,000/. for 
 portions for younger children : Held, that the clause did not 
 create a charge for six years only from the date of the deed, and 
 that, no sum having been raised, the estate was not discharged at 
 the end of the six years, although the rents during that time were 
 amply sufficient to' have satisfied the charge : Re Forster, It. R. 
 4 Eq. 152. 
 
 (2.) Portions not Charged on Land. 
 
 '■'■Debitum in prmsenti, solvendum in futuro.^' — A legacy (not 
 charged on land, 2 De G. F. & J. 410) to A., payable at a future 
 time or event certain, is held by tbe law of England (following 
 
 365
 
 * 38J: PORTIONS NOT CHARGED ON LAND. 
 
 the Civil Law; see Fearne, C. K, 552, note (gr); 2 Spence, Eq. 
 Jur. 395; 2 P. AVms. 612, note; 2 Ves. Sen. 262; 5 Ves. 513) to 
 be debitum in prcesenti, solvendum in futuro: i.e. the payment 
 only, not the vesting, is deferred; see per Kindersley, V.-C, 
 Parker v. Hodgson, 1 Dr. & Sm. 573; and it would seem that the 
 same doctrine applies at common law to a promise or covenant 
 for payment (Co. Lit. 2926; Goss v. Nelson, 1 Burr. 226) ;^ and in 
 equity to trusts for payment [Combe v. Combe,^ 2 Atk. 185). But 
 under a promise to pay, or trust for payment, to A. when, or if, an 
 uncertain event happens, A.'s interest is contingent, 
 [*383] *both at. common law (Roberts v. Peake, 1 Burr. 323), 
 and in equity {Camxjbell v. Prescott, 15 Ves. 500). 
 
 Whether any distinction between ivills and settlements: — As a 
 general rule, the cases seem to make no distinction between wills 
 and settlements in respect of the vesting of personalty portions, 
 with the exceptions mentioned in the observation at p. 393, to 
 rule 149, and at p. 402. But it is sometimes necessary to con- 
 sider the different circumstances of a testator and a settlor, or as 
 it has been called " the different characters of a will and settle- 
 ment," see per Turner, V.-C, in Farrer v. Barker, 9 Ha. at p. 744. 
 
 The courts must have been familiar with questions arising on 
 wills for a considerable period before settlements inter vivos of 
 personalty were introduced; and it seems probable that the Court 
 of Chancery, when called upon to deal with instruments of the 
 latter class, adopted or assumed the applicability of, the rules 
 which it had already received from the Civil Law (see Prowse v. 
 Abingdon, 1 Atk. 485, cited, ante, p. 373), as to the vesting of 
 legacies; and the obvious distinction between burdening the com- 
 mon law inheritance with a charge for younger children and de- 
 claring trusts of an existing fund of personalty is in favour of 
 immediate vesting in the latter case. 
 
 It is difficult to find conclusive authority that the civil law doc- 
 trine of the immediate vesting of personal legacies payable at a 
 future time applies to trusts of personalty under settlements, for 
 in each of the cases cited below there seem to have been special 
 words; it is, however, submitted that the following Kule is, on 
 the whole, established: — 
 
 Rule 148.— To all children payable at 21, cfec— Where, in a 
 settlement of personal property there is a trust for the children 
 of A., payable at twenty-one, or being daughters on marriage, 
 then, if there are no further words, every child becomes entitled 
 
 to a vested interest at birth. 
 [ * 384 ] It follows that if a child dies an infant, and * being a 
 
 daughter without having been married, and whether in 
 the lifetime of the parents, or of one of them, or not, the ad- 
 ministrator of such child becomes entitled to its portion. 
 Z66
 
 VESTING OF PERSONALTY PORTIONS. * 385 
 
 Payment postponed for convenience.—SeQ Rule 145, p. 375, and 
 Observation, ante, p. 3/7, as to the postponement of payment for 
 the convenience of the estate. 
 
 In order to establish this rule it is necessary to show (1) that 
 a gift to children of portions out of personalty (as distinguished 
 from portions charged on land) vests at birth, and (2) that the 
 vesting is not affected by the payment of the portions being post- 
 poned till twenty-one or marriage. 
 
 The authorities in support of this rule, some of which are 
 stated at length below, are Gordon v. Raynes, 3 P. Wms. at 138; 
 per AVilles, C. J., Harvey v. Aston, 1 Atk. at 377; Combe v. Combe, 
 2 Atk. 185; Vanderzee v. Adorn, 4 Ves. 770 at 784, 787; Jopp v. 
 Wood, 28 Beav. 53; S. C. 29 L. J. N. S. Ch. 406; G Jur. N. S. 
 20; and on app., 2 De G. J. & S. 333; 34 L. J. N. S. Ch. 025; 
 11 Jur. N. S. 833; Mostyn v. Mostyn, 1 Coll. at p. 107; Mount v. 
 Mount, 13 Beav. 333: a dictum per Turner, L. J., Currie v. Lar- 
 kins, 4 De G. J. & S. at p. 255; Reilly v. Fitzgerald, Dru. tern. 
 Sug. 122; S. C. 6 Ir. Eq. E. 335; Hynes v. liedington, 1 Jo. & 
 Lat. 589; S. C. 7 Ir. Eq. E. 405; Re Orme, 1 Ir. Ch. E. 175; Re 
 Howard's Trusts, 7 Ir. Ch. E. 344. See also per Grant, M. E., 
 Balmain v. Shore, 9 Ves. at p. 507. 
 
 Opiinions contra. — There are opinions contra, that portions out 
 of a money fund are subject to the same rules as portions charged 
 on land, and therefore do not vest until twenty -one or marriage; 
 see 2 Spence, Eq. Jur. 395; Hubert v. Parsons, 2 Ves. Sen. at 
 262, stated post, p. 392; 2 P. Wms. 612, note; and Teynham v. 
 Webb, 2 Ves. Sen. 198, where, though there was a term, yet the 
 L. C. said, at p. 207, the money was not to be considered as 
 charged on land. 
 
 Rule stated. — " Let us now consider the difference between a 
 portion payable out of land, and one payable out of per- 
 sonal * estate: and the difference is, that if money be [*385] 
 given to a man, payable when he comes of age, and he 
 dies before the day of payment, it shall go to his executors; but, 
 if it be a portion to be raised out of lands, it shall sink into the 
 estate, for the benefit of the heir;" per Willep, C. J., Harvey v. 
 Aston, 1 Atk. 377. See ibid., at p. 379, where Lord Haidwicko 
 speaks of " the difference betwen portions out of lands and per- 
 sonal legacies;" the case before him was on a settlement, but, as 
 we have before remarked, the authorities seem to make no distinc 
 tion between deeds and wills as to the present question. 
 
 By maiTiage settlement personalty was vested in trustees upon 
 trust for the wife for life, and within one year next after her do- 
 cease, in default of appointment (which happened) to \my the 
 principal and all arrears of interest to all and every her child and 
 children, part and share alike, and for want of such issue over. 
 Arden, M. E., said (see pp. 784 and 787) that it was " a vested 
 interest in all the children she might ever have upon their re- 
 
 3(17
 
 * 386 PORTIONS NOT CHARGED ON LAND. 
 
 spective births, to be divested by the exercise of the power of ap- 
 pointmeat." (The question for (iecision was whether a daughter 
 who attained twenty one, but died before her mother, was entitled 
 to share): Vanderzee v. Acloin, 4 Ves. 771. 
 
 " With respect to a mon% fund, where no time or age is ap- 
 pointed for the vesting of the shares, the children in general take 
 immediate absolute interests in their portions, so as to pass them 
 to their personal representatives, although they die minors and 
 unmarried;" Re Howard's Trusts, 7 Ir. Ch. R. 350. 
 
 " The terms of the settlement are very ambiguous 
 
 I am of opinion that the child did take a vested interest at the 
 moment of its birth. . . . The grounds of my opinion are these — 
 I think the recital in the settlement .... shows that this 
 provision was intended to be and was considered as a money por- 
 tion The parties contemplated the deaths of some of the 
 
 children before twenty-one or marriage, and accordingly they 
 provided for such an event by giving the share of the 
 [ * 386 ] child "* so dying to the survivors, but they only provided 
 for such an event for the benefit of the other children aa 
 a class; they did not go on to make any provision for the event 
 which has happened" [viz., of there being one child only who 
 died an infant]. '"I look upon this, therefore, as a money fund 
 raisable in the event stated; " j)er Sugden, C, Reilly v. Fitzger- 
 ald, 6 Ir. f:q. R. 351; S. C. Dru. 122 (see 157, et seq.). 
 
 Examples of the Rule. — In a marriage settlement the trustees 
 were (on the death of the survivor of husband and wife) to 
 " transfer, assign, and make over 10,000/. to and between or 
 amongst all and every the child ctnd children .... his, her, or 
 their respective executors, administrators, or assigns, equally to 
 be divided," &c., "if one, then to that one alone." There was a 
 provision that the shares of such of the children as should be 
 sons, if minors at the decease of the surviving parent, were to be 
 paid, transferred, assigned, and made over to them at twenty-one 
 (and of daughters, at twenty-one or marriage), with the interim 
 interest by way of maintenance; Romilly, M. R., said (28 Beav. 
 57: — "Here is a direction that the shares vested while minors 
 should be paid when they attained twenty-one years: how can I 
 get over those express and distinct words of the settlement, and 
 say that the shares of the children did not vest until they at- 
 tained twenty-one? " There was a gift over in the event of there 
 being no children, or if they should all happen to die before be- 
 coming "entitled." Four children survived their parents and 
 attained twenty-one, and two (a son and a daughter), died in 
 early infancy, living the parents, so that the gift over did not 
 arise. The M. R. said (28 Beav. 58): "The Court will exercise 
 considerable violence in qualifying the terms of a settlement for 
 the purpose of making the fund vest as early as possible, so as to 
 368
 
 VESTING OF PEKSONALTV PORTIONS. * 3S8 
 
 prevent the children from being exchided; but I never yet heard 
 that the Court had violated or forced the terms of any settle- 
 ment in order to prevent or postpone a vesting [till 
 twenty - one * or survivorship (a)]; it has endea- [ * 387 ] 
 voured to make it vest at an earlier period than twenty - 
 one, but never at a later." On the appeal, Lord Cranworth, C, 
 said (2 De G. J. & S. at 328):— "If the sentence had ended with 
 its lirst member, there could be no doubt that every child at its 
 birth obtained a vested interest, liable to be divested pro tanto 
 on the birth of other children; but the argument is that this ob- 
 vious construction is modified by the gift over. According to the 
 
 original clause, every child at its birth became entitled 
 
 But there is a gift over in case of the death of all the children 
 before they should become ' entitled ' to their respective shares. 
 This, it was argued, shows that it could not have been intended 
 to confer any indefeasible interest on a child at its birth — for 
 how could a child die before it should become entitled, if it be- 
 came absolutely entitled at the moment of its birth? The whole 
 case depends on our putting a proper interpretation on the word 
 ' entitled.' That word may, without any violence to language, 
 mean entitled in interest, or entitled in possession — that is, en- 
 titled to payment. The M. R. considered the latter to be, in this 
 
 case, the proper construction, and I concur with him 
 
 I cannot adopt the reasoning of the appellants,' by which they 
 would fix arbitrarily on the majority of every child as the time 
 at which its share was to vest." And it was accordingly held that 
 the representatives of the infants took shares; Jopp v. Wood, 28 
 Beav. 53; on app. 2 De G. F. & J. 323; S. C. 29 L. J. (N. S.) 
 Ch. 406; 6 Jur. (N. S.) 20, and on app. 34 L. J. (N. S.) Ch. 625; 
 llJur. (N. S.) 833. 
 
 In Hynes v. Redington, 1 Jo. & Lat. 589, S. C. 7 Ir. Eq. R. 405, 
 the fund was by articles (which, however, were not executory, in 
 the sense of being incomplete) agreed to be vested in trustees in 
 trust for all the younger children, to be paid in such shares and 
 at such times, &c., as the father should appoint, and in default to 
 be paid to such children equally; the shares of sons to be paid 
 at twenty-one, and of daughters at twenty-one or mar- 
 riage, and in *tho meantime, "until their portions [*■' 388 ] 
 should become payable," to apply any sums not exceed- 
 ing the interest of their said shares respectively for or towards 
 their maintenance." The father made no appointment. There 
 were two daughters and one son, who all survived both parents, 
 but subsequently one of the daughters died under ago and un- 
 married. Sugden, C, said (1 Jo. & Lat. 604) :— " It was con- 
 tended that the surviving daughter took the whole fund by sur- 
 vivorship. There is no such gift expressed in the settlement; if 
 
 (a) So in llic other Keiwrts. 
 
 24 INTEUPKETATION OV nKKUS. 369
 
 *389 PORTIONS NOT CHARGED ON LAND. 
 
 she takes the whole, it must be by implication or construction, 
 not by direct gift. There is no gift of the whole fund to an only 
 child attaining twenty-one years, and I find no authority which 
 authorizes me, upon any supposed rule applying to gifts to a 
 class, to hold that the only surviving (6) child will take the whole 
 fund, without a direction in the settlement for that purpose. . . . 
 The gift over to the son is in default of issue of the marriage " 
 (which did not happen). "The [ultimate] gift, over to the per- 
 sonal representatives of the husband shows that the fund was not 
 to go over unless there was an absolute failure of children." And 
 further (in S. C. 7 Ir. Eq. K at 411, 41'2) :— " The gift over satis- 
 fies me that the fund was not to go over unless there was an ab- 
 solute default of other children. . . . The intention may have 
 been to give the the fund to the children who attained twenty- 
 one, but I cannot alter the plain legal construction of the instru- 
 ment. It is a trust for all the children. . . They took vested 
 interests as they were born, although their shares were not to be 
 paid till a particular age, with maintenance in the meantime. It 
 would be desirable in a well drawn settlement that it should con- 
 tain clauses of survivorship and accruer in case the children died 
 under the age when the portions are payable. But there is no 
 such clause in this settlement, and I cannot introduce one." 
 
 In Re Orrne, 1 Ir. Ch. R. 175, a fund was settled in trust, 
 [ * 389 ] after the death of A., to transfer it, and all the * interest, 
 &c., unto and amongst all and every the child or chil- 
 dren of the marriage, or the issue of any such child or children 
 who might happen to be then dead leaving issue, or to any one or 
 more of such children, or issue of such deceased children, &c., at 
 such ages, times, and in such shares, if more than one, and with 
 such maintenance in the meantime and under and subject to such 
 conditions, &c., and limitations over (such limitations over being 
 for the benefit of some one of such children or issue) as A. by his 
 will, &c., should appoint, and in default of appointment to pay 
 the fund between all the children (if more than one) of the mar- 
 riage, and the issue of any children who should then be dead 
 leaving issue; and if but one, to such one child; the said fund to 
 be paid to sons a,t twenty-one and to daughters at twenty-one or 
 days of marriage, ia case such ages or days should not take place 
 until after A.'s death; but in case such should happen in his life- 
 time, then such payment should be postponed till after his death. 
 It was declared that tbe shares of the fund and the interest 
 thereof should, subject to the power, vest in sons at twenty-one 
 and in daughters at .twenty-one or marriage, though A. should be 
 alive. A., by will, appointed the fund to the children share and 
 share alike on attaining twenty-one or marriage with consent, and 
 directed that the interest should be, for their maintenance, given 
 
 (6) I.e., only child who survives twenty -one or marriage. 
 
 370
 
 VESTING OF PERSONALTY I'OKTIONS. * 390 
 
 in trust to his "wife until the sons entered professions or attained 
 twenty one, and the daughters attained twenty-one or married 
 with consent. It was Jield, 1st — that the portions were bij the 
 settlement vested before the period of paynieut; 2ud — That the 
 provision in the will as to maintenance was of itself suliicient to 
 vest the portions. And it was said that the express provision as 
 to vesting could not qualify the previous part of the clause, and 
 that the rules as to the vesting of portions and legacies are the 
 same, i.e., as appears from the authority cited (Stephens v. Frost, 
 2 Y. & C. Ex. 302, stated j^ost, p. 394), in cases where there is a 
 gift of the whole interim interest. 
 
 •In Bardonv. Bardon, 16 Ir. Ch. li. 415, a sum of stock 
 was under articles of agreement vested by a father, * A., [ * 390 ] 
 in trustees on trust for A. for life, and after his death as 
 to several specided sums thereof to transfer them respectively to 
 his children, C, N., J., B., E., and three others, in each case " for 
 his (or '"her"') own absolute use and beneht," proviso, that no 
 transfer or payment should be made to the said C, N., J., B., or 
 E., until he or she should attain twenty-live, and also that in case 
 any of them should die before the share to which he or she was 
 entitled under the articles should have been transferred to him or 
 her, the share of the person so dying should accrue to the sur- 
 vivors. A. died; then B. (a datighter) died under twenty-five and 
 unmarried, and at her death J. and E. were under twenty -five. 
 Then E. (a daughter) died under twenty-five and unmarried. The 
 question was whether on E.'s death under twenty-five her accrued 
 share of B.'s portion went over. The M. K held that the por- 
 tions were vested, notwithstanding the proviso as to transfer (see 
 Rule 149, post), and some stress was laid on a direction that the 
 dividends should be applied for maintenance. Therefore, though 
 the gift over to the survivors operated to divest the original por- 
 tions, yet the share accrued under the survivorship clause did not 
 go over on death under twenty-five, but belonged to E.'s next of 
 kin. 
 
 In Combe v. Combe. 2 Atk. 185, under a trust of personalty for 
 such son as should live to attain twenty-one, when and at sKch 
 time as such son should attain twentu -three, a son who attained 
 twenty-one and died under twenty-three, was held to have taken 
 a vested interest at twenty-one. 
 
 See Ijiwrence v. Magrjs, 1 Ed. 453, stated ante, p. 300, where a 
 leasehold was settled on the parents successively for life, with 
 remainder to the children, and it was held a vested remainder in 
 the children. 
 
 Context may exclude the rule. — The context may show that a 
 portion is not to vest at birth. 
 
 In Mostyn v. Mostyn, 1 Coll. IGl, it was lieM that two 
 
 371
 
 * 392 PORTIONS NOT CHARGED ON LAND. 
 
 [*391] * children who died infants, and without having been 
 married, in their parent's lifetime, were excluded from 
 sharing in the fund. Knight-Bruce, V.-C, said (p. 167) : "The 
 trust is for the children, but to be paid at twenty-one or mar- 
 riage. . . . The words may or may not import a vesting on birth, 
 according to circumstances. You must look at the rest of the 
 settlement to see whether they import mere payment, or vesting. 
 I find, in a subsequent part of the settlement, and in fact very 
 near these words — forming almost part of the same clause — this 
 declaration : — ' that, in case there shall be no such child or chil- 
 dren living at the time of the death of the survivor' (i.e. of the 
 parents) ' or, if such, and they shall all happen to die before their 
 respective ages of twenty-one years or days of marriage,' the fund 
 is to go over. I think that this may be fairly taken as a sufficient in- 
 dication of intention that the age of twenty-one or marriage was 
 to be the period of vesting. Therefore I think that the two chil- 
 dren who died minors (living their parents) without having mar- 
 ried, did not acquire vested interests." The case stood over to 
 make the personal representatives of the infants parties, and was 
 re- argued on their behalf, when the V.-C. said that he adhered to 
 his opinion on the construction of the settlement. 
 
 In Re Dennis, 6 Ir. Ch. R. 422, infant children were held not 
 to be entitled; this was by force of a gift over in case there 
 should be no issue living at the decease of the parents, or if 
 there should be no issue then living, and such issue should die 
 under twenty-one, &c. It was held that either the shares did not 
 vest till twenty-one, &c., or if they did vest at birth, they divested 
 on death under twenty-one, &c. 
 
 See also Re Colleij. L. R. 1 Eq. 496. 
 
 Rule 149. — Trust created by direction to pay on event personal 
 to children. — Where a trust of personalty is created only by a di- 
 rection for payment to or division among the children on an 
 event personal to themselves, the time of vesting is the time ap- 
 pointed for payment or division. 
 
 [ * 392 ] * Rule stated. — " The question in all such cases is 
 whether the period of division is postponed on account 
 of previous interests in the fund, which are given to other per- 
 sons in the meantime, or on account of some qualification at- 
 tached to tlie donee. In the former case, the deferred interest 
 
 vests . . . . on the execution of the settlement ; in 
 
 the latter it is contingent; " 2Je*' Wood, V.-C, Re Theed, 3 K. & 
 J. 379. Accordingly, in that case, the trust being to pay at 
 tiventy-one, it was held that children who did not attain twenty- 
 one took nothing. And, on the other hand, in Vanderzee v. 
 Aclom, 4 Ves. 771, at pp. 784, 786; Re Minor's Tmsts, 28 Beav. 
 372
 
 EFFECT OF GIFT OF INTERIM INTEREST. * 393 
 
 50, there being no qualification of age required, infant children 
 were held entitled. See as to Wills, Hawk. 232; 1 Jarm. (4th 
 ed.) 839 cf seq. See also 2 Spence, Eq. Jur. 309. 
 
 In Hubert v. Parsons, 2 Ves. Sen. 201, a sum of £5,000 was to 
 be raised out of a money fund of £9,000, and to be paid to 
 younger children at twenty-one, with interest for maintenance. 
 If any child died befoi-e its share was payable there was a gift 
 over to the other younger children. There was only one younger 
 child, who died an infant. Held, that the £5,000 was not to be 
 raised for his representatives against the eldest son. The remarks 
 of Lord Hardwicke in this case, taken in connection with the cir- 
 cumstances before him, seem to express an opinion that the Civil 
 Law doctrine as to the immediate vesting of a legacy payable at 
 twenty-one, &c., does not apply to non-testamentary instrnments. 
 But he also remarks that there was no gift except in the direction 
 to pay ("The power of raising and paying is directed and lim- 
 ited by the same words. There are no words to create any vest- 
 ing, except those for raising and paying, which are at twenty- 
 one. Supposing it had been in a covenant, and the child had 
 died before twenty-one, it could never have become due"); and 
 on this ground, and also on the force of the gift over, the decision 
 might well be rested. 
 
 And in Richardson v. Goodman (htfra), it was remarked that 
 Hubert v. Parsons, though dealing with a fund of per- 
 sonalty, was analogous to cases of portions out of * land, [ * 393 ] 
 as the settlement distinguished between the elder son 
 and younger children. 
 
 la Richardson v. Goodman, 3 Ir. Jur. 317, a policy on the hus- 
 band's life and a bond were settled upon trust (after the death of 
 the wife) " to pay and apply the principal moneys, &c., among 
 the issue of the marriage," with a power of appointment to the 
 parents, and in default of appointment, to pay and apply the said 
 moneys to and amongst the issue of the marriage in equal shares 
 upon their respectively attaining their respective ages of twenty- 
 one or days of marriage (if daughters). There were four chil- 
 dren, of whom two died under age and intestate in the husband's 
 lifetime. The wife also died in his lifetime. Tbe power of ap- 
 pointment was never exercised. The two sons, J. and W., who 
 siirvive the husband, were still infants. Held, that, as the whole 
 intent of the instrument " must, primd facie at least, be considered 
 as intended to be for the purpose of raising portions for the issue 
 to be given to the sons when they arrived at twenty-one, or to 
 daughters at twenty-one or marriage," and as the language was 
 ambiguous, tbe Court ought not to give vested interests to in- 
 fants. 
 
 In Caynpbell v. Prescott, 15 Ves. 500, there was a trust for ac- 
 cumulation until the settlor's grandchildren then livilig, or to bo 
 born, respectively attained twenty one, and on their respectively 
 
 373
 
 * 394 DIVESTING GIFT OVER. 
 
 attaining twenty-one " upon trust to pay unto such grandchildren 
 respectively as he, she, and they should respectively attain unto 
 such age, his, her and their respective shares and proportions not 
 only " of the fund but also of the interim interest. Held, that a 
 grandchild who died under twenty-one took nothing. 
 
 Observation. — Gift of interim interest. — In cases falling under 
 this Rule, a gift of the whole interim interest io, or a direction to 
 apply the whole interim interest for maintenance of, the children 
 appears not to accelerate the vesting; Jojop v. Wood, 28 Beav. 53; 
 on app. 2 De G. F. & Jo. 323 (stated ante, p. 387); Hubert v. 
 Parsons, 2 Ves. Sen. 264 (cited atite, p. 392); contra ia 
 [*394] the case of a legacy (Hawkins on * Wills, 22/). The 
 only case where the vesting was accelerated by a gift of 
 interest for maintenance is Re Orme, 1 Ir. Ch. E. 175: cited 
 supra, p. 388: but this case appears to have been decided as to 
 this point on the authority of Stejyhens v. Frost, 2 Y. & C. Ex. 
 302, and will cases. In Stephens v. Frost the property (lease- 
 hold) was vested in trustees "in trust for A. till he should attain 
 the age of twenty-one years, and in the meantime in trust to col- 
 lect the rents / . . and . . . apply them towards the mainte- 
 nance . . of A. during his minority, and upon A. attaining his 
 age of twenty-one years upon trust to assign the premises and 
 the accumulations of rents and profits, if any, to A. his executors, 
 or administrators, for the unexpired remainder of the term." It 
 will be observed that the corpus, not the interest only, was given 
 to A. during his minority, so that the case is no authority on the 
 point. See Bardon v. Bardon, 16 Ir. Ch. R. 415, ante, p. 389. 
 
 It is suggested in Hubert v. Parsons, 2 Ves. Sen. at 264, that 
 possibly the direction for payment of the whole income for main- 
 tenance might make the principal vest in a child who survived 
 the tenant for life but died under twenty-one, but there is no de- 
 cision on the point. 
 
 Discretion to apply interim interest for maintenance. — Contin- 
 gent gift of interest. — It is decided that a mere discretionary power 
 to the trustees of the fund to apply all or any part of the income 
 for the maintenance of the persons contingently entitled to the 
 fund; Barnet v. Blake, 2 Dr. & Sim. 117; or a contingent gift of 
 interest, as in Campbell v. Prescott, 15 Ves. 500, supra, p. 393, 
 does not vest the principal. 
 
 Divesting of Portions; Gifts over; Death before Parents. 
 
 Gift over on death before portions ''payable.^'' — Where life in- 
 terests is the settled real estate or personalty are limited to WiQ 
 parents, or to one of them, the portions cannot (in most cases) 
 be actually raised and paid over until the expiration of such prior 
 interests; this is the period of distribution, when the portions be- 
 374
 
 CLASSIFICATIOX OF EXPRESSIONS AS TO SURVIVORSHIP. * 396 
 
 come "payable" in the ordinary sense. An important question, 
 therefore, arises where a child attains twenty-one or mar- 
 riage (or other the time of vesting), and then *dies, [ * 395 ] 
 living a tenant for life, and there are provisions in the 
 settlement which seem to deprive such a child of its portion; e. 
 g., where there is a gift over of the share of a child dying before 
 its portion becomes " payable," " assignable," or "transferable." 
 These, and similar expressions (c), might refer either to age or 
 mai-riage — i. <?., the time of vesting, or to the time of actual pay- 
 ment — i. e., the period of distribution. "The words 'payable, 
 assignable, or transferable,' have different senses according'to the 
 different clauses of the settlement to which they refer. ^Vith 
 reference to the right or capacity of the children, the sense is, *at 
 twenty-one or marriage.' But then the enjoyment of the persons 
 entitled for life is not to be broken in upon. It is therefore pro- 
 vided that the right, which exists for every other purpose, shall 
 not be exercised to their detriment. With reference to that in- 
 terest, the sense is 'not till the death of the tenant for life.' But 
 it is only with reference to that, that the preceding declaration is 
 at all qualified; and as against every one but the tenant for life, 
 
 the children have a right to say it remains unqualified 
 
 As between themselves, the time of payment must be taken to be 
 unaltered;" per Grant, M. R., Schenck v. Legh, 9 Ves. 310, cited 
 with approval by Plumer, M. R., ( Walker v. Main, 1 Jac. & W. 
 at p. 8) who adds: " Tliis construction is agreeable to the gen- 
 eral leaning of the Courts in favour of vesting. The nature of 
 the fund here makes no difference; for as after the death of the 
 tenant for life the whole is to be distributed, it is indifferent 
 whether it arises from real or personal estate." 
 
 " As soon as these clauses came forward, in Emi^eror v. Kolfe 
 (1 Ves. Sen. 208), Lord Hardwicke put a just construction uj)on 
 them; and he referred the word 'payable ' to the time in respect 
 of the quality of the child, distinguishing between that 
 and the time when ex * necessitate the money was to be [ * o9() ] 
 de facto raised: " per Lord Loughborough, C, Willis v. 
 . Willis. 3 Ves. at 54. 
 
 Wills. — This construction applies to "Wills; Hallifax y. Wilson, 
 16 Ves. 168; see Hawkins on Wills, 218. 
 
 Survivorship. — Frequently there are, in the description of the 
 class of children who are to take, or in other provisions of the 
 settlement, expression referring to survivorship. Many such cases 
 may be classified as follows: — 
 
 First: — To such children as survive, payable at 21, d:c. — Where 
 the primary gift is to such children as survive the parent, pay- 
 able at twenty-one, &c. In this case, if there are no further 
 
 (c) " Before they beoome entitled to their sliarcs:" Jnpp v. ]\'()o>l, 28 I'.oiiv. 
 53; 2 De G. J. &. S. 32:5; " Bofore heiiij^ oiilitlccl in possession :" Jiv VuUit, 
 21 L. J. Ch. 281; or ''Eutitltd to iniymeut;" lie \yillHtm.s, 12 He:iv. 317. 
 
 375
 
 *397 INDEFEASIBLE VESTING AT 21. 
 
 words, only those children who survive take; see per Shadwell, 
 Y.-C, Fry v. Sherborne, 3 Sim. at 254; Lewin on Trusts, 364; so 
 that it is impossible to make a provision for a child on its mar- 
 riage in the parents' lifetime. See Bythesea v. Bythesea (a will 
 case), 23 L. J. N. S. Ch. 1004, where Turner, L. J., remarked 
 that "in all the previous cases the settlement contained some*pro- 
 vision inconsistent with the notion that the gift was to depend on 
 survivorship." 
 
 Second : — To all children payable at 21, (fee, but contmgent on 
 some child surviving. — Where, though the provisions are for all 
 the children, payable at twenty-one, &c., yet they are made con- 
 tingent on some child surviving the parents, or a parent. In this 
 case, although no child can take unless some child survives the 
 parents or parent, yet, if any child survives, all the children are 
 admitted to share; in other words, the contingency does not form 
 part of the description of the class; King v. Hake, 9 Ves. 438; 
 Mostyn v. Mostyn, 1 Coll. 161, see 167; per Wood, V.-C, Swalloio 
 V. Binns, 1 K. & J. 426-8; Be Orlebar, L. R. 20 Eq. 711; but 
 even if any child survives, the same inconvenience will arise as in 
 cases under the first head. See, per Lord Cottenham, C, 3 My. 
 & Cr. 287-8. 
 
 But, though clear and unambiguous words must have their 
 proper efPect (3 Sim. 254), yet, in favour of the indefeasible vest- 
 ing of portions in children who live to require a provision, the 
 followino- rule of construction is established: — 
 
 v^y^i'ttule 150. — Indefeasible vesting at 21, c&c, notivithstanding 
 ^ '^' death before parents. — Where, by a settlement made by 
 
 <>fZff' ' [ * 397 ] a * parent or person in loco parentis (see arite, Chap. 
 XXIV., p. 342), portions are provided, raisable out of 
 land, for the younger children of a marriage, or a fund of per- 
 sonalty is settled on parents for life, and afterwards on their 
 children, and the children's shares are made payable, as to sons 
 at twenty-one, and as to daughters at twenty-one, or marriage 
 (in the usual form), the settlement will, if possible, be so con- 
 strued, that every . child on attaining twenty-one, or, being a 
 daughter, on marriage, shall become indefeasibly entitled to a 
 share, whether it survives the parents or not: Hou-grave v. Carfier, 
 3 V. & B. 79; S. C, G. Coop. 66; Peachey on Settlements, 415; 
 Williams on Settlements, 118; Sugd. Law of Property, 143, 144; 
 Hawkins on Wills, 218; 2 Jarm. Wills (4th ed.), 799; Theobald 
 on Wills, (2nd ed.), 418; LeAvin on Trusts (7th ed.), 361. 
 
 The rule seems to be applicable as well to younger children's 
 376
 
 INDEFEASIBLE VESTING AT 21. * 398 
 
 portions raisable out of the family estate, as to trusts of per- 
 sonalty in favour of children, providing them with portions, in 
 the sense of a parental provision, '* The legal presumption in fa- 
 vour of the vesting in an adult child exists with respect to parental 
 provisions of this description, as well as with respect to the 
 portions of younger children, though, of course, where there is 
 a substantive fund in lieu of a charge, there can be no question 
 as to sinking for the beneht of the estate; " 3 Dav. Conv., p. 432, 
 note. 
 
 " In settlements of this description there are two sets of clauses 
 to be considered: — the clauses of gift to the children, and the 
 clauses of gift over to others upon failure of the children; and the 
 authorities require that both sets of clauses should be clearly and 
 unambiguously expressed" (i. e., in order to exclude the rule); 
 per Leach, V.-C, Perfect v. lA. Curzon, 5 Madd. 445. 
 
 * " Payable.^^ — " The word ' payable ' was construed [ * 398 ] 
 in Emperor v. Rolfe (1 Ves. Sen. 208), to mean ' vested,' 
 for the purpose of insuring the children their rights, and it was 
 held that ' payable ' is substantially the same as ' vested.' It 
 would be a mere parade .of learning to go all through the cases 
 
 in which that rule was cited as settled I am not aware 
 
 that it was ever departed from, except when the settlement 
 contained language so strong as to show that the word was in- 
 tended to be used in a different sense. If the words in the set- 
 tlement were ' before the child shall have actually received the 
 portion,' that would be sufficient to point to actual payment, and 
 to take the case out of the rule. ... It may be shown by the 
 terms of the settlement in any particular case that it is inaj^pli- 
 cable;" per Sullivan, M. R., Wakefield v. Richardson, 13 L. R. 
 (Ir.) 17. See also per May, C. J., ibid., at p. 36:— "It is well es- 
 tablished that the term ''payable,' or ' paid,' when used with re- 
 ference to the portions of children in a settlement, may be pro- 
 perly understood to mean, not the actual receipt of the money 
 fund, but the vesting in interest of such fund in a child, the 
 actual payment being postponed until the death of the parents, 
 who usually have a life interest in the income." 
 
 " When a portion is provided for a son on attaining twenty- 
 one, or for a daughter on attaining that age or being married, and 
 these events happen in the lifetime of the parent, the child, even 
 though it died in the lifetime of the parent, has acquired an ab- 
 solute vested interest in the portion; " per Shadwell, V.-C; Fri/ 
 V. Ld. Sherborne, 3 Sim. 259. 
 
 "In this case the grandfather is providing for his children and 
 grandchildren in such a manner as throughout to place himself, 
 with regard to the grandchildren, in the position of one who is 
 performing a father's part, and ju-oviding .... portions for 
 
 his several grandchildren Whereas, in the c.-iso of c^-di- 
 
 nary instruments, an express estate thereby litnifi-d cannot be ea- 
 
 377
 
 * 400 INDEFEASIBLE VESTING AT 21. 
 
 larged except by necessary inference, yet upon instruments of this 
 description, there is an implication of law arising upon 
 [ * 399 ] * the instrument itself, subject of course to any expres- 
 sion to the contrary, that it is the intention of any per- 
 son who places himself in loco parentis to provide portions for 
 children or grandchildren, as the case may be, at the period when 
 those portions will be wanted, namely, upon their attaining the 
 age of twenty- one or (as is usually provided in the case of 
 daughters), upon their attaining twenty-one or marriage; and 
 that such portions shall then vest, whether the children do or do 
 not survive their joarents. It is thought to be an unnatural sup- 
 position that the circumstance of such children or grandchildren 
 predeceasing their parents should have been contemplated as de- 
 priving them of the whole of the portion intended for their bene- 
 fit;" per Wood, Y.-C, Swalloic \.' Binns, 1 K. & J. 424, 425. 
 
 "If there be any doubt as to the meaning of the words used, 
 the Court must struggle to put such a construction upon the set- 
 tlement as will let in all the children of the marriage who at- 
 tained twenty one years, whether they did so in the lifetime of 
 their parents or not;" per Hall, V. C, Jeyes v. Savage, L. R. 10 
 Ch. 558, n., where the cases are commented on. And see the 
 statement of the principle by Lord Cottenham, C, in Whaiford v. 
 Moore, 3 My. & Cr. at 289, cited with approval by James, L.J., 
 Jeyes v. Savage, ubi supra. 
 
 And see per Stuart, V.-C, Bailie v. Jackson, 1 Sm. & Giff. at 
 p. 177. 
 
 "The case of Emperor v. Rolfe (1 Ves. Sen. 208), originally 
 established the strong and [sed git.] unrebuttable presumption 
 that in marriage settlements the shares of children are intended 
 to become vested when they are wanted; that is to say, in the case 
 of sons at twenty-one, and of daughters at twenty-one or mar- 
 Hage;" per James, V.-C, In re WilmoWs Trusts, L. R. 7 Eq. 
 537; cited with approval in Wakefield v. Richardson, 13 L. R. 
 (Ir.) at p. 28, stated posi, p. 401.' 
 
 The contest is generally between the representatives of a child 
 who attains twenty-one, &c., and dies in the lifetime of 
 [ * 400 ] the tenant for life, on the one hand, and those * children 
 who survive the tenant for life, on the other hand. (See 
 X>er Lord Cranworth and Turner, L. JJ., Bythesea v. Bythesea, 23 
 L. J. Ch. 1004; and per Sugden, C, Kimberly v. Tew, 4 Dr. & 
 War. at 150). The following observations of Jessel, M.R., in 
 Day V. RadcUffe, 3 Ch. D. at 657, must be read with reference to 
 the foregoing remarks: — " There is a series of authorities which 
 establishes that, as regards marriage settlements, and also as re- 
 gards post-nuptial settlements containing a recital of an inten- 
 tion to provide for all the children of a marriage, you are not as 
 a general rule to read the instrument in such a way as to make 
 the provision for a child depend on surviving both parents. But 
 378
 
 INDEFEASIBLE VESTING AT 21. * ^^l 
 
 it is laid down, both by Sir William Grant in lloicgr^^ve v. Car- 
 tier (8 Y. & B. 79), and by Lord Cotteuham in Whatjord v. 
 Moore (3 My. & Cr. 270), that if the settlement clearly and un- 
 equivocally makes the right to a provision depend on survivor- 
 ship, then* the rule does not apply. What is 'clear' and 'un- 
 equivocal ' is very difficult to say. What is clear to one mind 
 mic^ht not be so to another. In the last case on the subject, 
 Jeyes v. Savage (L. R. 10 Ch. 555), the Court of Appeal differed 
 from Vice-Chancellor Hall, and such differences of opinion must 
 alwavs occur in construing ambiguous instruments." (See per 
 Turner, V.-C, Farrer v. Barker, 9 Hare, 748). "But the Lord 
 Justice James i-n that case cites with approval a passage from the 
 iudcrment of Lord Cottenham in Whafford v. Moore (8 My. <fc Cr. 
 270^), the concluding words of which are these:—' The cases upon 
 this subject turn upon such nice distinctions, and are so little re- 
 concilable, that the only reasonable course is to adopt the rule, 
 which has been generally recognized, of leaning in favour of a 
 construction which includes all the children, if the instrument 
 affords fair grounds for doing so; but if not, to give effect to the 
 plain meaning of the words used.' I think that is a sensible 
 rule. When you find fair ground for doing so, then, in marriage 
 settlements and post-nuptial settlements containing a recital of 
 an intention to provide for all the children of a particu- 
 lar person or * particular persons, you are to lean to [*401J 
 that construction which includes them all; but you are 
 not to have recourse to old authorities to overcome the plain 
 meaning of the words used." -.„.-,.., 
 
 In Wakefield v. Richardson, 18 L. R. (Ir.) 1-, (affirmed in the 
 House of Lords sub nom., Wakefield v. Moffet, A\ . N. 18bo, p. 
 108,) by a marriage settlement lands were conveyed upon trust 
 (after successive life estates to the husband and wife) to raise 
 thereout a sum of £8,000, which it was agreed should be divided 
 in equal shares to and among all the children of the marriage, 
 save such as under preceding limitations should succeed to the 
 lands, the shares of sons to be paid to them at twenty-one, of 
 daughters at twenty one or marriage (such marriage li during 
 minority to be with speciiiod consent), with interest for the same 
 byway of maintenance, to be computed from the death of the 
 survivor of the husband and wife, "with benefit of survivorship 
 to the survivor or survivors of such children, if any of such chil- 
 dren shall die before his, her, or their share or shares shall be- 
 come payable, unmarried, and without leaving issue as aforesaid. 
 There were three daughters of the marriage, of whom one died 
 a spinster under twenty-one, and the others could claim no share 
 of the £8,000, inasmuch as they took estates under the settle- 
 ment; and two sons, E. and T., both of whom attained twenty- 
 one, but only E. survived both his parents, 1 . having survived 
 his mother but died a bachelor in his father's lifetime:-7/rW, 
 
 379
 
 * 403 NO REFERENCE TO AGE OR MARRIAGE — WILLS. 
 
 (affirming Sullivan, M. R. ) that both E. and T. acquired inde- 
 feasibly vested shares at twenty- one, and the fund, was accord- 
 ingly divisible in moieties between E. (the plaintiff) and the 
 representatives of T. {In re Wilmotfs Trusts, L. R. 7 Eq. 532, 
 discussed.) Sir E. Sullivan cited the judgment of Jessel, M. R., 
 in Day\. RadcUffe {ante, p. 400) and said: "The later authori- 
 ties on these settlements compel me to hold that in plain and un- 
 equivocal words, the "children who reached the agfi of twenty-one 
 years became entitled to vested interests in their portions, and 
 that, the child who attained the age of twenty-one years, 
 [ *402 J but died before his parents, took a ^vested interest. . , 
 . . I have not found any case in which Emperor v. 
 Rolfe has been invaded, save where the provision is by the plain 
 words of the settlement made dependent on survivorship." 
 
 See also per Lord Cottenham, C., Bouverie v. Bouverie, 2 Phill. 
 at p. 351; S. C. 16 L. J. Ch. 411; 11 Jur. 661. 
 
 When no reference to age or marriag'e. — As to whether the 
 time of attaining twenty-one or of marrying will be held to be 
 the time of indefeasible vesting in cases in which there is no re- 
 ference to these periods in the settlement; see Teynhaiii v. Webb, 
 2 Ves. Sen. at 207; per Turner, L. J., in Remnant v. Hood, 2 De 
 G. F. & J. at pp. 413, 414; and Reilly v. Fitzgerald, Dru. 122; 
 S. C. 6 Ir. Eq. R. 335 (where there was only one child, and the 
 trusts in that event made no reference to time). 
 
 Wills. — That the rule applies to wills, see 3 Dav. Conv. (3rd 
 ed.), p. 437, note, citing {inter al.) Jackson v. Dover, 2 H. & M. 
 209; Dalton v. Hill, 10 W. R. 396; j^er Wood, V.-C, Mendham 
 V. Williams, L. R. 2 Eq., at p. 399; and see Re Knoivles, Nottage 
 v. Buxton, 21 Ch. D. 806. 
 
 As to the weight to be attached to the 'eircumstance that the 
 instrument is a settlement and not a will, see per Turner, V.C., 
 Farrer v. Barker, 9 Ha. at p. 744; per Turner, L. J., Bythesea v, 
 Bythesea, 23 L. J. Ch. 1006; per Kinderslev, V.-C, Re Crosse^s 
 Will, 32 L. J. Ch. 344; S. C, 9 Jur. (N. S.") 429; 1 N. R. 419; 
 and per Wood, V.-C, Suxdlow v. Binns, 1 K. & J. 425, ante, p. 
 399. 
 
 " In cases of settlements, if there is reason to collect, however 
 loose and ambiguous the language may be, that all the children 
 of the marrige were intended to take, then, although there may 
 be words which go to express that those only shall take who shall 
 be living at the death of the parent, the Court holds that all the 
 children who attained the age of twenty-one, although they died 
 in the lifetime of the parent, shall take. A gift by will differs 
 from the case of a trust declared by a settlement, be- 
 [ * 403 ] cause in the former there is no supposition that any *per 
 sons can be intended to take, except those who are de- 
 scribed as takers;" per Shadwell, V.-C, Tucker v. Harris, 5 Sim. 
 543. 
 
 380
 
 INDEFEASIBLE VESTING AT 21 OR MARRIAGE. * 404 
 
 Examples.— (1) Portions held indefeasibly vested in chil- 
 dren who attained twenty-one or marriage, but died before 
 tenant for life. 
 
 First : Gift over before payable. — -"Where gift over on death be- 
 fore share "payable," "transferable," &c. 
 
 (a.) Portions out of land: — Emperor v. Rolfe, 1 Ws. Sen. 
 208 ("due and payable"); Cholmondeley v. Meyrick, 1 
 Ed. 77 ("due and payable"); Willis v. Willis, 8 Ves. 
 51; Fry v. Ld. Sherborne, 3 Sim. 248 (" payable"). 
 (6.) Out of personalty : — Jeffreys v. Reynoiis, 6 Bro. P. C. 
 398 (stated 9 Yes. 311, 8 Sim. 258) "assignable," 
 "transferable;" Salisbury v. Lambe, 1 Ed. 465; S. C, 
 Amb. 383; Schenck v. Legh, 9 Yes. 800 (see settlement 
 more fully stated, 5 Ves. 452) " payable, assignable, or 
 transferable;" Mocatta v. Lindo, 9 Sim. 56, "before 
 share payable, without leaving issue;" lie Williams, 12 
 Beav. 317; S. C, 19 L. J. Ch. 46, "before becoming en- 
 titled to payment, assignment, or transfer." 
 See the cases on Wills, 2 Jarm. (4th ed.) 799 et seq. 
 Secondly : — Gift over if no child, or if all children die in par- 
 ents^ life. — Where gift over if no child, or if all the children 
 should die in the parents' lifetime: — semble, if the words are 
 plain they miist prevail. See dictum in Schenck v. Legh, 9 Ves. ^ 
 300, at p. 312. There was a cla\ise to this effect in the settle- 
 ment in Currie v. Larkins, 4 De G. J. & S. 245, but no question 
 arose on it. 
 
 Thirdly : — Where the primary gift is to children who survive 
 the parent. 
 
 (a.) ^^ Such.'''' — By the inaccurate use of the word "such," so 
 that the trusts in default of children, allowed a con- 
 struction as in default of children generally and not of 
 Burvi^ng children: — Woodcock y. D. of Dorset, 
 3 Bro. C. C. 569 (see a more * accurate state- [*404] 
 ment of the settlement in note to Hoivgrare v. 
 Cartier, 3 Y. & B. 79, at p. 82, S. C. Geo. Coop. 66, at 
 p. 73); King v. Hake, 9 Ves. 438; Hoivgrare v. Cartier, 
 ubi sup.; Bailie v. Jackson, 1 Sm. & G. 175; Swalloiv \. 
 Binns, 1 K. & J. 417. 
 (6.) Gift over not fitting prior trusts. — Where gift over in 
 such forms as not to fit the prior trusts: — Hope v. Ld. 
 Clifden, 6 Ves. 499; Poivis v. Burdett, 9 Ves. 428; Per- 
 fect V. Ld. Curzon, 5 Madd. 442; Torres v. Franco, 1 
 Russ. &. M. 649 (see 3 Dav. Con v. p. 434, note); Mostyn 
 V. Mostyn, 1 Coll. 161; Gordon v. Hope, 3 De G. uV Sm. 
 351; S. C. 18 L. J. Cb. N. S. 228; Bailie v. Jackson, 1 
 Sm. & G. 175; Dixon v. Barkshirr, 81 Boav. 587; Wynne 
 V. Brady, 5 Ir. Eq. K. 289; lie Dennis, 6 Ir. Ch. K. 422, 
 
 stated ante, p. 891. 
 
 381
 
 * 405 "leave" construed "have." 
 
 See also Bouverie v. Bouverie, 10 L. J, Ch. 411; S. C. 2 
 
 Phill. 349, 11 Jur. 6G1 (a will case), where Lord Cot- 
 
 tenham, C, following Salishary v. Lambe (1 Ed. 465; S. 
 
 C. Ambl. 383) referred a gift over to survivors to the 
 
 time of indefeasible vesting, 
 (c. ) By the effect of an advancement clause: — Powis v. Bur- 
 
 clett, 9 Ves. 428. 
 In Currie v. Larkins, 9 L. T. N. S. 638; 10 Jur. N. S. 9; on 
 app. 4 De Gr. J. & S. 245; 12 W. R. 515, there was a declaration 
 that the shares should become vested and transmissiljle interests 
 in sons at twenty- one, in daughters at twenty-one or marriage, 
 " which shall first happen after the decease of the survivor of " 
 the parents: it was held that these latter words did not make it 
 necessary for a child to survive the parents in order to take a 
 vested interest; and accordingly the representatives of a son who 
 attained twenty-one and died in the life of the surviving parent, 
 took a share. 
 
 Observation. — "Leave'^ construed "/iat-e." — The use of the 
 word " leave " in the course of provisions for children would 
 
 seem, ^yrima facie, to confine the gift to children sur- 
 [ * 405] viving the parents, or to * make the gift contingent on 
 
 some one child surviving; but in obedience to the Rule 
 the Court will endeavour to construe " leave " as meaning " have;" 
 see e. g. Poicis v. Burdett, 9 Ves. 428; Rooke v. Rooke, 2 Ed. 8; 
 Bradish v. Bradish, 2. Ball & B. 479 ; Houston v. Barry, 5 Ir. Eq. 
 E. 294; Wtjnne v. Brady, 5 Ir. Eq. E. 239: 2 Jarm. Wills (4th 
 ed.) 823. But see Orlebar's Trusts, L. E. 20 Eq. 711. 
 
 Examples (2). — Where it was held that only children 
 surviving- the stated time could take : 
 
 Wingrave Y. Palgrave, 1 P. Wms. 401; Gordon y. Raynes, 3 
 P. Wms. 134; Hotchkin v. Humfrey, 2 Madd. 6p; Fitzgerald v. 
 Field, 1 Euss. 416 (see 430); Balmain v. Shore, 9 Ves. 500; What- 
 ford V. Moore, 3 My. & Cr. 270 (see 27 Beav. 81,; Jeffery v. Jef- 
 fery, 17 Sim, 26; Skipper v. King, 12 Beav. 29; Lloyd v. Cocker, 
 19 Beav. 140; Re Heath, 23 Beav. 193; Re Wollaston, 27 Beav. 
 642. See also Tucker v. Harris, 5 Sim. 538; Wilson v. Mount, 
 19 Beav. 292 (will cases); and per Turner, L. J., in Remnant v. 
 Hood, 2 De G. F. & J. at p. 411. 
 
 Observation. — Substitution of issue for children dying in their 
 parents^ lifetime. — Since one of the objects of the Eule is to make 
 some provision for the issue of children who mai'ry and die leaving 
 issue in their parents' lifetime, it will not be applied in cases 
 where the issue of a child dying before the tenant for life are 
 substituted for their parent; Jeyes v. Savage, L. E. 10 Ch. 555; 
 Re Orme, 1 Ir. Ch. E. 175, ante, p. 388; Re Wilmott, L. E. 7 Eq. 
 532; 2 Jarm. Wills (4tfi ed.), 803. 
 382
 
 KECAPITl'LATIOX. * 406 
 
 Where trusts extend to dcmghters. — Probably the rule will not 
 be applied where trusts extend to daughters, and their shares are 
 made payable to them on {inter alia) marriage, and there is a 
 gift over to issue on the death of their parents before their por- 
 tions are "payable;" for, in such cases, if "payable" is to be 
 referred ix> the time of vesting, the substitutionary gift 
 to * issue of daughters can never take effect; Day v. [*40G] 
 RadcUffe, 3 Ch. D. 654 
 
 Bat the rule will be applied if the issue of a child dying be- 
 fore twenty-one are substituted for it; Mocatta v. Linda, 9 Sim. 
 56. But see remarks on this case in 3 Dav. Oonv., p. 435, note, 
 and per James, V.-C, in Be Wilmott, L. K. 7 Eq. at 537. 
 
 To recapitulate: — 
 
 In the absence of clearly expressed directions as to vesting; 
 
 1. "Where no time is named for the payment of portions : — 
 (a) If charged on land they vest in sons at twenty-one, in 
 
 daughters at twenty- one or marriage. 
 (6) If out of a personal fund they vest at birth. 
 
 2. Where the payment is postponed till an event personal to 
 the portionist: — 
 
 (a) If charged on land the portions do not vest unless and 
 
 until that event happens. 
 (6) If out of personal fund they vest at birth. 
 
 3. Where a portion is given out of personal fund only by a di- 
 rection for payment on an event personal to the portionist it does 
 not vest until and unless such event happens. 
 
 4. In all the above cases the fact of the actual raising or pay- 
 ment of the portion being postponed for the convenience of the 
 estate makes no difference. 
 
 5. In a settlement made by a person in loco parentis the right 
 of a child to a portion will not depend on its surviving its parent, 
 unless the words clearly and unambiguously make the right so 
 dependent. 
 
 383
 
 * 408 COVENANT EXECUTED EXECUTORY ASSIGNMENT. 
 
 [*407] ^CHAPTER XXVII. 
 
 COVENANTS (a). 
 
 Covenant explained : Executory and executed covenants distin- 
 guished : Covenant operating as assignment : Assignment 
 ojjerating as covenant : No set form of tvords necessary to 
 create covenant: Covenants implied on tvhole deed: Recital 
 creating covenant: Admission of debt by recital: Clause in- 
 troduced by a participle, or tvords " to be " ; " Provided " ; 
 Breach of trust, when a specialty debt : Covenants in law — • 
 by tvords " demise," " let," " give," " grant" : Implication 
 negatived by express covenants: Agreement under seal to 
 execute deed which is to contain covenants: Construction 
 against the covenantor: ^^ It is hereby agreed and declared" : 
 Exception to absolute covenant: Proviso repugnant to or 
 limiting jyersonal liability : Penalty or liquidated damages : 
 Specific Performance or Injunction where penalty or liqui- 
 dated damages. 
 
 " Covenant," meaning of (b). — Although the word "covenant," 
 in its strict sense, means an agreement under seal, that something 
 has or has not already been done, or shall or shall not be done 
 hereafter. Shep. Touch. 160, 162, it is sometimes, especially in 
 agreements, applied to any promise or stipulation whether under 
 seal or not: Hayne v. Cummings, IG C. B. N. S. 421; and 
 [ *408 ] see Brookes v. Drysdale, * 3 C. P. D. 52, where the word 
 " covenant"" in jan agreement was held to include a pro- 
 viso; Severn and Clerke^s Case, 1 Leon. 122, where "covenants, 
 articles, and agreements " in a bond included a recital. 
 
 [a) It follows from Eule 2, p. 8, that a covenant cannot be construed by 
 the interpretation that has been put on it by the parties; Baynham v. Giufs 
 Hospital, 3 Ves. 295; Ealon v. Lyon, 3 Ves/690; 3Ioore v. Foley, 6 Ves. 232; 
 IgguMen v. May, 9 Ves. 325; S. C, 7 East, 237; 2 Bos. & P. N. R. 449; ex- 
 cept in the case of an ancient document, ante, p. 74. 
 
 (h) A man cannot covenant with himself, nor with himself and others 
 jointly; Faulkner \. Lowe, 2 Ex, 595. 
 
 384
 
 STIPULATION NEGATIVING COVENANT. * 409 
 
 Covenant executed or executory. — A covenant may be execiated, 
 i.e., that a thing " has or has not been done; " e.g., that A. has not 
 iccumberpd; or executory, i.e., that something "shall or shall not 
 be done; " e.g., that A. will execute a further assurance. Where, 
 however, the covenant is that property shall as from the date of 
 the deed belong to another, it will not take effect as a covenant, 
 but may operate in equity as a conveyance : see Uolroyd v. Mar- 
 shall, 10 H. L. C. 191; e.g., a covenant '' that my horse is yours;" 
 Shep. Touch. 162: Plowd. 103, Arg.: a covenant to stand seised 
 before the Statute of Uses; a covenant that you " shall have my 
 land for five years;" Shep. Touch. 161. See also the cases cited 
 ante, pp. 44, 45 ; and as to easements or profits a firendre created 
 by covenants, see the cases cited, ante, p. 184, and Northam v. 
 Hurley, 1 El. & Bl. 665; and ante pp. 42, 43. 
 
 Assignment operating as covenant. — On the other hand, an at- 
 tempted assignment of property of which the assignor is not" the 
 present owner cannot take effect by way of conveyance, but it may 
 operate as a contract to convey the property when the assignor 
 shall have become owner of it. In Collyer v. Isaacs, 19 Ch. D. 
 342, where there was an assignment by way of seciirity to a 
 creditor of chattels which might be afterwai'ds brought on to the 
 premises, Jessel, M. R., said : — " That assignment constituted only 
 a contract to give him the after- acquired chattels. A man cannot 
 in equity any more than at law assign what has no existence. A 
 man can contract to assign property which is to come into exist- 
 ence in the future, and when it has come into existence, equity, 
 treating as done that which ought to be done, fastens upon that 
 property, and the contract to assign thus becomes a complete as- 
 signment. If a person contract for value, e.g., in his marriage 
 settlement, to settle all such I'eal estate as his father shall leave 
 him by will, or purport actually to convey by the deed 
 all such real estate, the effect is * the same. It is a con- [ * 409 ] 
 tract for value which will bind the property if the father 
 leaves any property to his son." 
 
 But in\Re D'Epineuil, Tadman v. D'Epineuil, 20 Ch. D. 758, 
 Fry, J., held that a charge by A. on "all his present and future 
 personalty " by way of security, was inoperative as to after-ac- 
 quired property, on the ground that such property was undefined. 
 See the remarks of Lopes, J., in Lazarus v. Andrade, 5 C. P. D. 
 at p. 320; and see Clements v. Mattheivs, 11 Q. B. D. 808; Reeves 
 V. Barloiv, 12 Q. B. D. 436; Walker v. Bradford Oil Bank, ib. 
 511 
 
 Stipulation negativing obligation. — A stipulation merely nega- 
 tiving an obligation is not a covenant; Bartlett v. Hodgson, 1 T. 
 R. 42. 
 
 25 INTEKPEETATION OF DICEDS. 385
 
 * 410 NO SPECIAL WORDS NECESSARY TO CREATE COVENANT. 
 
 Rule 151."" — No special words necessary to create covenant. — 
 No particular form of words is necessary to create a covenant. It 
 is sufficient if, from the construction of the "whole deed, it ap- 
 pear that the party means to bind himself. 
 
 Rule stated. — " There needs not formal and orderly words as 
 'covenant,' 'promise,' and the like, to make a covenant on which 
 to ground an action of covenant, for a covenant may be had by 
 any other words; and upon any part of an agreement in writing, 
 in what words soever it be set down, for anything to be or not to 
 be done, the party to or with whom the promise or agreement is 
 made, may have this action upon the breach of the agreement;" 
 Shep. Touch. 162. 
 
 " Wherever the intent of the parties can be collected out of a 
 deed for doing or not doing a thing, covenant will lie," per Not- 
 tingham, C, Hill V. Carr, 1 Ga. Ch. 294; S. C, sub nom. HolUs 
 v. Carr, 2 Mod. 86, and sub nom. Holies v. Carr, 3 Swan. 638. 
 
 " No particular technical words are necessary towards making 
 a covenant;" per Lord Mansfield, C. J., Lant v. Norris, 1 Burr. 
 290. 
 
 " It is fully established that no precise form of words is neces- 
 sary to constitute a covenant. 'Any words in a deed 
 [ * 410 ] which shoiv an agreement to do a thing make a * cove- 
 nant' ( Com. Dig. Covenant, A. 2 ) ; but it must be clear that 
 they are meant to operate «sa?7 agfree??ie?if, and not merely as words 
 of condition or qualification; Com. Dig. Covenant, A. 3; 1 Roll. Abr. 
 518, pi. 3, 4;" per Lord Denman, C. J., Wolveridge v. Steward, I 
 Cr. & M. 657. 
 
 " It is undoubted law that no particular word, or form of 
 words, is necessary to create a covenant; but that any words are 
 sufficient for that purpose which show an intention to be bound 
 by the deed to do or omit that which is the subject of the cove- 
 nant; any such words are sufficient, and some such words are 
 necessary, to make a covenant;" per Cur., Rashleigh v. S. E. Ry. 
 Co., 10 C. B. 632. 
 
 " To charge a party with a covenant, it is not necessary that 
 there should be express words of covenant or agreement. It is 
 enough if the intention of the parties to create a covenant be ap- 
 parent;" per Tindal, C. J., Courtney v. Taylor, 6 M. & Gr. 867; 
 S. C. 7 Scott, N. R. 765. 
 
 *' Covenants do not depend upon technical or precise words. All that is 
 necessary is that it shall appear that the intent of the parties was to hind 
 themselves. Tavlor v. Preston, 79 Pa. St. 436; Trutt v. Spots, 87 Pa. St. 
 339; Hallett v. Wylie, 3 Johns. (N. Y.) 44; Bull v. Follett, 5 Cow. (N. Y.) 
 170; Myers v. Bnrns, 33 Barb. (N. Y.) 401; Davis v. Lyman, 6 Conn. 252; 
 Tomlinson v. Ousa tonic Water Co., 44 Conn. 99; Newcomb v. Presby, 8 Mete. 
 (Mass.) 406; Gardner v. Cosson, 15 Mass. 504; Levering v. Lovering, 13 N. 
 H. 513, Marshall v. Craig, 1 Bibb. (Ky.) 379; Harris v. Nicholas, 5 Munf. 
 (Va.) 483. 
 
 386
 
 COVENANT IMPLIED FROM WHOLE DEED. * 411 
 
 " The doctrine [as to implied agreements] which is to be col- 
 lected from the cases, is involved in much ditKcnlty. It is not 
 always possible to see what is and what is not sufficient to raise 
 an implied agreement. This, however, is a plain, intelligible, 
 sensible, and settled rule that, whereas you ought never to imply 
 a covenant against the intention of the parties, so it goes further, 
 and you ought not to imply an agreement unless, in the fair and 
 honest construction of the deed, it appears that it was the inten- 
 tion of the parties, or unless it is absolutely necessary to imply 
 it; and when it is said you ought not to imply a covenant unless 
 it is necessary, that must be taken to mean when it is necessary, 
 in order to carry into effect the intention of the parties, that it 
 should be implied; and that means, not the intention of the par- 
 ties merely that payment should be made, but their intention that 
 the deed should operate by way of agreement to pay;" jjer Kin- 
 dersley, Y. C, Iven v. Ehces, 3 Drew. 34. 
 
 But the Court must " be satisfied that the language does not 
 merely show that the parties contemplated that the thing might 
 be done, but it must amount to a binding agreement 
 upon them that the thing shall be done;" per * Parke, [ *411 ] 
 B., James v. Cochrane, 7 Exch. at p. 177. (See per Cock- 
 burn, C. J., Smith V. Mayor of Hanvich, 2 C. B. N. S., at p. 
 669.) 
 
 Agreement tinder seal must amount to covenant. — On the other 
 hand the parties cannot stipulate that an agreement under seal 
 shall not create a covenant. In Ellison v. Bignold, 2 J. & "W. 503 
 (see 510j, certain parties " resolved and agreed and did, by way 
 of declaration and not of covenant, agree," and it was held that 
 they had covenanted. 
 
 " Ujyon condition. — Lease " upon condition that " the lessee 
 shall do certain things; this is a covenant by the lessee; 4 Cru. 
 Dig. Tit. 32, Ch. 26, s. 6; 1 Koll. Abr. 518, pi. 5. 
 
 " I ti-ill he read}] to.^^ — " I have in my hands a writing obliga- 
 tory, and I will be ready at all times to re-deliver the same 
 writing obligatory to B. ;" /leZd, covenant to do so; Walker v. 
 Walker, 1 Koll. Ab. 519, pi. 8. 
 
 Warranty.— Con\eyance in fee with clause of warranty; evic- 
 tion on prior title for years; the grantee can bring covenant on 
 the warranty; Budg v. Pincomhe, 1 Koll. Kep. 25; S. C, sub 
 nom. Pincombe v. Rudge, Hob. 3 (see 28). See Williamson v. 
 Codrington, 1 Ves. sen. 511. A warranty in a lease for years is 
 a covenant, Shep. Touch. 163. 
 
 Proviso. — A proviso may amount to a covenant, or it may be 
 merely a qualification of the preceding covenant. If a lessee for 
 years covenants to repair, provided always and it is agreed that 
 the lessor shall find timber: the word "agreed" operuteH as a 
 covenant to find timber: if this word had been omitted it would 
 only have operated as a qualification of the covenant by the 
 
 387
 
 *413 COVENANT IMPLIED FROM WHOLE DEED. 
 
 lessee; Holder v. Tayloe, 1 Roll. Ab. 518. See Co. Lit. 2036; 
 Shep. Touch. 122. 
 
 Examples. — (1.) Covenant implied on construction of the 
 whole Deed. — By deed it was agreed between A. and B. '' that 
 
 A. shall give £775 to B. for his lands, &c., the money to be paid 
 before Midsuramer; " held, that the words amounted to a covenant 
 by B. to convey the lands, &o. ; Pordage v. Cole, 1 Wms. Saund. 
 319 (ed. 1871, vol. I., 548). 
 
 Agreement in a charter-party that " forty days shall be 
 
 allowed for unloading and loading again;" held, that a 
 
 [ * 412 ] * covenant not to detain the ship more than forty days 
 
 for loading must be implied; Randall v. Lynch, 12 
 
 East, 179. 
 
 Covenant by a lessee that he, would, at all times and seasons of 
 burning lime, supply the lessor and his tenants with lime at a 
 certain price and for certain purposes; held, to imply a covenant 
 by him to burn lime at all such seasons; Shrewsbury v. Gould, 2 
 
 B. & Al. 487. 
 
 Covenant in a lease that the tenant should fold " his flock of 
 sheep which he should keep on the demised premises; " held, 
 that this amounted to a covenant to keep a flock of sheep on the 
 premises; Webb v. Plumnier, 2 B. & Al. 746. 
 
 Words of exception. — Covenant by lessee to plough the de- 
 mised premises, except the warren, in due course of husbandry; 
 held to imply a covenant not to plough the warren; St. Alban''s 
 V. Ellis, 16 East, 352. 
 
 In an agreement for a lease of trade premises it was provided, 
 " that all the coals consumed and used by the plaintifi for the 
 purpose of his manufacture during the term should be bought 
 and purchased of the defendants, provided the defendants could 
 and should supply him with the quantity that should from time 
 to time be required by him, or to such extent as the defendants 
 could supply; and tliat the defendants should charge for the same 
 at a given price and no more: and further that the defendants 
 should not be compelled to supply more than 500 tons per week; 
 and that in case the defendants should from some substantial 
 cause be unable to supply coal to the extent agreed upon, they 
 should give the plaintiff six months' notice of such their inability, 
 and in such case' the plaintifi" should be at liberty to obtain his 
 supply of coal, or the excess beyond the quantity that the defend- 
 ants could supply, from any other source; held, that this amounted 
 to a covenant by the defendants to supply the plaintiff with coal 
 to the extent of 500 tons per week, unless prevented by some sub- 
 stantial cause; Wood v. Copper Miners, 7 C. B. 906. 
 
 Agreement for sale of a business, the purchase-money to be 
 
 payable by instalments contingent on the amount of 
 
 [ * 418 ] * profits of the business; held, that, as the amount of 
 
 purchase-money depended on the profits of the business, 
 
 388
 
 COVENANT NOT IMPLIED. * 414 
 
 there was an implied covenant by the purchasers to carry it on; 
 Telegraph and Intelligence Co. v. McLean, L. R. 8 Cb. G58. See 
 King v. Accumulative Assurance Co., 3 C. B. N. S. 151. f)o.s/, 
 
 p. 415. 
 
 "Provided always, and these presents are upon this e.^press 
 condition, &c./' in a lease held to amount to a covenant; Brookes 
 Y. Drysdale, 3 C. P. D. 52; S. C. 26 W. R. 381. 
 
 Conveyance in fee, with a restriction by way of use against 
 carrying on certain trades; held, to amount to a covenant not to 
 caiTy them on; Hodson v. Cojypard, 29 Beav. 4; S. C, 30 L. J. 
 
 Ch. 20. 
 
 The following cases may also be referred to: Seddon v. Senate, 13 
 East, 63: Great Noiihern Raihcay Co. v. Harrison, 12 C. B. 576; 
 Knight v. Gravesend, &c., Co., 2 H. & N. 6; Momjpenny v. Mony 
 penny, 4 K. & J. 174: 3 De G. & Jo. 5<2; U H. L. C. 114; Gerard 
 v. Lewis, L. R. 2 C. P. 305; Rigby v. Great Western Railway Co., 
 14 M. & W. 811. 
 
 « Examples.— (2.) No covenant implied on the construc- 
 tion of the whole deed.--The plaintitf covenanted with the de- 
 fendant that D. should for live years from that date serve the 
 defendant in the art of a surgeon dentist, and attend for nine 
 hours each day; and the defendant in consideration of the ser- 
 vices to be done by D., covenanted with the plaintiff that the de- 
 fendant would during the five years, in case D. should faithfully 
 perform his part of the agreement, particularly as to the nine 
 hours, but not otherwise, pay to D. certain weekly suras. D. re- 
 mained for some time in the defendant's service and faithfully 
 performed his part of the agreement, but defendant during the 
 term dismissed D. ; held, that there was no implied covenant that 
 the defendant would allow D. to serve him during the whole of 
 the term; Dunn v. Sayles, 5 Q. B. 685. 
 
 The plaintiff conveyed two pieces of land to a Railway Com- 
 pany, subject to the 'performance by them of certain 
 * agreements therein recited, being to the same effect as [ * 414 ] 
 the covenants contained in the deed hereinafter stated, 
 and one of the pieces of land was described as "a slip of land then 
 being intended to be formed into a new course for the nyer 
 Beult;" and by deed of even date the company covenanted with 
 the plaintiff to make a new bridge over the intended new cut for 
 the use of the plaintiff within three months after the j)ermammt 
 rails of the railway should be laid down; and after the same 
 should be completed, to reconvey to the plaintiff the slip of land 
 which should form the new course of the river B<ml1 , so far as 
 the same should be diverted; and also to iill ui)and l.'v.'l Iho then 
 existing course of the river Beult so far as the same should 
 have been diverted; held, that there was no,implied covenant to 
 make a new cut and divert the stream; RashU-igh v. Soiith-Kast. 
 em Railway Co., 10 C. B. 612. 
 
 389
 
 * 415 RECITALS CREATIXG COVENANTS. 
 
 By deed, A. & B., who were partners, assigned to the plaintiffs 
 all the partnership, stock debts, and sums of money, and all other 
 the personal estate and effects and property of them as such 
 partners. At the date of the deed, A. was indebted to the part- 
 nership; Jield, that there was no implied covenant by A. to pay 
 to the plaintiffs the sums due from him to the partnership; Aul- 
 ton V. Atkins, 18 C. B. 249. 
 
 By deed a Corporation agreed with a contractor that he should 
 make certain works, which the Corporation were empowered by 
 Act of Parliament to make, at a certain price, subject to the fol- 
 lowing provisions, namely {inter alia) "that the assent of the 
 Commissioners of Woods and Forests shall be given to the said 
 Mayor, &c., to carry out the said works so far as the same affect 
 the land or soil of the Crown;" held, that no covenant was im- 
 plied on the part of the Corporation to obtain the assent of the 
 Commissioners; Smith v. Mayor, &c., of Harwich, 2 C. B. N. S. 
 651. 
 
 A. effected a policy on his own life, by the terms of which policy 
 certain funds only, in exoneration of the shareholders, 
 [ * 415 ] were liable to answer claims on the company * The 
 company ceased to carry on business; held, in an action 
 by the insured, that there was no implied covenant by the com- 
 pany to continue to carry on the business; King v. Accumulative 
 Assce. Co., 5 C. B. N. S. 151: see Telegra2:>h Dispatch and Intelli- 
 gence Co. V. McLean, L. R. 8 Ch. 658, ante, p. 413. 
 
 The plaintiffs leased a coal-mine to the defendants at a mini- 
 mum rent, to be increased in case there should be pits sunk on 
 the estate, and the lessees covenanted to work the mine uninter- 
 ruptedly, efficiently and regularly, according to the usual or most 
 improved practice; held, that the lessee, who worked the mine by 
 out-stroke, was not bound to sink pits, though that might be the 
 most efficient wav of working; Wheatley v. Westminster Brymho 
 Coal Co., L. R. 9 Eq. 538. 
 
 See also Sharj) v. Waterhouse, 7 El. & Bl. 816; James v. Coch- 
 rane, 7 Ex. 170; S. C, 8 Ex. 556; Borroives\. Borrowes,6 Ir. R. 
 Eq. 368. 
 
 Recitals Creating Covenants. 
 A recital may create a covenant.®" See ante, p. 143. 
 
 "Where words of recital or reference manifested a clear inten- 
 tion that, the parties should do certain acts, the Courts have from 
 
 ^ De Forest v. Byrne, 1 Hilt. (N. Y.); 43 Horry v. Frost, 19 Eich. Fq. 
 (S. Car.) 109. The recital of an agreement only operates as a covenant 
 ■when it is apparent from the Avhole scope of the deed that it was intended 
 so to operate. Douglass v. Hennessy, 3 New Eng. Rep. 525; Huddle «. 
 Worthington, 1 Ohio, 423. 
 
 390
 
 RECITALS CREATING COVENANTS. * 417 
 
 these inferred a covenant to do such acts;" per Lord Denman, 
 C. J., Aspdin v. Austin, 5 Q. B. 683. 
 
 " There can be no question that a recital in a deed may amount 
 to a covenant, but it must be plain upon tbe whole deed that it 
 was so intended;" per Sullivan, M. R., Borroives v. Borrowes, Ir. 
 E. 6 Eq. 378. 
 
 It is not easy to state precisely what words in a recital amount 
 to a covenant, but it has been held that: — 
 
 A recital that something is intended to be done amounts 
 to a covenant to do that thing, and that * a recital of [ * 416 ] 
 a state of facts amounts to a covenant that that state 
 exists. 
 
 Examples. — Where the condition of a bond contained a recital 
 that the plaintifif had covenanted with the defendant that it should 
 be lawful for the defendant to cut wood for lire-bote without 
 making waste or cutting more than necessary, and the condition 
 was to Derform all covenants and agreements, it was held, in an 
 action by the plaintiff against the defendant for waste in felling 
 wood, that the defendant was bound; Stevinson's Case, 1 Leon. 
 324, pi. 457; 12. East, 182 n. 
 
 Eecital in lease of a mine, that before the sealing of the in- 
 denture it was agreed that the plaintiff should have the third 
 part of the coals digged; held, to amount to a covenant to render 
 them; Barfoot v. Freswell, 3 Keb. 465. 
 
 Recital "in a mortgage, that it had been agreed between the 
 mortgagor and mortgagee that the mortgagee should be at liberty 
 to sign judgment in an action commenced against tbe mortgagor, 
 " but that no execution shall issue thereon until this present se- 
 curity be realized; " held, to amount to a covenant by the mort- 
 gagee not to issue execution till the realization of the security; 
 Farrall v. Hilditch, 5 C. B. N. S. 840. 
 
 Recital, in marriage articles, of an agreement to levy a fine, 
 held, to amount to a covenant to levy it; Ilollis v. CaiT, Freem. 
 Ch. 3; 2 Mod. 86; 3 Swan. 638. 
 
 In a marriage settlement there was a recital that the wife s 
 father was desTrous to give his daughter as a hiarriage j^ortion 
 such sum or child's share as he might be entitled to dispose of : 
 and the intended husband, who had power to jointure to the 
 amount of £10 per cent, on j;he fortune which he should receive 
 with his wife, in consideration of the marriage aLd of the portion 
 agreed to 1)0 paid as thereinbefore stated, appointed a jointure 
 of £500 a-year, which was .■ilsocollHterally secured on other lands 
 not subject to the power; held, that the recital amounted 
 to an absolute covenant bv the father * that his daughter 1*117] 
 should have on his death an equal share of his i)ersonal 
 
 391
 
 * 418 RECITALS CREATING COVENANTS. 
 
 estate with his other children; Duckett v. Gordon, 11 Ir. Ch. R. 
 181. 
 
 Recital in a partnership deed, executed on the retirement of 
 one partner, of an agreement, • " that the debts and credits of the 
 retiring partner shall be received and paid by the continuing 
 I artners; " held, to amount to a covenant by the continuing part- 
 ners to pay the debts of the retiring partner; Saltoun v. Honstoun, 
 1 Ring. 433. 
 
 Recital in marriage articles, that the defendant was to pay to 
 the plaintiff £1000 for the marriage portion of the wife, held to 
 amount to a covenant to pav that sum; Graves v. White, Freem. 
 Ch. 57. 
 
 Recital in a deed poll by A. that he was possessed of certain 
 lands for years of a certain term, and that by good and lawful 
 conveyance he assigned the same to B., with divers covenants, 
 articles, and agreements in the said deed contained which are or 
 ought to be performed on his part; and the condition of the deed 
 poll was to perform, &c. ; held, that, unless A. had that interest, 
 the condition was forfeited; Severn and Gierke's Case, 1 Leon. 
 122. See Rawle on Covenants, 479. 
 
 Recital in a lease of an agreement by the lessee with the lessor 
 and other parties for pulling down an old mill and building 
 another of larger dimensions, followed by a covenant to keep such 
 new mill in repair and leave it at the end of the term; held, 
 that there was an implied covenant to build it; Sampson v, 
 Easterhij, 9 B. & C. 505; 6 Ring. 644. 
 
 Recital in a creditors' deed that the debtor had agreed to pay 
 a certain composition on his debts, followed by a release by the 
 creditors;' held, to amount to a covenant to pay the composition; 
 Lay V. Mottram, 19 C. B. N. S. 479. 
 
 Recital that defendant had agreed to pay off certain mortgages 
 
 and debts of W., and covenant by defendant to save 
 
 [ * 418 ] harmless and indemnify against the payment of * the 
 
 said debts; held, to amount to a covenant to pay the 
 
 debts as well as to indemnify; Carr v. Boherts^ 5 B. & Ad. 78. 
 
 Express covenant supersedes covenant implied. — Bearing in 
 mind Rule 19, (ante, p. 89), it will be evident that, if there be an 
 express covenant to' which the recital can be referred, the words 
 of the express covenant must be taken to supersede the covenant 
 which, in their absence, might have been implied from the recital; 
 see Young v. Smith, L. R. 1 Eq. 180; 35 Beav. 87. And see per 
 Jessel, M. R., Datves v. Tredivell, 18 Ch. D. at p. 359, cited ante, 
 p. 143. 
 
 Admission of debt by recital. — A mere admission of a debt by 
 a recital (which may be contained in a deed poll, Turner v. 
 ^ 392
 
 PARTICIPLE OR "TO BE" CREATING COVENANT. *419 
 
 Wardle, 7 Sim. 80), where the recital has no other object, implies 
 a covenant for payment; Br ice v. Carre, or Curr, 1 Lev. 47; 1 
 Keb. 155. See the dicta of Lord Cairns, C, in Isaacsoyi v. Har- 
 wood, L. R. 3 Ch. 228, and of Romilly, M. R., in Marryat v. Mar- 
 ryat, 28 Beav. 226 : and per Malius, V.-C, in Jackson v. .V. E. 
 Ry. Co., 7 Ch. D. at p. 583, cited ante, pp. 143, 144. 
 
 But a recital does not so operate where it is made for some 
 other purpose; e.g., to show what is intended to be secured by the 
 deed. 
 
 Accordingly, recitals that a debt is due in a conveyance in trust 
 to secure it {Jackson v. A^. E. Ry. Co., 7 Ch D. 573), or in amort- 
 gage to secure it {Isaacson v. Haincood, L. R. 3 Ch. 225; Mai-ryat 
 V. Marryat, 28 Beav. 224), or in the transfer of a mortgage 
 {Courtney v. Taylor, 6 M. & Gr. 851; 7 Sc. N. R. 749), or in an 
 assignment for the benefit of creditors {It-en v. Ehces, 3 
 Drew. * 25, were not held to turn the debts into spe- [ *41i)] 
 cialties. See also Stone v. Van Heythusen, Kay, 721 : 
 but see Lay v. Motxram, 19 C. B. N. S. 479. 
 
 In Cheslyn v. Dalby, 4 Y. & C. Ex. 238, the recital was taken 
 to amount to a covenant to pay, although "it had another object 
 also. 
 
 If the recital be followed by an agreement to execute a mort- 
 gage "including all powers, covenants, and clauses incidental and 
 necessary thereto," the debt is a specialty; Saunders v. Milsome, 
 L. R. 2 Eq. 573. 
 
 Where a deed of assignment contained a recital of an agree- 
 ment for the transfer of certain property " for the sum of £1000," 
 followed by the usual acknowledgment of the receipt of the 
 £1000, which, however, was not in fact paid, it was held that no 
 covenant to pay the £1000 could be implied in the face of tlio 
 acknowledgment; Morgan'' s Patent Anchor Co. v. Morgan, 35 L. 
 T. 811. Amphlett, B., said: "The question is whether, as the 
 deed stands, a court of law can say that there is by implication a 
 covenant to pay a certain sum of money, when the same deed 
 says that the money has been already paid. I do not think that 
 it can." 
 
 Participle — " To be." 
 
 Clause introduced by participle or " to be." — In several cases 
 a clause introduced by a participle or the words "to bo," has 
 been held to amount to a covenant (a). See Piatt on Covenants, 
 99, et seq., and post, p. 404. 
 
 (a) This covenant may (lualily aiiotber covenant, see post, p. 465. 
 
 393
 
 *421 PARTICIPLE OR "TO BE" CREATING COVENANT. 
 
 Examples. — " Yielding and paying.'" — " Yielding and paying* 
 rent has been held to amount to a covenant io pay it; see Piatt 
 on Covenants, Ch. 2; Harper v. Burgh, 2 Lev. 206; S. C. sub 
 nom. Harper v. Bird, T. Jo. 102; Webb v. Russell, 3 T. 
 f *420] R. at p. 402; Vyvyan v. Arthur, 1 B. & C. 410; * Iggul- 
 den V. May, 9 Ves. at p. 330; Neicton v. Osborn, Sty. 387; 
 Vorter v. Swetnam, Sty. 406; Hellier v. Casbard, 1 Sid. 240, 266; 
 Dtike of Northumberland v. Errington, 5 T. R., 522, stated post, 
 pp. 478, 479. 
 
 '■'•Rendering.''^ — "Rendering" rent free and clear from all 
 manner of taxes, charges, and impositions whatsoever, held, to 
 amount to a covenant to pay the rent free from all taxes, &c. ; 
 Giles V. Hooper, Carth. 135. 
 
 " Subject to " payment. — But an assignment of a lease " sub- 
 ject " to the payment of the rent and performance of the cove- 
 nants in the lease by the assignee did not imply a covenant by 
 the assignee to indemnify the assignor against the rent; Wol- 
 veridge v. Steward, 1 Cr. & M. 644 {i. e. after the assignee had 
 assigned over). 
 
 Excepting. — Lease of a house "excepting two rooms and free 
 passage to them." The assign of the lessee disturbed the lessor 
 in the passage; held that he was liable on an action of covenant; 
 Bush V. Cole or Coles, Carth. 232; 12 Mod. 24; S. C, sub nom. 
 Bush V. Calis, 1 Show 388; Cole's Case, 1 Salk. 196. 
 
 '■'■ Being. ^'' — Covenant by lessee " to repair and glaze the win- 
 dows of the messuage and also the hedges, ditches, &c., the said 
 fai'mhouse and buildings being previously put iu repair and kept 
 in repair by" the lessor; held, to amount to a covenant by the 
 lessor to put into repair; Cannock v. Jones, 3 Ex. 233; in app. 5 
 Ex. 713. 
 
 " Slates being found, allowed, and delivered on the premises 
 by A.;" held, to amoiint to a covenant by A. to deliver them; 
 Mucklestone v. Thomas, Willes, 146. 
 
 ^^ Doing,^^ &c. — "Doing, fulfilling, and performing;" Boone v. 
 Eyre, 2 W. Bl. 1312. "Doing suit to the mill;" Vyvyan v. 
 Arthur, 1 B. & C. 410. 
 
 " To be.''—'' To be paid; " Boiver v. Hodges, 13 C. B. 765. 
 
 Clause introduced by participle qualifying preceding covenant. 
 —But a clause introduced by a participle, or the words "to be," 
 may amount only to a qualification of the covenant with which it 
 is connected. 
 
 [ * 421 ] * Examples. — Covenant by lessee to repair, " the 
 lessor allowing and assigning timber for repairs ; " held, 
 to amount to a qualification of the covenant to repair; Thomas y. 
 Cadwallader, Willes, 496. 
 394
 
 COVENANTS IN LAW. * 422 
 
 Covenant by lessee not to assign without the lessor's consent, 
 "such consent not being arbitrarily withheld;" Treloor v. Bigge, 
 L. R. 9 Ex. 151; "not to be unreasonably withheld:"' Sear v. 
 House Property and Investment Society, 16 Ch. D. :!S7; lield, 
 that the words amounted only to a qualiiicatioa of i\iv covenant 
 by the lessee. 
 
 Breach of Trust. 
 
 Breach of trust, ivhen specialty debt. — A breach of trust, of 
 itself, creates a simple contract debt only (Vernon v. Vawdry, 2 
 Atk. 119; Cox V. Bateman, 2 Ves. Sen. 19; Lewin on Tr. 7th ed. 
 189); but the questi'on has been much discussed whether the exe- 
 cution by the trustee of the deed by which he is made a trustee, 
 operates to make the debt a specialty. 
 
 It is now decided that, where the deed merely contains an ap- 
 pointment of a man as trustee, and a declaration by him that he 
 accepts the office of trustee, no covenant on his part will be im- 
 plied, and a breach of trust will not create a specialty; Adey t. 
 Arnold, 2 De G. M. & G. 432; Wynch v. Gra7it, 2 Drew. 312; 
 Holland v. Holland, L. R. 4 Ch. 449; see also Isaacson v. Har- 
 icood, L. R. 3 Ch. 225; Newport v. Bryan, 5 Ir. Ch. R. 119; but 
 that, on the other hand, if the deed contain a declaration of trust 
 (Benson v. Benson, 1 P. Wms. 130; Gifford v. Manley, Forr. Ca. 
 t. Talb. 109; Cummins v. Cummins, 3 Jo. & Lat. 64; Wood t. 
 Hardisty, 2 Col. 542; Mavor v. Davenport, 2 Sim. 227; Harris v. 
 Sadleir, I. R. 8 Eq. 160, 519) a breach of trust amounts 
 to a specialty, even * if the declaration of trust be con- [ * 422 ] 
 tained in a deed poll (Turner v. Wardle, 7 Sim. 80): 
 unless the trustee do not execute the deed, though he may act 
 under it; Richardson v. Jenkins, 1 Drew. 477. 
 
 Covenants in Laiv (a).*' 
 
 "A covenant in law, properly speaking, is an agreement which 
 the law infers or implies from the use of certain words having a 
 
 (a) As to the statutory covenants implied in a conveyanoe for value by a 
 person conveying "as beneficial owner," iu a settlement by a person con- 
 veying "as settlor," and in any conveyance by a person conveying "as 
 trustee," &c., see the Conveyancing and Law of Property Act. IHHI (ll & 4.') 
 Vict. c. 41), s. 7. As to implied covenants generally, see Piatt on Cove- 
 nants, Pt. 1, Ch. 2, 8. 3. As to liability undercovenants implied in law, see 
 posl, p. 436. 
 
 *' Among words which have been held to imply covenants are the follow- 
 ing: "grant;" Grannis v. Clark, 8 Cow. (N. Y.) 30; "cive;" Kent r. Welsh, 
 7 Johns. (N. Y.) 2.'")8; compare Dow v. Lewis, 4 (iray, (Mass.1 4()H; " lease; " 
 Maule V. Ashmead, 20 Pa. St. 482; "demise;" Sumner r. William.s, H Maas. 
 201; lirice v. Fulton Nat. Bank, 70 N. Y. 162; "yielding and paying;" 
 
 395
 
 * 423 '''demise'' — '-let" — ''give"' — "grakt." 
 
 known legal operation in the creation of an estate; so that, after 
 they have had their primary operation in creating the estate, the 
 law gives them a secondary force, by implying aa agreement on 
 the part of the grantor to protect and preserve the estate so by 
 those words already created: as, if a man by deed demise land for- 
 years, covenant lies upon the word ' demise,' which imports or 
 makes a covenant in law for quiet enjoyment; or, if he grant land 
 by feoffment, covenant will lie upon the word ' (Jedi; ' " per Cur., 
 Williams v. Burrell, 1 C. B. 429. 
 
 '• Demise " covenants created by word. — By the word " demise " 
 two covenants are implied; Burnett v. Lynch, 5 B. & C. at p. 609: 
 Line V. Stephenson, 6 Sco. 447; S. C, 7 Sco. 69: Kean v. Strong, 
 " 9 Ir. L. R. 74; the one that the lessor has power to create the 
 term (Holder v. Taylor, Hob. 12; Fraser v. Skey, 2 Chit. 646); 
 tho other that the lessee shall have quiet enjoyment (Nokes's 
 Case, 4 Rep. 80b; Spencer's Case, 5 Rep. 16a; S. C, 1 Sm. L. C. 
 8th ed.; Style v. Hearing, Cro. Jac. 73; Iggulden v. May, 9 Ves. 
 at p. 330; Hall v. City of London Brewery Co., 2 B. & S. 737) 
 during such part of the term as shall elapse while the lessor's in- 
 terest" continues; Cheiny and Langley's Case, 1_ Leon. 179; 
 Sivan V. Stransham, or Searles, Dy. 257a; S. C, F. 
 [*423] *Moo. 74; And. 12; Benl. 150; and see Piatt, Gov. 46, 
 
 ■il; Adams v. Gibney, 6 Bing. 656. 
 • That they are not express covenants, see Smith v. Pocklington, 
 1 Cr. & Jer. 445, where it was held, that on a demise by A., the 
 legal, and B. the equitable owner, B. could not be sued in cove- 
 nant on an eviction. 
 
 "■Let.'' — That the word '"let," or any equivalent word, has the 
 same effect as "demise," see Hart v. Windsor, 12 M. & W. 68, 
 85, cited by Brett, J., in Mostyn v. West Mostyn Coal Co., 1 C. 
 P. D. at p. 152. 
 
 ''Give" ''Grant.'" — The old doctrine as to the covenants aris- 
 ing at law by the use of the words " give " and " grant " will be 
 found discussed at length by Mr. Butler, Co. Lit. 384a, note (1); 
 but these words, when used in a deed executed after the 1st Octo- 
 ber, 1845, do not imply any covenant, except so far as they may 
 do so by virtue of some statute; see 8 & 9 Vict. c. 106, s. 4. Mr. 
 Dart (V. & P. 5th ed., 562) says, "The object of this enactment 
 appears to have -been to prevent any general warranty of title 
 from arising by the use of the words 'give ' and 'grant;' and it 
 
 Kimpson r. Walker, 9 Vt. 191; '• grant, bargain and sell; " Hawk v. McCul- 
 lough, 21 111. 220; Bush v. Cooper, 20 Miss. .599; Dickson v. Desire, 23 Mo. 
 151; Gratz v. Ewalt. 2 Bin. (Pa.) 95; and other words of like import; Cranch 
 V. Fowle, 9 N. H. 222; Mack r. Patchin, 42 N. Y. 167. As to whether the 
 word "lease" is equivalent to "demise" there is diversity of opinion. It 
 is held to be so in Hamilton v. Wright, 28 Mo. 199; Maule v. Ashmead, 2 Pa. 
 St 482; Ross v. Dysart, 33 Pa. St. 452. Contra Lovering v. Lovering, 13 N. 
 H. 513; Tone v. Brace, 8 Paige Ch. (N. Y.) 597; Mayor v. Mabie, 13 N. Y. 
 160; Shetts v. Selden, 74 U. S. 416. 
 
 396
 
 COVENANT IMPLIED BY ASSIGNMENT. * 424 
 
 probably wonld not be held to interfere with the rule of law that 
 any- words of assurance operate as a covenant for quiet enjoy- 
 ment of the interest expressed to be assured as against the future 
 acts of the party making the assurance.'' The exceptions seem 
 to be the words '• grant, bargain, and sell," in bargains and sales 
 of hereditaments in Yorkshire registered under G Anne, c. 35, ss. 
 80 and 34, and 8 Geo. 2, c. 6, s. 85 (6); the word " grant" in a 
 conveyance by the promotors of an undertaking under the Lands 
 Clauses Act, 1845 (8 & 9 Vict. c. 18), s. 132, which is equivalent 
 to covenants for title unless limited by express covenant; and a 
 conveyance by a joint-stock company under 19 & 20 Vict. c. 47, 
 s. 46, which is to imply the ordinary covenants for title, unless 
 the implication be expressly negatived. 
 
 * Assignment implying covenant. — In some cases an [ * 424 ] * 
 assignment has been held to imply a covenant by the 
 assignor not to do any thing to prevent the assignee from having 
 the full benefit of the assignment. 
 
 Examples. — A. "sells, assigns, and transfers" to B. a debt 
 due to A. from C. ; held, that these words amounted to a covenant 
 by A. not to prevent B. from receiving the debt; Deering v. Far- 
 rington, 1 Mod. 113; S. C, 3 Keb. 304; Freem. K. B. 367. 
 
 A. & B. as co-partners assigned the stock-in-trade of, and the 
 debts due to, the partnership to C. ; at the date of the assignment 
 a bill of exchange belonging to the partnership was payable to 
 the order of A.; afterwards he made default in transferring it to 
 C. and incapacitated himself from doing so; held, that there was 
 an implied covenant by A. not to do anything in derogation of 
 his own grant, and that he had therefore committed a breach of 
 covenant; Atilton v. Atkins, 18 C. B. 249. See also Gerard v. 
 Lewis, L. R. 2 C. P. 305. 
 
 Assignment of an apprentice is a good covenant by the first 
 master with the second, that he shall serve his time with him, 
 though it is not an assignment by way of interest. Caister v. 
 Eccles, 1 Ld. llaym. 683. 
 
 See 2 Piatt on Leases, p. 40; Piatt, Gov. 468. 
 
 Rule 152. — Express covenants exclude implication. — Where a 
 deed contains express covenants, no implication of any other 
 covenants on the same subject-matter can be raised. See Rule 
 19, ante, p. 89. 
 
 ^^Demise," implied covenant negatived. — The implication of a 
 
 (b) These Acts arc rep(>uled l)y tlie Yorkshire KeKistrics Act, 18H4 (47 & 
 48 Vict. c. 54); amordofl t)y 48 Vict. c. 4. 
 
 397
 
 * 426 NO IMPLICATION WHERE EXPRESS COVENANTS. 
 
 covenant for quiet enjoyment from the word " demise " may be 
 rebutted by an express covenant for quiet enjoyment, even if it 
 be restricted; Nokes^s Case, 4 Rep. 80; Line v. Stephenson, 4 
 Bing. N. C. 078: S. C, 5 Bing. N. C. 183; 6 Sco. 447; 7 Sco. 
 69; Merrill v. Frame, 4 Taunt. 329; Stannard\. Forbes, 
 [ * 425 JO* Ad. & El. 572. See Nokes's Case, discussed Proctor 
 V. Johnson, J Buls. 2; S. C, 2 Brownl. 212; Cro. El. 
 809; Cro. Jac. 233; Yelv. 175. See 2 Piatt on Leases, 285. 
 
 'SS'o grant.'' — The implication of a covenant from the word 
 " grant " was rebutted by an express covenant in Clarke v. Sam- 
 son, 1 Ves. Sen. 100. 
 
 Contract to repair. — No implied contract to repair arises out 
 of the relation of landlord and tenant, where the tenant holds 
 under an express contract which provides for the very matter; 
 per Lord Denman, C. J., Standen v. Chrismas, 10 Q. B. at p. 141. 
 See Woodfall, L. & T. (12th ed.) 569. 
 
 Rule 153. — Agreement for deed containing covenants. — An 
 agreement under seal to execute a deed which ought to contain 
 certain covenants, operates as a covenant to perform such cove- 
 nants. 
 
 Examples. — A., being indebted to B., on simple contract, exe- 
 cuted a deed whereby he charged certain property with the pay- 
 ment of the debt, and agreed to execute such a mortgage of the 
 property, with " all powers, covenants, and clauses incidental 
 thereto," as B. should require; held, that the debt was converted 
 into a specialty, on the ground that the mortgage would contain 
 a covenant for the payment of the debt; Saunders v. Milsome, L. 
 R. 2Eq. 573. 
 
 Agreement by deed to execute a lease which should contain a 
 covenant to keep the premises in good and substantial repair, and 
 all other usual covenants, and the lessee covenanted to accept the 
 lease and execute a counterpart; held, in an action by the lessor, 
 that sums due for arrears of rent and dilapidations were specialty 
 debts; Kiddy. Boone, L. R. 12 Eq. 89. 
 
 It follows from Rule 21 (p. 93) that :— 
 
 Rule 154. — Construction against the covenantor. — 
 [ * 426 ] Ambiguovis words in a covenant are * to be taken most 
 strongly against the covenantor; Foivle v. Welsh, 1 B. 
 & C. at p. 35. 
 
 See also Barton v. Fitzgerald, 15 East, 530; Webh v. Plummer, 
 
 2 B. & Aid. 746; Barrett v. Bedford, 8 T. R. 602; per Bay ley, J., 
 
 Shrewsbury v. Gould, 2 B. & Aid. at p. 487; per Willes, J., Ruhery 
 
 V. Jervoise, 1 T. R. at p. 234; per Le Blanc and Bayley, J.J., 
 
 398
 
 EXCEPTION — PROVISO LIMITING LlAlilMTY. * 427 
 
 Love V. Pares, 13 East, at pp. 85, 86; Wardc v. Warde, Id Beav. 
 103. But this rule "must be qualified by the observation that a 
 due regard must be paid to the intention of the parties as collected 
 from the whole context of the instrument-,*' jter Lord Eldon, C. 
 J., Browning \. Wright, 2 Bos. & P. at p. 22. See also ^jer Lord 
 Ellenborough, C. J., Sickleniure v. Thintleton, 6 M. & S. at p. 12. 
 
 Rule 155. — " It is hereby agreed and declared " {c). — Where, in 
 a clause commencing "it is hereby agreed and declared," it is 
 stated that a person is to do a thing, he alone is bound to do it. 
 
 " It appears to me that in effect the words ' it is hereby agreed 
 and declared' operate thus ; they operate to show that what is 
 comprised in the clause of which these words are the commence- 
 ment, is what all parties intend and agree shall be done; and 
 whatever you find in the clause is agreed to be done by any given 
 party, it is an agi-eement that that party is to do it; but the party 
 who is to do the thing is the person who is alone bound to per- 
 form that agreement; " per Kindersley, V.-C, Eamsden v. Smith, 
 2 Drew. 30?, 308. See also Pordagev. Cole, 1 Wms. Saund. 319 
 (ed. 1871, vol. 1, p. 548); Wood v. Copper Miners, 7 C. B. 906; 
 Willoughby v. Middleton, 2 J. & H. 344. See also per Jessel, M. 
 E., Dawes v. Tredwell, 18 Ch. D. at p. 359. 
 
 Where a person by deed " declares " that he will do a thing, it 
 amounts to a covenant by him to do it; Richardson v. Jenkim, 1 
 Drew. 477 (see 482, 488). 
 
 * Rule 156. — Exception to covenant. — jxn exception [ * 427 ] 
 tj an absolute covenant is construed strictly. 
 
 Example. — AVhere a tenant in tail, with reversion in the 
 Queen, covenanted against the acts of persons except the Queen, 
 her heirs or successors, existentibus regibus vel reginis AngUa\ an 
 eviction by a patentee of the Queen was held to be a- breach of 
 the covenant; Woodroff \. Greenivood, Cro. Eliz. 518. 
 
 Rule 158. — Proviso limiting liability in covenant. — If there is 
 a personal covenant, followed by a proviso that the covenantor is 
 not to be liable under the covenant, the proviso is repugnant and 
 void; but where the proviso limits the personal liability under the 
 covenant, without destroying it, the proviso is valid; Fiirnirall v. 
 Coombes, 5 Man. & Gr. 736; S. C. 6 Scott, N. R. 522 (see yjer 
 Keating, J., L. li. 2 C. P. 186); Williams v. Hathaway, 6 Ch. D. 
 544. See Pollock on Contr. (8rd ed.), 119, n. (c); Addison on 
 
 (c) Btepost, chapter on Covenants to Skttlk, ai p. 501. 
 
 399
 
 * 428 PENALTY OR DAMAGES. 
 
 Contr. (8th ed. ), 185 (citing Re State Fire Insurance Co., 32 L. 
 J. Ch. 300), a case of a bill of exchange. 
 
 And " no evidence could exclude personal liability in the de- 
 fendants, if the written document itself makes them liable; " per 
 Byles, J., Kelner v. Baxter, L. R. 2 C. P. 182. 
 
 Effect of Penalty. 
 
 " There is a difference between covenants in general and cove- 
 nants secured by a penalty or forfeiture. In the latter case the 
 obligee has his election; he may either bring an action of debt 
 for the penalty and recover the penalty (after which recover} of 
 the penalty he cannot resort to the covenant, because the penalty 
 
 is to be a satisfaction for the whole); or if he does not 
 [ * 428 ] choose to go * upon the penalty he may proceed upon 
 
 the covenant and recover more or less than the penalty 
 toties quoties; " per Lord Mansfield, C. J., Lowe v. Peers. 4 Burr, 
 at p. 2228. 
 
 Penalty or Damages. 
 
 Rule 159. — Penalty or damages, question of construction. — The 
 question whether a sum named to be paid on non-performance of 
 a covenant is a penalty, or liquidated damages, depends on the 
 construction of the whole deed. 
 
 See 1 Swanst. Rep. 318, note; 2 Wh. & Tud. L. C. Eq. (5th ed.), 
 1123 et seq. See Mayne on Damages, 4th edit., p. 136,' where it 
 is said that " it is a question of law to be decided by the Judge 
 on the construction of the whole instrument," citing Sainter v. 
 Ferguson, 7 C. B. 727. 
 
 The use of the words " liquidated damages " or " penalty " in 
 describing the nature of the payment, is not conclusive; Gerrard 
 V. O'Reilly, 3 Dr. & War. 414;' A'em5Ze v. Farren, 6 Bing. 141; 
 Betts V. Burch, 4 H. & N. 506; and per Fry, J., Wallis v. Smith, 
 21 Ch. D. at p. 249; Dimeck v. Corlett, 12 Moore, P. C. C. 199: 
 and cases cited Kerr, Inj. 410; 2 Wh. & Tud. L. C. Eq. (5th ed. ), 
 1127; Fry, Sp. Perf. 55. 
 
 Sometimes the sum is stated to be " a penalty to be recovered 
 as liquidated damages: " Davies v. Penton, 6 B. & C. 216; Boys 
 V. Ancell, 5 Bing. N. C. 390 (case of an instrument not under 
 seal); Leggy. Harlock, 12 Q. B. 1015; or is called "penalty" 
 and "liquidated damages" in the same sentence: but this does 
 not affect the construction. 
 
 Observation.— Z)?/^erewce as to amount recoverable. — Where 
 the covenantee sues for compensation for breach of such a cove- 
 nant, ( 1 ) if the sum named is held to be a penalty he will recover 
 400
 
 WHEN STATED SUM IS PENALTY. * 430 
 
 such damages, be they more or less than the amount of the pen- 
 alty, as he has actually sustained, 8 & 9 Will. 3, c. 11, s. 8; .but 
 (2) if the sum named is held to be liquidated damages, he will 
 recover that sum without reference to the damages actually sus- 
 tained, as in this case the parties have themselves assessed the 
 damages; see Gainsford v. Griffith, 1 "Wms. Saund. 51 (edit. 1871, 
 vol. i. p. 67). 
 
 * Rule 160. — Same sum payable, on breach of every [ *'429 ] 
 covenant tvhether impoHaht or not. — ^\'here there are 
 covenants to do a number of things, and one and the same sum 
 is made payable on breach of any one covenant, whether import- 
 ant or unimportant, then the sum will be regarded as a penalty; 
 1 Wms. Saund. 58, n. (d), (ed. 1871, vol. i., p. 72). Lea v. 
 Whitaker, L. R. 8 C. P. 70; Magee v. Lavell, L. R. 9 C. P. 107; 
 Re Newman, 4 Ch. D. 724; Browne v. Phillips, 10 L. R. Jr. 
 212; but consider Wallis v. Smith, 21 Ch. D. 243. See Mayne 
 on Damages, 4th edit., p. 145. 
 
 Examples (1). — Where the stated sum was held to be 
 liquidated damages. — Rolfe v. Peterson, 2 Br. p. C. 430; Lowe 
 v. Peers, 4 Burr. 2225; Fletcher v. Dycke, 2 T. R. "32; Reilly v. 
 Jones, 1 Bing. 302; S. C, 8 Moo. 244; Leighton v. Wales, 3 M. 
 & W. 545; Green v. Price, 13 M. & W. 695; S. C, 16 M. & W. 
 346; Galesworthy v. Strutt, 1 Ex. 659; Atkyns v. Kinnier, 4 Ex. 
 776; Sainter v. Ferguson, 7 C. B. 716; Mercer v. Irving, El. Bl. 
 
 6 El. 563; Reynolds v. Bridge, 6 El. & Bl. 528; Sparroiv v. Paris, 
 
 7 H. & N. 594; Crux v. Aldred, 14 W. R. 656; Hinton v. Sparkes, 
 L. R. 3 C. P. 161; Catten v. Bennett, 51 L. T. 70; Lea v. Whit- 
 aker, L. R. 8 C. P. 70; Wallis v. Smith, 21 Ch. D. 243; Mex- 
 borough v. Wood, 47 L. T. 516. 
 
 Examples (2). — Where the stated sum was held to be a pen- 
 alty.— Ha/-d// V. Martin, 1 Br. C. C. 419 (note); S. C, 1 Cox. 26; 
 see the comments of Lord Eldon, C. J., 2 Bos. & P. at p. 352; Astley 
 V. Weldon, 2 Bos. & P. 346; Smith v. Dickenson, 3 Bos. & P. 
 630; Sloman v. Walter, 1 Br. Ch. 418; Harrison v. Wright, 13 
 East, 343; Davies v. Penton, 6B. &C. 216: Charringtonv. Laing, 
 6 Bing. 242; Kemble v. Fai-ren, 6 Bing. 141; Boys v. Ancell, 7 
 Scott, 364; 5 Bing. N. C. 390: Horner v Flint off, 9 M. & W. 
 678; Belts v. Burch, 4 H. «fe N. 506; Reindell v. Shell, 4 C. B. N. 
 S. 97; Magee v. Lavell, L. R. 9 C. P. 107; Bronme v. 
 Phillips, * 10 L. R. Ir. (Ex. D.) 212; Re Newman, 4 [ * 430 ] 
 Ch. D. 725. 
 
 Exception. —The Rule does not apply if the contract specify 
 the particular stipulation or stipulations to wbich the liriuidutod 
 
 26 INTKKl'KKTATION OF DKKUS. 401
 
 *431 SPECIFIC PERFORMANCE 
 
 damages are to be referred; per Tindal, C. J., Kemble v. Farren, 
 6 Bing. 147. 
 
 Specific Performance. 
 
 Covenant with penalty, or liquidated damages. — A question 
 sometimes arises whether a covenant to do or not to do a partic- 
 ular act, subject to a penalty or liquidated damages for omitting 
 or doing it, is to be construed as a covenant to do or not to do 
 that act, or only as a covenant that, if the act be omitted or be 
 done as the case may be, the penalty or liquidated damages shall 
 be paid; in other words, whether you can obtain specific perform- 
 ance or an injuuction to enforce or prevent the doing of the act, 
 or only recover the penalty, or liquidated damages, if it be omitted 
 or done. See the subject discussed in Fry on Specific Perform- 
 ance, Chap. 3, pp. 52 et seq. (2nd ed. ); where it is said (§ 115): 
 " The question always is, What is the contract ? — is it that one 
 certain act shall be done, with a siim annexed whether by way of 
 penalty or damages to secure the performance of this very act? 
 or is it that one of the things shall be done at the election of the 
 party who has to perform the contract, namely, the performance 
 of the act or the payment of the sum of money? " See also Joyce 
 on Doctrine and Principle of Injunctions, 86 et seq.\ Kerr on In- 
 junctions (2nd ed.), 409 et seq. 
 
 Rule 161. — When a covenant the observance of which is se- 
 cured by a penalty must be performed specifically. — If there be 
 a covenant with a penalty or liquidated damages to be paid on 
 breach of the covenant, the covenant is not to be broken ; but if 
 
 there be a covenant, with a provision that it is not to be 
 [ * 431 ] broken unless on payment of a penalty or * damages, 
 
 the covenant may be broken on payment of the penalty 
 or damages; Fry on Specific Performance (2nd ed.) 52 et seq. 
 
 " There are three classes of covenants : First, covenants not to 
 do particular acts, with a penalty for doing them, which are within 
 the statute 8 & 9 Will. 3, c. 11 (d); secondly, covenants not to 
 do an act, with liquidated damages to be paid if the act is done, 
 which are not within the statute;' and thirdly, covenants that an 
 act shall not be done unless subject to a certain payment; " per 
 Bramv/ell, B., Leghw. Lillie, 6 H. & N. at p. 171. 
 
 " The declaration sets out a covenant by the defendant that he 
 will not sell or carry away from the demised premises any manure, 
 &c., without the consent in writing of the plaintiff, under the in- 
 creased rent of £10 for every ton so carried away. Now there 
 
 (d) I.e., the damages for breacli must be determined by the jury. 
 402
 
 SPECIFIC PERFORMANCE. * 432 
 
 are various forms in which a covenant of this sort may be ex- 
 pressed; a man may covenant simply that he will not do such an 
 act, or that if he does he shall pay a penalty, or that if he does 
 any such act he shall pay liquidated damages. Had the covenant 
 been in either of these form&, it would have been substantially 
 a covenant not to do the act, with a subsequent covenant that if 
 he did it he should pay a penalty or liquidated damages. But 
 the covenant in this case is not in either of these forms. It is a 
 sin trie covenant, not two covenants, that the covenantor will not 
 remove manure, under an increased rent of £10 for every ton 
 carried away. The word ' rent ' points not only to the injury to 
 the covenantee, but to the benefit the covenantor may derive fi'om 
 doincr the act which is prohibited. It is on that ground, amongst 
 other reasons, that I think that the meaning is that the covenantor 
 may remove mauure if he chooses to pay the increased rent; " 
 per Wilde, B., Lcgh v. LilUe, 6 H. & N. at p. 173. 
 
 " The terms of the lease are, that the party will not do the act 
 under a penalty; therefore it is a covenant against doing 
 the act, and a stipulation that, * if he shall do it, he is [ * 432 ] 
 to pay a particular sum per acre. The general rule of 
 equity is, that if a thing be agreed upon to be done, though there 
 18 a penalty annexed to secure its performance, yet the very thing 
 itself must be done. If. a man, for instance, agree to settle an 
 estate and execute his bond for £600, as a security for the per- 
 formance of his contract, he will not be allowed to pay the for- 
 feit of his bond and avoid his agreement, but he will be com- 
 pelled to settle the estate in specific performance of his agree- 
 ment. So if a man covenant to abstain from doing a certain act, 
 and agree that if he do it he will pay a sum of money, it would 
 seem that he will be compelled to abstain from doing that act, 
 and, just as in the converse case, he cannot elect to break his en- 
 gagement by paying for his violation of the contract. This I 
 apprehend is the general rule of equity. It is so laid down by 
 Lord Hardwicke in Hoivard v. Hoj^kyns, 2 Atk. 371, and by Lord 
 Thurlow in Sloman v. Walter, 1 Bro. C. C. 418 : as far as relates 
 to settlements, the rule was established by ChilUner v. Cldlliiiery 
 2 Ves. Sen. 528, which was followed in the very imperfectly re- 
 ported case of Logav. v. Wienliolt, 1 CI. & Fin. Oil, and also in 
 Roper V. Bartholomew, 12 Pri. 790, and again in Hardy v. Martini, 
 1 Cox, 20. Now from all these cases it appears, that the question 
 for the Court to ascertain is, whether the party is restricted by 
 covenant from doing the particular act, although if he do it a 
 payment is reserved, or whether, according to the true con- 
 strutiocn of the contract, its meaning is, that the one party shall 
 have a right to do the act on payment of what is agreed upon as 
 an equivalent;" per Sugden, C., French v. Macale, 2 Dr. &. War. 
 274. 
 Examples where the covenant was to be performed spe- 
 
 403
 
 *433 SPECIFIC PERFORMANCE. 
 
 cifically. — Covenants in restraint of trade, Barret v. Blagrave, 
 5 Ves. 555; Hardy v. Martin, 1 Cox, 26; Clarkson v. Edge, 33 
 Beav. 227; Fox v. Scard, 33 Beav. 327; £zVd v. Lake, 1 H. & M. 
 Ill; Gravely v. Barnard, L. R. 18 Eq. 518; Jones v. Heavens, 4 
 
 Ch. D. 636 ; TFesf on v. Managers of Metropolitan District 
 [*433] Asylum, ^-8 Q. B. D. 387; S. C, 9 Q. B. D. 404; 
 
 Hoivardy. Woodward, 34 L. J. Ch. 47; as to building, 
 Coles V. Sims, 5 De G. M. & G. 1 (on app. from Kay, 56, where 
 the case is incorrectly stated); to grant a lease, Butler v. Powis, 
 2 Coll. 157; to settle land, Nandikey. Wilkes, Gilb. Eq. Rep, 114; 
 Chilliner v. Chilliner, 2 Ves. Sen. 528; Prebble v. Boghtirst, 1 
 Swanst. 309; Rojjer v. Bartholomew, 12 Pri. 797; to leave property 
 by will, Logan V. Wienholt, 1 CI. & Fin. 611; S. C, 7 Bl. N. S. 1; 
 to pay an annuity of variable amount as part of a family arrange- 
 ment, Jeudiuinew. Agate, S Sim. 129; not to "burn" the demised 
 premises, French v. Macale, 2 Dr. & War. 269; S. C, 1 Car. & 
 L. 459. 
 
 Examples where specific performance was not enforced 
 of a covenant the performance of which was secured by a 
 named sum. — Covenant in restraint of trade, Sainter v. Ferguson, 
 1 Mae. &. Gor. 286; to renew a lease, Magrane v. Archbold, 1 
 Dow, 107; not to plough pasture land. Woodward v. Gyles, 2 
 Vern. 119; Rolfe v. Peterson, 2 Br. P. C. 436. 
 
 See as to penalties and liquidated damages, Mayne on Dam- 
 ages, 4th edit. Chap. iii. pp. 132, et seq. 
 
 404
 
 LIABILITY WHETHER JOINT OR SEVERAL. * 435 
 
 * CHAPTER XXVIII. [*434] 
 
 COVENANTS WHETHER JOINT Oii SEVERAL. 
 
 Liability, luhether joint or several — Several liability under a cove- 
 nant joint in form — Liability under cov^enants implied in 
 law — Benefit of covenant tvhether joint or several — Where 
 one of several covenantees has no beneficial interest. 
 
 The liability on and benefit of covenants may be joint or several 
 or both (a). — If there are two or more covenantors, they may- 
 bind themselves jointly, or severally, or both jointly and severally; 
 in other words, the liability of the covenant may be either joint, 
 or several, or both joint and several. And if there are two or 
 more covenantees, the covenant may be entered into with them 
 jointly, or severally, or both jointly and severally; but in this case, 
 however the covenant may be framed, it cannot enure to the 
 benefit of the covenantees both jointly and severally. The ob- 
 ject of this chapter is to state whether the liability is joint, or 
 several, or both joint and several; and whether the benefit is joint 
 or several, in cases where the covenant is ambiguous, or where 
 the circumstances of the parties alter its apparent meaning. 
 
 Liability whether Joint or Several. 
 
 Rule 162. — Liability on express covenant when altered by cir- 
 cumstances. — Where a liability is created by covenant, 
 the liability will be construed as joint, or * several, or [*435] 
 both joint and several, according to 1 he express words (6), 
 
 {(i) As to the parties to sue, see Rules of the Supreme Court, 1883, Order 
 XVI., rule 1, and Order XVIII., rule G; as to the juirtics to be sued, see 
 Order XVI., rule 4; as to covenants in leases made since 1881, see the Conv. 
 Act, 1881, ss. 10, 11, 12. And as to covenants with iwo or more jointly 
 made since 1881, .see s. HO. 
 
 (/*) Where several covenantors covenant, each as to his o\vn acts and <Uv 
 faults only, the efTect is the same as if each had executed a sejiarate deed ou 
 the same parchment; Mailmmon'H Cose, Ti Rep. 23 («); S. C, sub uom. Matlin 
 ewmn v. Lydiale, Cro. El. 408, 470, 54G. 
 
 405
 
 * 436 LIABILITY WHERE JOINT OR SEVERAL. 
 
 where they are unambiguous; but where they are ambiguous, the 
 liability will depend upon the interests of the covenantors in the 
 property, or other circumstances of the parties. 
 
 Corollary. — Where a separate liability existed before the cove- 
 nant, a covenant joint only in form will be construed (formerly in 
 equity only) as separate also. See Leake on Contracts, p. 458. 
 
 Examples (1) where the express words created a joint 
 liability. — Joint covenant given by continuing partners to a re- 
 tiring partner for indemnity (Sumner v. Powell, 2 Mer. 30; S. 
 C, 1 Turn. & Russ. 423); or to pay specified sums to him; Wil- 
 mer v. Curry, 2 De G. & Sm. 347. Lease to partners of a house in 
 which they carried on their business, containing joint covenants 
 by them; Clarke v. Bickers, 14 Sim. 639. Lease to C, contain- 
 ing covenants by C. and D. to repair, &c., Copland v. Laporte, 8 
 
 A. & E. 517. See the remarks on Wilmer v. Currey by Jessel, 
 M. R., Beresford v. Browning, 20 Eq., at p. 576. 
 
 Examples (2) where the express words created several 
 liability. — ■'■'■ Conveyiiunt separatim ;"" Mathewson'S Case, 5 Rep. 
 225. A., as principal, and B., C, and D., as sureties, executed a 
 bond in the form: "We, A., B., C, and D., are held and firmly 
 bound to E. in the sum of £50 each, to be paid to E., his execu- 
 tors, &c. ; to which' payment we hereby bind us and each of us, 
 our and each of our heirs, executors, and administrators, and 
 every of them." Held, that the bond was the separate bond of 
 each obligor, binding each to pay the sum of £50; and therefore 
 the payment of £50 l3y B. was no answer to an action on 
 [ * 436 ] the bond against C. ; Armstro72g v. Cahill, 6 L. R. Ir. * 440, 
 where Harrison, J., distinguished Collins v. Prosser, 1 
 
 B. & C. 682, and relied on the word "each;" see also ex parte 
 Harding, 1 2 Ch. D. 557. 
 
 Examples (3) where the express words created a joint 
 and several liability. — ^^ Pro sect quoUbet eorum f^ Robinson 
 V. Walker, 1 Salk. 893; S. C, 7 Mod. 154. ",Se et quemlibet 
 eoruni;'' Bolton v. Lee, 2 Lev. 56; S. C, 3 Keb. 39, 50. "A^os 
 vel quemlibet nostrum ;''^ Hankinsony. Sandilands,! Brownl. 121. 
 "For themselves and either of them;" Enys \. Donnithorpe, 2 
 Burr. 1190. " For themselves and every of them;" May v. Wood- 
 ivard, Freem. K. B. 248. See also Church v. King, 2 My. & Cr. 
 220; Tippins v. Coates, 18 Beav. 401. 
 
 Examples of the corollary. — Liability joint in form held 
 
 several under the circumstances. — The deed of assignment of a 
 
 bankrupt contained a joint covenant by the assignees to account 
 
 for " such money as they or either of them " should receive. Held, 
 
 406
 
 LIABILITY UNDER COVENANTS IMPLIED AT LAW. * 437 
 
 that they were jointl)- and severally bound; Primrose v. Bromley, 
 1 Atk. 89. A partnership deed contained an agreement that on 
 the death or retirement of any partner the balance, as ascertained 
 at the last stocktaking, due to him should be repaid by instal- 
 ments by the surviving or continuing partners. Held, that the 
 liability of the partners was joint and several; Beresford v. 
 Browning, 20 Eq., 564; S. C, 1 Ch. D. 30. See 1 Lindley on 
 Partnerships, 369; Kendall v. Hamilton, 4 App. Cas. 504. 
 
 Liability under Covenants implied in Law. 
 
 If a demise be made by more than one person, the covenant im- 
 plied by the word "demise," ante, p. 422, for right to demise is 
 joint, while the covenant implied for quiet enjoyment is several; 
 Coleman v. Slierman, Comb. 163; S. C, 1 Salk. 137; S. C, Garth. 
 97, but they must' both actually demise: if one demise and the 
 other confirm, the coverant for right to demise is not joint; Smith 
 V. Pockington, 1 C. & J. 445; 1 Tyr. 309. 
 
 In Rex V. Great Wakering, 5 B. & Ad. 791, where a 
 * house was demised to two for a term at a rent, with a [ * 437 ] 
 covenant by them jointly and severally for payment of 
 taxes, &c., but there was no express covenant for payment of rent, 
 it was held that the rent was payable by the two jointly, though 
 one occupied the whole house and had paid the whole rent for 
 five years. 
 
 Benefit of Covenant tvhether Joint or Several. 
 
 Where the words of a covenant with several are clear and 
 unambiguous, the question whether the benefit of the covenant 
 is to enure to the covenantees jointly, or to each covenantee sepa- 
 rately, is to be determined solely by these words without refer- 
 ence to the interests of the covenantees in the subject-matter of 
 the covenant; but where the words are ambiguous the following 
 rule of construction is applied: — 
 
 Rule 163. — Benefit of covenant joint or several according to 
 interest of covenantee. — Where a covenant with several covenantees 
 is 80 expressed as to render it doubtful whether the benefit of it 
 is to enure to them jointly or to each of them separately, the 
 benefit will enure to them jointly or to each of them separately, 
 according as their interest in the subject-matter of the covenant 
 is joint or several, but it will not enure to the benefit of them 
 both jointly and severally. See Leake on Contracts, 457. 
 
 Observation. — By apt words, distinct covenants may be 
 
 407.
 
 * 439 BENEFIT OF COVENANT WHETHER JOINT OR SEVERAL. 
 
 created, one with the covenantees jointly, and the other with each 
 of them separately. See per Kolfe, B., Keightley v. Watson, 3 
 Ex. at p. 726; and per Parke, B., Bradbufne v. Botfield, 14 M. 
 & W. at p. 572. 
 
 Rule is one of construction not of law. — It was formerly sup- 
 posed to be a rule of law that the covenant must be taken as 
 joint or several according to the interest of the covenantees; see 
 Slingsby's Case, 5 Eep. 186; Eccleston v. CUpsham, 1 Wms. 
 
 Saund. 153 (vol. i. p. 162, ed. 1871); but the true doc- 
 [ *438] trine which was first *laid down by Mr. Preston (Shep. 
 
 Touch. 166), is that the rule is one of construction 
 
 only. 
 
 "I think the rule is plain and certain, and requires no authority; 
 it is correctly stated by Mr. Preston in the passage in Shep. 
 Touch, (p. 166). Where the words of a covenant are in their 
 nature ambiguous, so that they may be construed either way, 
 then the deed in which they are inserted supplies the mode of 
 their construction. If it exhibit a several interest in the parties, 
 you may construe it as a several covenant, and vice versa. But 
 there is no rule to say that words which are expressly a joint 
 covenant by (c) several persons shall be construed as a several 
 covenant, unless there is something to lead to that construction. 
 Where there are several parties, if the interest is joint, the cove- 
 nant is construed as a joint covenant. If a party covenants with 
 A. & B. to do something forB., afid the words themselves are 
 otherwise free from ambiguity, it must be a joint covenant;" per 
 Abinger, C. B,; Sorshie v. Park, 12 M. & W. at p. 156; S. C, 13 
 L. J.^Ex. 9. • 
 
 "I think the correct rule is laid down by Gibbs, C. J., in 
 James v. Emerij (5 Price, 533; S. C, 2 J. B. Mo. 195), with the 
 qualification stated by Mr. Preston in the note in Shep. T. 166. 
 That rule is that a covenant will be construed to be joint or sev- 
 eral according to the interest of the parties appearing upon the 
 face of the deed, if the words are capable of that construction; 
 not that it will be construed to be several by reason of several 
 interests if it be expressly joint;" per Parke, B., Sorshie \. Park, 
 12 M. & W. at p. 158. * 
 
 In Keightley v. Watson, 3 Ex. 721; S. C, 18 L, J. Ex. 339; 
 Pollock; C. B., says, "I consider that the inquiry really is as to the 
 true meaning of the covenant, at the same time bearing in mind 
 the rule — a rule which I am by no means willing to break in 
 ijpon — that the same covenant cannot be treated as joint or sev- 
 eral at the option of the covenantee. If a covenant 
 [ * 439 ] be so constructed * as to be ambiguous, that is, so as to 
 serve either the one view or the other, then it will be 
 joint, if the interest be joint, and it will be several if the inter- 
 
 (c) Sic, but the context shows that " with " is meant. 
 
 408
 
 BENEFIT OF COVENANT WHETHER JOINT OR SEVERAL. * 440 
 
 est be several. On the other hand, if it be in its terms unmis- 
 takably joint, then, though the interest be several, all parties 
 must be joined in the action. So, if the covenant be made 
 clearly several, the action must be several, though the inter- 
 est be joint. It is a question of construction." In the same 
 case Parke, B. (at p. 722) says: — "The rule that covenants are 
 to be construed according to the interest of the parties, is a rule 
 of construction merely, and it cannot be supposed that such a 
 rule was ever laid down as could prevent parties, whatever 
 words they might use, from covenanting in a different manner. 
 It is impossible to say that parties may not, if they please, use 
 joint words, so as to express a joint covenant, and thereby to ex- 
 clude a several covenant, and that, because a covenant may relate 
 to several interests, it is therefore necessarily not to be con- 
 strued as a joint covenant. If there be words capable of hco 
 constructions, we must look to the interest of the parties which 
 they intended to protect, and construe the words according 
 to that interest." And Eolfe, B., at p. 726, says, " It appears 
 to me that Mr. Preston's suggestion was perfectly well founded, 
 that the rule in Slingsby's Case (5 Rep. 186) was not a rule of 
 law but a mere rule of construction." See further on this point, 
 1 "Wms. Saund. ed. 1871, p. 165, note (c) to Eccleston v. Clips- 
 ham; Haddon v. Ayres, 1 El. & El. 118; Bradburne v. Bot field, 
 14 M. & W., at p. 572; Beer v. Beer, 12 C. B., at p. 78, per 
 Maule, J. 
 
 Examples (1) where the covenants enured to the benefit 
 
 of the covenantees jointly. — Benefit joint. — Agreement under 
 seal by tiddlers that they would not play asunder, and they were 
 bound in £20 each, omnibus et cuilibet eorum; and one only 
 brings an action for breach of the covenant. Held, that all 
 ought to have joined, as the interest was joint; Spencer v. Durant, 
 Comb. 115; S. C, 1 Show. 8. 
 
 Action of covenant by the herald painters, et pro "^quo- [ * 440 ] 
 libet et singulis eorum, that, they should bring their work 
 to a certain place, and that the money paid for such work, when 
 it should be received, should be brought to the aforesaid place 
 and divided between them in certain parts and proportions. 
 Action by all the others against one who did not bring his work 
 to the appointed place. Held, that, the interest being joint, the 
 action was well brought by all; Saunders y. Johnson, Skin. 401, 
 
 Covenant with L. and B., their heirs, executors, administrators, 
 and assigns, to pay to L. andB., their executors, «&c., one annuity 
 or yearly sum of £30 in the shares and proportions following, 
 viz., the sum of £15, being one moiety of the annuity to L., his 
 executors, &c., and the sum of £15, the remaining moiety, unto 
 B., his executors, &c., to bo respectively paid quarterly. The 
 powers for securing the annuity were given to L. and B. jointly. 
 
 409
 
 * 441 BENEFIT OF COVENANT SEVERAL. 
 
 There was a joint power to them to enter up a joint judgment, 
 and a joint power to sell certain stock. The annuity was redeem- 
 able on payment of a certain sum to L. and B., their executors or 
 administrators. In an action brought by L. alone for his share 
 of the annuity; held, that the covenant was a joint covenant, and 
 that the interest in the annuity was joint, and that L. could not 
 sue alone; Lane v. Dnnkwater, 1 Cr. M. & R. 599; S. C, 5 Tyr. 40. 
 F and W. demised land to the defendant, who covenanted with 
 F. and W., their heirs, executors, &c., to repair, &c. F. died, and 
 bis heir brought an action for breaches of covenant committed 
 since F.'s death. Held, that W. ought to have joined in the 
 action; Foley \- Addenbrooke, 4 Q. B. 197. 
 
 Demise by persons who, on the face of the lease appeared to be 
 tenants in common; covenants by the lessees with the lessors "and 
 each and every of them, their and every of their heirs, executors, 
 administrators, and assigns, to repair, &c." He Zd, that the benefit 
 of the covenants was joint and not several; Bradhurne v. Bot- 
 
 field, 14 M. & W. 559. 
 [*441 ] * Demise by tenants in common, "according to their 
 several estates," the lessees covenanting with them " and 
 their respective heirs and assigns " to repair. Held, that the 
 benefit of the covenant was joint and not several; Thompson v. 
 Hakewell, 19 C. B., N. S. 713. 
 
 Covenant by A. "with B., and also as a distinct covenant with 
 C." to pay interest on money advanced by B. as C.'s trustee. 
 Held, that both B. and C. ought to sue for breach of covenant; 
 Hopkinson v. Lee, 6 Q. B. 9(34. 
 
 See also Levy v. Sale, 37 L. T. 709; Anderson v. Martindale, 1 
 East, 497. 
 
 Examples (2) where the covenants enured to the benefit 
 of the covenantees severally.— -Bewe^^ several. — A. and B. cove- 
 nant with C. to sell land to him. " Item, it is agreed between 
 the parties " tjiat C. shall pay to A. so much money. On non- 
 payment of the purchase-money, an'action was brought by A. and 
 
 B. Held, that it ought to have been brought by A. only; Tippet 
 V. Hairkey, 3 Mod. 263. 
 
 Covenant with A. and B. to receive the rents due to A. and B. 
 and to pay one moiety to each of them. Held, that A. could 
 bring an action for his moiety without B. ; Lilly v. Hodges, 8 Mod. 
 166. 
 
 Agreement under seal by tenants in common to sell land. Cove- 
 naufby the purchasers " with the vendors and each of them, their 
 and each of their executors, &c.," to pay the purchase-money to 
 the vendors, their executors, &c., in the proportions following, that 
 is to say, &c." Held, that interest of the covenantees being sev- 
 eral, the covenant was several; Jarnes v. Emery, 8 Taunt, 245; S. 
 
 C, 5 Pr. 529. 
 
 410
 
 BENEFIT OF COVENANT SEVERAL. * 443 
 
 By deed reciting the grant of one annuity to A. and of another 
 annuity to B., C. covenanted with A. and B., their executors, &c., 
 to pay the annuities or either of them if the grantor should make 
 default. Held, that the covenant being for the payment of a dis- 
 tinct annuity to each of the covenantees, one might sue 
 without the * other; Withers v. Bircham, 3 B. & C. 254; [ *442] 
 
 5. C, 5 Dowl. & Ky. 106. 
 
 Covenant by the master of a vessel with the part owners to pay 
 certain monies to them "and to their and every of their several 
 and respective heirs, executors, administrators, and assigns," at 
 a certain banker's, " and in such shares and proportions as were 
 set against their several and respective names." Held, that their 
 interests being separate, they must sue separately; Servante v, 
 James, 10 B. & C. 410. 
 
 By deed, reciting four several contracts for purchase of land 
 from different owners, the defendant covenanted with each of the 
 owners to complete the contractv Held, that one of the vendors 
 alone might bring an action on the covenant; Poole v. Hill, G M. 
 
 6. W. 83o. 
 
 By deed reciting that the owners of a colliery proposed to 
 divide it into a certain number of shares, and an agreement for 
 sale to the parties of the third part, of so many of the shares re- 
 spectively as were set opposite their respective names, the owners 
 covenanted with each of the purchasers, their executors, &c., to 
 show a good title. Held, that the interest of each covenantee was 
 distinct, and therefore that he could bring his action for breach 
 of covenant without the others; Mills v. Ladbroke, 7 Sc. N. R. 
 1005; S. C, 7 M. & Gr. 218. 
 
 By deed reciting that A. had agreed to purchase land from the 
 plaintiff, and to sell it to the defendants at a certain price, and 
 containing covenants to that effect, the defendants covenanted 
 with the plaintiff, and as a separate covenant with A., " to pay to 
 the plaintiff, or to A., in case the plaintiff shall then have been 
 paid his purchase-money," the unpaid part of the purchase on a 
 certain day, and to pay interest in the meantime to the plaintiff. 
 Held, that the plaintiff' might sue without A. in respect of inter- 
 est; Keightley v. Watson, 3 Ex. 716; S. C, 18 L. J., N. S., Ex. 
 339. 
 
 Contract not under seal. — The rule was applied to the con- 
 struction of an agreement not under seal in Pugh v. 
 * Stringfield, 3 C. B., N. S., 2; S. C, 4 C. B., N. S., [*443] 
 364. 
 
 Rule 164. — Where one covenantee has no interest. — A cove- 
 nant with two or more, or with two or more and each and every 
 of them, where one of them has no beneficial interest in the sub- 
 
 411
 
 * 444 WHERE ONE COVENANTEE HAS NO BENEFICIAL INTEREST. 
 
 ject matter of the covenant, will be construed as a covenant with 
 them jointly, and the benefit of it will survive. 
 
 Examples.^Indenture of covenants between A. and B., of the 
 one part, and C, of the other part; and (inter alia) it is agreed 
 between the parties that C. shall enter into a bond to pay a cer- 
 tain sum to A. On an action brought by the administrator of A. 
 for breach of covenant; held, that he could not maintain it, as the 
 benefit of the covenant survived to B. ; Rolls v. Yate, Yelv. 
 177; S. C, 2 Brownb. 207; S. C, sub nom. Yate v. Roules, 1 
 Buls. 25. 
 
 Covenant with A. and also with B., to pay an annuity to A. 
 Held, that on the death of A. the legal interest in the covenant 
 survived to B., and that the executor of A. could not siie; Ander- 
 son V. Martindale, 1 East, 497; Lord Kenyon, C J., said 
 (p. 501): — "Though the benefit were only to one of them, yet 
 both had a legal interest in the performance of it; and therefore 
 the legal interest being joint during the lives of both, on the 
 death of one, it survived to the other." 
 
 Covenant by lessee with A. and B., and their respective execu- 
 tors, administrators, and assigns, aijd also with C, his executors, 
 administrators, and assigns, to repair; A. had no legal interest in 
 the land. Held, that the benefit, of the covenant enured to A., 
 B., and C. jointly, and that after the death of A., B. and C. might 
 join in an actioQ on 'the covenant; Wakefield v. Brotcn, 9 Q. B. 
 209. See Bradburne v. Boifield, 14 M. & W. 559. 
 
 Lease by T., tenant for life, of the first part; R., a receiver ap- 
 pointed by the Court of Chancery, of the second part; 
 [ * 444 ] and H. of the third part, of certain premises * to H., 
 for a term of years; covenants by H. with R., and other 
 the receiver or receivers for the time being, and to and with such 
 other person or persons as for the time being should be entitled 
 to the freehold or inheritance, or to the rents and profits of the 
 said premises, and to and with every of them." Held, that an 
 action for breaches of covenant by H. during T.'s lifetime could 
 not be brought by T.'s executor, but that it must be brought by 
 the receiver and freeholder for the time being jointly; Southcote 
 V. Hoare, 3 Taunt. 87. 
 
 412
 
 DEPENDENCY OF COVENANTS, QUESTION OF CONSTRUCTION. * 445 
 
 * CHAPTER XXIX. [ * 445 ] 
 
 MUTUAL COVENANTS. 
 
 Covenants dependent and independent distinguished: Condition 
 precedent : Whether covenants are precedent is a question of 
 construction : Causes of dependency : Dependency oicing to 
 time fixed for performance of covenants : Covenant by de- 
 fendant to he performed (1) before, (2) after, (3) simultane- 
 ously ivith the covenant by plaintiff: Dependency arising 
 from nature of covenants : Covenant by plaintiff the whole 
 or 2')art only of the consideration for the covenants by the 
 defendant: Clauses introduced by participles or the icords 
 " To be:' 
 
 Covenants dependent and independent distinguished. — Where a 
 deed contains mutual covenants a question of great nicety arises — 
 viz., Are the covenants dependent or independent? In other 
 words, can one of the parties bring an action against the other 
 for breach of covenant, without having pei'formed his own cove- 
 nant? The question generally arises as a point of pleading, but 
 the answer to it depends entirely on the construction of the 
 deed.'- 
 
 ^^ Covenants are dependent or independent according to the intention oi 
 the parties, and technical words will ahvaj's give way to such intention. 
 Bean c. Atwater, 4 Conn. 3; Rowland r. Leach, 11 Pick. (Mass.) 154; Gard- 
 ner r. Cosson, 15 Mass. 300; Barruso v. ^ladan. ;2 Johns. (N. Y.) 145; Tomp- 
 kins V. Elliott, 5 Wend. (N. Y.) 496; Dnrggiiis r. Hhaw. 6 Ired. L. (N. C.) 
 46; Todd v. Summers, 2 Grat. (Va. I 1()7; Brockenhrongh v. Ward, 4 Kand. 
 (Va.) 3.52; Adams v. Williams, 2 W. & S. (Pa.) 227; Wright v. Smith, 4 W. 
 & S. (Pa.) 527; McCrelish v. Churchman, 4 Rawle (Pa.), 20. Covenantsmay 
 be wholly independent though made by the same parties, included in the 
 same instrument, and relating to the same subject. In that case they are 
 separate contracts, and each party may then have an action against the other, 
 whether lie has ])erf()rmed his own agreement or not. Goldsborough v. (^rr, 
 8 Wheat. (U. S. ) 217. Whether the covenant is inde])cndent or not will be 
 determined according to the fair intention of the ])arties, as shown by the 
 language of the instrument. An intention to make a slii)iilation acoiulition 
 prt-cedent must be clearly expres.sed. Kobin.son v. Harbour. 42 .Miss. 7!)5. 
 When the covenants are independent either party may recover without show- 
 ing a compliance with the stipulation on his part. Bean i'. Atwuter, 4 Conn. 
 
 413
 
 * 447 DEPENDENCY OF COVENANTS, QUESTION OF CONSTRUCTION. 
 
 Condition precedent. — The relation between covenants, one of 
 which is dependent on the other, is sometimes expressed by say- 
 ing that the perfoi'mance of the one is a condition precedent to 
 liability under the other. 
 
 " In contracts containing executory considerations, or mutual 
 promises, that is to say, in which a promise on the one side is 
 given in consideration of a promise on the other, the mere pro- 
 mise and not the performance of it, constitutes the consideration, 
 strictly so called; and the obligation of the one promise 
 r *446] may be quite independent * of the performance of the 
 other. — Whether covenants are independent is a question 
 of construction. — But it may appear upon the correct construction 
 of the terms of such mutual promises, or from the connection of 
 their matter, that the obligation of the one promise is, expressly 
 or impliedly, conditional upon the due performance of the other; 
 and then the performance of the promise, constituting the ex- 
 ecutory consideration, is a condition precedent to the liability to 
 perform the other promise; in the latter case, the promises are 
 not only mutual bvit also dependent: in the former case, they are 
 independent in regard to performance." Leake on Contracts, 
 Part 3, ch. 2, pp. 647 et seq. See 2 Sm. L. C. (8th ed.) 14. 
 
 " The rule has been established by a long series of decisions 
 in modern times, that the question, whether covenants are to be 
 held dependent or independent of each other, is to be determined 
 by the intention and meaning of the parties as it appears on the 
 instrument, and by the application of common sense to each par- 
 ticular case; to which iatention, when once discovered, all tech- 
 nical forms of expression must give way The parties to 
 
 a contract may undoubtedly, if they think proper, agree that the 
 ricrht of one party to maintain an action against the other shall 
 be conditional, and shall depend on the plaintiff's strict perform- 
 ance of the covenants entered into by himself; and if words are 
 used in the contract so precise, express, and strong, that such in- 
 tention, and such intention only, is compatible with the terms 
 employed, however inconsistent it may be with general principles 
 of reasoning, a Court can only give effect to such dec'ared in- 
 tention of the parties. The only question in every particular 
 case is, whether such intention is so declared;" per Tindal, C. 
 J., Staversw. Curlin{f, 3 Bing. N. C. 368; and see per Blackburn, 
 J., Bettini v. Gye, 1 Q. B. D., at p. 187, and in Ghrives v. Legg, 9 
 Ex. 709, Parke, B. (at p. 716), speaks of "the numerous cases in 
 which it has been laid down that the general I'ule is to construe 
 covenants and agreements to be dependent or independ- 
 [ * 447 ] ent according to the intent and meaning of the * par- 
 
 3; Payne r. Bettisworth, 2 A. K. Marsh. (Ky.^l 429; Manning v. Brown, 10 
 Me. 49; Morrison r. Galloway, 2 Har. & J. (Mel.) 467; Benson v. Hoobs, 4 
 Har. & J. (Md.) 285; Gibson v. Gibson, 15 Mass. 112; Obermeyer v. Nichols, 
 6 Binn. (Pa.) 164. 
 
 414
 
 DEPENDENCY OF COVENANTS, QUESTION OF CONSTRUCTION. * 448 
 
 ties to be collected from the instrument, and, of course, to the 
 circumstances legally admissible in evidence with reference to 
 wbicli it is to be construed." 
 
 " The clearest words of condition must yield to the prominent 
 intention of the parties as gathered from the whole instrument;" 
 per Byles, J., London Gcls Light Co. v. Chelsea Vestry, 8 C. B. 
 (N. S.) at p. 239. 
 
 " There are no precise technical words required in a deed to 
 make a stipulation a condition precedent or subsequent, neither 
 doth it depend upon the circumstance whether the clause is placed 
 prior or posterior in the deed, so that it operates as a proviso or 
 covenant. For the same words have been construed to operate 
 as either the one or the other, according to the natm-e of the 
 transaction;" pe7* Ashhurst, J., Hotham v. East India Co., 1 T. 
 E. 645. 
 
 " The dependence or independence of covenants is to be col- 
 lected from the evident sense and meaning of the parties; and, 
 however transposed they may be in the deed, their precedency 
 must depend on the order of time (a) in which the intent of the 
 transaction requires their performance;" per Lord Mansfield, C. 
 J., Kingston v. Preston, cited 2 Doug. 689. And see per Lord 
 Kenyon, C. J., Porter v. Shepherd, 6 T. K. at p. 668, cited by 
 Lord Chelmsford in Roberts y. Brett, 11 H. L. C. at p. 354. 
 
 " I do not think that the rules which are laid down as to the 
 construction of agreements in which there are cross contracts, in 
 order to see whether these cross contracts are dependent or inde- 
 pendent, are of much assistance where, as here, the question is 
 whether a matter is expressly made a condition precedent. . . 
 . . All agree that the question is, What is the intention to be 
 collected from the words?" per Lord Blackburn, London Guar- 
 antie Co. v. Fearnley, 5 App. Cas. at p. 917. In that case the 
 plaintifP brought an action to recover the amount of a guar- 
 antie policy against embezzlement by a servant of the 
 * plaintifP. The policy expressly stated that it was "sub- [ *448 ] 
 ject to the conditions herein contained, which shall be 
 conditions precedent to the right to recover under this policy." 
 Among the conditions was one that tbe employer should, if re- 
 quired, prosecute the servant for any wrongful act covered by the 
 policy. The defendants pleaded that they had required jjlaintift" 
 to prosecute, but he has not done so. Lords Blackburn and Wat- 
 son held that the effect was that all the conditions were expressly 
 made conditions precedent. Lord Selborue, C, dissented on the 
 ground that the |condition in question was not in its nature pre- 
 cedent. 
 
 Causes of dependency. — Covenants may be dependent, either 
 owing to the time when they have to be performed, or owing to 
 
 (a) Bat see Rules 168 and 169, post, p. -160. 
 
 415
 
 * 449 DEPENDENCY ARISING FROM TIME FOR PERFORMANCE. 
 
 their nature, or subject matter. Dependency as caused by time 
 is treated of in Rules 165, 166, and 167; and as caused by the 
 nature of the covenants, in Kules 16S and 169. 
 
 Dependency oiving to the Time fixed for Performance. 
 
 If A. be the thing covenanted to be done by A., and B. the 
 thing covenanted to be done by B., three cases may occur: first, 
 the time for doing A. .may, be before the time for doing B.; sec- 
 ond, the time for doing A. may be after the time for doing B.; 
 third, A. and B. may have to be done simultaneously. 
 
 Rule 165. — Where time for thing to be done by defendant may 
 happen before thing to be done by plaintiff (a). — If a time fixed 
 for doing Ai, which must, or may, happen before B. ought to be 
 done, B. can bring an action against A. for not doing A. without 
 previously doing B. ; Piatt on Cov. 95 et seq. 
 
 This rule is stated in the notes to Pordage v. Cole, 1 Wms. 
 Saund. 320, note 4 (p. 551, ed. 1871), as follows: "If a 
 [ * 449] day be appointed for payment of money, or *part of it 
 or for doing any other act, and the day is to happen, or 
 may happen, before the thing which is the consideration of the 
 money, or other act., is to be performed, an action may be brought 
 for the money, or for not doing such other act before perform- 
 ance; for it appears that the party relied upon his remedy, and 
 did not intend to make the 2)eiforma7ice a condition precedent: 
 and so it is where no time is fixed for the performance of that 
 which is the consideration for the money or other act." 
 
 In Roberts v. Brett, 18 C. B. 561, at p. 573, Jervis, C. J., after 
 citing this rule (as stated in the notes to Pordage v. Cole), says: 
 " But, after all, that rule only professes to give the result of the 
 intention of the parties: and where, on the whole (b), it is ap- 
 parent that the intention is that that which is to be done first is 
 not to depend upon the performance of the thing that is to be 
 done afterwards, the parties are relying on their remedy, and not 
 on the performance of the the condition; but where you plainly 
 see that it is their. intention to rely on the condition and not on 
 the remedv, the performance of the thing is a condition prece- 
 dent;" S. C. 25 L. J. C. P. 280; 11 H. L. C. 337. 
 
 " Foj\" — " When one promises, agrees, or covenants to do one 
 thing for another, there is no reason he should be obliged to do 
 it till that thing, for which he promised to do it, be done; and the 
 word ' for ' is a condition precedent in such cases. But upon this 
 
 (a) Deed poll. — As to the distinction where the defendaut's covenants are 
 contained in a deed poll, see Lock v. Wright, 1 Str. 569; S. C. 8 Mod. 40. 
 (6) Sic, in L. J. "whole instrument." 
 
 416
 
 DEPENDENCY ARISING FROM TIME FOR I'ERFORMANCi:. * 451 
 
 head some diversities are to be observed. First, if there be a day 
 set for the payment of money, or doing the thing wbich one 
 promises, agrees, or covenants to do, for another thing, and that 
 day happens to incur before the time the thing, for which the 
 promise, agreement, or covenant is made, is to be performed by 
 the tenor of the agreement; there, though the words be 'that the 
 party shall pay the money,' or, ' do the thing for such a thing,' or, 
 ' in consideration of such a thing,' after the day is past 
 the other shall have an action for the money or * other [ *450] 
 thing, although the thing, for which the promise, agree- 
 ment, or covenant was made, be not performed; for it would be 
 repugnant there to make it a consideration precedent; and, there- 
 fore, they are in that case left to mutual remedies, on which, by 
 the express words of the agreement, they have depended. Vide 
 48th Ed. 3, 2, 3, cited in UghtrecVs Case, 7 Rep. 10 b. (a), where 
 the diversity is taken when there are mutual remedies and not: 
 it is thus put in that book: Sir E. Pool covenants with Sir R. Tol- 
 celser to serve him with three esquires in the wars of France. 
 Sir R. Tolcelser covenants, in co)isideration of those services, to 
 pay him so much money; and there it is said, action will lie for 
 the money without any services performed. But if you look into 
 the book at large, you will find it was upon the diversity which I 
 have taken; for the Case in 48th Ed. 3, 2, 3 is, R. PooZ covenants 
 with R. Tolcelser to serve him with three esquires in the wars of 
 France, and R. Tolcelser covenanted with him to pay him so much 
 for the service; and it was further agreed, that twenty marks 
 of the money should be paid in England, at a day certain, before 
 they went for France, and the rest by quarterly payments, which 
 might likewise incur before the service; and upon action brought 
 by Sir R. Pool, it was objected that the service was not performed; 
 but there was no room for that objection upon the diversity which 
 I have taken, the money, by the agreement, being made payable 
 at a dav certain, before the service was to have been performed; " 
 ver Holt, C.J., Thorp v. Thorj), 12 Mod. 460: S. C, 1 Ld. Ray. 
 662. 
 
 " It has long been the practice of companies insuring against 
 tire to incorporate in their policies various sti|Mtlations for mat- 
 ters to be done by the asstired making a claim before the com- 
 pany is to pay them, and (as the remedy by action for 
 not complying with these stipulations * would not afford [ * 451 ] 
 them any protection), to make the fulfilment of those 
 conditions a condition precedent to their obligation to ])ay. . . . 
 In the present case ... so far as any of their stipulations are 
 
 (a) See Piatt on Covenants, 96: who says, " The ca.se in the Y. B. is inao 
 curately stated by Lord Coke. . . . It appears in tlio Y. P>. tliat tlic cove- 
 nant was tliatlialf the nioncy was to be paid in I^iii^laiid before (bey went to 
 Franeo: the ])riiiei])le tlierefore of tlial ease a;:rees witii (lie doctrinu of Holt 
 in Thorpe v. Thorpe, as is observed by Iiiin in 1"2 Mod. KJl." 
 
 27 IXTKUI'RETATION OK DKKDS. 417
 
 *452 DEPENDENCY ARISING FROM TIME FOR PERFORMANCE. 
 
 for something to be dene preliminary to the completion of the 
 proof satisfactory to the directors, from which completion of proof 
 the time of the payment is to run, I think it is not disputed that 
 they have effected their object. But such stipulations as relate 
 to things to be done after payment is due are not, and cannot be, 
 conditions precedent:" »er Lord Blackburn, London Guarantie 
 Co. V. Fearnley, 5 App. Gas. 915-16. 
 
 " When the parties to a contract make a stipulation in which 
 nothing is expressed as to time, and which might, according to 
 its own terms, be fulfilled either within or after the period dur- 
 ing which it could operate as a condition precedent, and the par- 
 ties then go on to declare that it shall be a condition precedent, 
 I think the declaration must, prima facie, be held to be a suffi- 
 cient expression of their intention to limit the time of perform- 
 ance to the antecedent period;" per Lord Watson, ib. at p. 920. 
 
 Examples. — Agreement under seal that B. shall pay A. a sum 
 of money for his lands on a certain day, but no day was fixed for 
 the conveyance. Held, that A. might bring his action for the 
 money before conveyance: Pordage v. Cole, 1 Wms. Saund. 319 
 (p. 548, ed. 1871). 
 
 Agreement under seal by A. to purchase, and by B. to sell cer- 
 tain premises, and A. thereby covenanted to pay on or before a 
 fixed day, as the consideration of the sale, a certain sum with in- 
 terest till completion. Held, that B. might sue for the purchase- 
 money without previously tendering a conveyance: Mattock v. 
 Kinglake, 10 Ad. & El. 50: S. C. 2 Per. & D. 343. 
 
 Covenant by defendant that within six months from the passing 
 of a proposed railway bill, and before the company should enter 
 the plaintiff's land, except for certain specified purposes, he 
 would pay to plaintiff £4,000 for the purchase of cer- 
 [*452] tain land; and covenant by plaintiff, that, *on payment 
 of the said sum of £4,000 with interest, after the expi- 
 ration of six months from the passing of the bill he would convey 
 the land. Held, that plaintiff could sue for the money before 
 conveying the land; Sibthorp v. Brunei, 3 Ex. 826. See also The 
 Thames Haven Dock and Bailway Company v. Brymer, 5 Ex. 
 696. 
 
 B. covenanted to pay seamen's wages yearly, and "in considera- 
 tion thereof, A. covenanted to pay B. £42 every month." Held, 
 that B. might bring an action for the £42 without showing that 
 he had paid the wages; Russen v. Coleby, 7 Mod. 236. 
 
 B. covenants to build a house for A., and to finish it before a 
 certain day, in consideration of a sum of money, which A. cove- 
 nants to pay him by instalments as the building proceeds. Held, 
 that B. can bring his action for the money, though the building 
 be not complete at the time appointed; Terry v. Duntze, 2 H. Bl. 
 389. 
 
 Agreement under seal that plaintiff should take defendant as 
 
 418
 
 DEPENDENCY ARISING FKOM TIME FOK PERFORMANCE. *454 
 
 partner, to commence /rom and after the 29th September; cove- 
 nant by the defendant to pay £800 on or before that day as a 
 premium. The plaintifP can bring an action for non-payment 
 without tendering articles of partnership; Walker v. Harris, 1 
 Ans. 245. 
 
 B., in consideration of the sum of £250 paid by A., and of the 
 further sum of £250 to be paid by him, covenanted with X. to 
 teach him the art of bleaching linen with all possible despatch; 
 and A. covenanted that he would on a certain day, or sooner if B. 
 should before that time have instructed him, pay the further sum 
 of £250. Held, that B. might sue A. for the £250 without aver- 
 ring that he had tausfht him the art of bleaching linen; Campbell 
 V. Jones, 6 T. R. 570". 
 
 Plaintiff and defendant agreed under seal to enter into part- 
 nership as apothecaries till Jan. 1, 1846. that defendant should 
 pay plaintiff £800, and should be entitled to all the profits of the 
 business, aud that plaintiff should, after the 1st January, 1846, 
 introduce the defendant as his successor, and use his loest en- 
 deavours to establish him in the business; and in con- 
 sideration thereof, the * defendant covenanted to pay [ * 453 ] 
 a further sum of £50 to plaintiff on the 25th March, 1846. 
 Held, that the. introduction of the defendant by the plaintiff" was 
 not a condition precedent to the payment of the £50, as the plain- 
 tiff would still be under an obligation to introduce him after the 
 25th March, 1846; Judson v. Boicden, 1 Ex. 162. 
 
 Plaintiff covenanted with defendant to deliver up a farm on a 
 certain day, and in the meantime to cultivate it on the four- 
 course system, and that on the surrender he would deliver up an 
 agreement to be cancelled, and would surrender all his unexpired 
 term and interest, and, if defendant required, would at any time 
 afterwards execute any deed for further assurance; and defend- 
 ant covenanted with plaintiff" that if plaintiff* delivered up the 
 farm, and in the meantime cultivated it on the four-course system 
 and performed all and singular other the covenants, &c., then the 
 defendant would pay for the manure on the delivery up of 'the 
 farm. Held, that plaintiff could sue on the covenant to pay for 
 the manure though \n> had not delivered up the agreemeut Baron 
 Bramwell said: — " The defendant's covenant appears to be made 
 conditional upon the performance of all the covenants on the part 
 of the plaintiff". But some of them, such as that for further 
 assurance, are not to be performed till after the time for pay- 
 ment. Therefore it is impossible to construe the covenant liter- 
 ally. The reasonable construction is that the plaintiff is entitled 
 to recover for the manure, and that the breach of his covenant is 
 the suljject of a cross action." Bramwell, Watson, aud Chaiinoli, 
 BB., all point out that delivery up of the agreement was not of 
 the essence of the contract; Neirson v. Smithies, 3 H. &c N. 840. 
 
 The plaintiff' guaranteed the payment at maturity to the de- 
 
 419
 
 * 455 DEPENDENCY ARISING FROM TIME FOR PERFORMANCE. 
 
 fendant of certain bills held by him, and the defendant guaran- 
 teed the payment to the plaintiff of certain goods sold by him to 
 a third person. Held, that the guaraatees were independent; 
 Christie v. Borelly, 7 C. B. N. S. 561. 
 
 By marriage articles the wife's father covenanted to 
 [*454] * make certain payments during his life, and to settle a 
 certain portion of his estate at his death on the husband 
 and wife during their respective lives, and after their deaths on 
 their issue; and the husband covenanted to insure his life and to 
 settle the policy and other property in like manner: in default of 
 issue, the property settled by the husband was to revert to him. 
 The marriage took place, and the wife died without issue: the 
 husband did not insure his life or make any settlement according 
 to his covenant, and refused to execute the settlement drawn 
 according to the articles. Held, that the performance by the 
 husband of his covenant was not a condition precedent to the 
 performance by the father; Jesion v. Key, L. K. 6 Ch. 610 (a). 
 
 If A. be the thing covenanted to be done by A., and B. the 
 thing covenanted to be done by B. : 
 
 Rule 166. — When the thing to he done by plaintiff must pre- 
 cede the thing to he done by defendant. — If the time fixed for 
 doing A. must happen after the time for doing B., B. cannot 
 bring an action against A. for not doing A. without previously 
 doing B. ; in other words, B. is a condition precedent. Piatt on 
 Covenants, 83, et seq.j Leake on Contracts, 649. 
 
 This rule is stated in the notes to Pordage v. Cole, 1 Wms. 
 Saund. 320, note (4), (p. 552, ed. 1871), as follows:-" When a 
 day is appointed for the payment of money, &c., and the day is 
 to happen after the thing, which is the consideration of the 
 money, &c., is to be performed, no action can be maintained for 
 the* money, &c., before performance." 
 
 " If there be a day for the payment of the money, or 
 [ * 455 ] * doing of other act, for another, and that day is to be 
 after the performance of the thing for which the promise, 
 &e., was made, there, if the agreement be to pay the money, or do 
 other thing, 'for'' or 'in consideration,' or such other words that 
 would make a condition precedent, there such things, for the 
 doing or performing of which the other agrees to pay the money, 
 
 (a) Specific performance of marriage articles. — Specific performance of mar- 
 riage articles can be obtained by the wife or the cliildren of a marriage; 
 Perkins v. Thornton. Amb. .502; Harvey v. Ashley. 3 Atk. at p. 611: Croftonw 
 Orrnsby, 2 Sch. & Lef. at p. 602; Lloyd v. TJoy.i 2 My. & Cr. 192, against any 
 person who has contracted to make provisions for them, though some otlier 
 person who has contracted to make provisions for them has made default in 
 doing so. 
 
 420
 
 DEPENDENCY ARISING FROM TIME FOR PERFORMANCE. * 456 
 
 or do other thing, mast be averred to maintain an actioQ;" jjer 
 Holt, C. J., Thovp V. Thorp, 12 Mod. 4(52; S. C, 1 Ld. Ray. 662. 
 
 Examples — In many instances this rule has been applied to 
 the con^5t ruction of charterparties (a), where, the covenant being 
 that the merchant should pay the freight on the delivery of the 
 goods at a certain place, the goods were not delivered because, 
 part of them had been taken by pirates; Bright v. Coirpcr, 1 
 Brownl. 21 (6) ; or the ship did not arrive; Clarke v. Gurncll,! Bnlst. 
 167; or the ship was wrecked before arrival; Cook v. Jennings, 7 
 T. E. 381 ; Gibbon v. Mendez, 2 B. & Al. 17; Mitchell v. Darthez, 
 2 Bing. N. C. 555; or the ship was wrongfully seized and pre- 
 vented from going on her voyage; Smith. \. Wilson, 8 East, 487; 
 or the goods were seized by a foreign government; Storery. Gor- 
 don, 3 M. & S. 308; or the ship, in pursuance to directions from 
 the fi-eighter's agent, proceeded to a port different from that 
 named in the charterparty ; Thomptson^. Broicn, 7 Taunt. 656; or 
 where the merchant was held justified in declining to perform his 
 part of the contract on the ground that the ship was to sail on a 
 certain day and failed to do so; Gladholmw Hays, 2 Man. & Gr. 
 257 (see Croockeivit v. Fletcher, 1 H. & N. 893); or that she was 
 not ready to receive cargo at the time agreed upon; Oliver \. 
 Fielden, 4 Ex. 135. 
 
 By marriage articles, the intended husband covenanted to 
 settle £2,000 in a particular manner, and the intended 
 * wife's father covenanted to make a settlement; but it [ * 456 J 
 was expressly agreed that, l)efore the father should make 
 the settlement which be had agreed to make, the husband should 
 purchase and settle £840 per annum, part of the £2,000 per 
 annum. The marriage took effect, and the father died before 
 anything was done; then the wife died without issue. Held, on 
 a suit by the husband against the infant heir of the father, that 
 the settlement of the £840 by the plaintiff was a condition pre- 
 cedent to the performance of the covenant by the father; Fever- 
 shaniY. Watson, Finch. Ca. Ch. 445; S. C, Freem. Ch. 35 (c). 
 
 Agreement under seal that the plaintiff's should supply, and 
 that the defendants should accept, coke, " to be to the satisfaction 
 of the defendants' inspecting officer for the time being." Held, 
 that it was a condition precedent to the right of the plaintiff's to 
 insist upon the defendants' acceptance of the coke that it should 
 be to the satisfaction of their inspecting officer; Grafton v. 
 Eastern Counties Ry. Co., 8 Ex. 699; but see Jone^ v. Cannock, 5 
 Ex. 713. 
 
 (rt) See Benjamin on Sales, Bk. IV. I't. I., p. 540, .'ird ed. ; Abl)ofton 
 Shipping, Pt. iV. Ch. IX. s. 8, 12th ed. p. :{G8 <tseq. 
 
 ib) See remarks on Jin'f/ht v. Cowper in Al)l)()tt on Shipping, Iritli ed. p. 
 379. where it is observed that it is not elear wliether the merchant chiinied 
 the whole or only part of the freight. 
 
 (c) But see ante, p. 454, note. 
 
 421
 
 *457 DEPENDENCY ARISING FROM TIME FOR PERFORMANCE. 
 
 An agreement under seal between A. and B. contained several 
 stipulations, and it was agreed and. declared that for the true per- 
 formance of the covenants by A. hereinbefore contained, and for 
 securing any penalties which he might incur under these presents, 
 
 A. and two responsible sureties '* shall within ten days after the 
 execution of these presents, execute a bond to B. in a penalty of 
 £5,000," and that B. shall execute a similar bond to A. Held, first, 
 that A.'s covenant to give a bond, and B.'s like ^covenant were in- 
 dependent; second, that A.'s covenant to give a bond, and B.'s 
 liability under his other stipulations were dependent, so that it 
 was a condition precedent to A."s right to recover damages against 
 
 B. in respect of a breach of such stipulations, that A. should have 
 given the bond, and that the fact of B. not having given his bond 
 did not better A.'s position; Roberts v. Brett, 11 H. L. C. 337. 
 
 r * 457 ] * Arbitration Clauses. 
 
 Arbitration. — Dependency in respect of time may be illustrated 
 by the cases in which an instrument contains an agreement to re- 
 fer to arbitration any matter of dispute arising under the instru- 
 ment. 
 
 In Datcson v. Fitzgerald, L. R. 9 Ex. 7 ; 1 Ex. D. 257, the de- 
 fendant, a lessee, covenanted with the plaintiffs, his lessors, that 
 he would not keep up an injurious quantity of ground game, and 
 that in case he should do so, he would pay to the plaintiffs a fair 
 and reasonable compensation, "the amount of such compensa- 
 tion, in case of difference, to be refeiTed to the arbitration of two 
 arbitrators," &c. The plaintiff's sued for breach of the covenant 
 to pay compensation: the defendant pleaded that there had been 
 no reference to arbitration. A majority (Kelly, C. B., and Pigott, 
 B.) of the Court below held that the plea was got)d, on the ground 
 that the covenant to pay compensatioa and the covenant to refer 
 were dependent covenants, and that arbitration and award were a 
 condition precedent to liability. Bramwell, B., who dissented, 
 stated his view of the law (L. R. 9 Ex. at p. 10), as follows: "If 
 there be a covenaat to pay in a certain event, and a separate and 
 collateral covenant that, in case of difference, that difference 
 shall be referred to arbitration, the two are distinct from each 
 other, and one may be broken whether the other be broken or not; 
 and it is no matter whether the two covenants are, in different 
 deeds, or in the same deed at different parts of it, or following 
 each other consecutively. If, on the other hand, there is only a 
 covenant to pay whatever upon arbitration shall be found to bo 
 due, then no action can be maintained until the arbitration has 
 taken place." On appeal, the judgment of the majority of the 
 court below was reversed. Jessel, M.R., said (1 Ex. D. p. 260): 
 " I take the law, as stated by the highest authority — the House 
 of Lords — -to be this. There are two cases where such a plea as 
 422
 
 COVENANTS TO BE PERFORMED SIMULTANEOUSLY. * 459 
 
 the present is successful; lirst, where the action can only be 
 brought for the sum named by the arbitrator; secondly, 
 * where it is agreed that no action shall be brought till [ *4:58 J 
 there has been an arbitration, or that arbitration shall 
 be a condition precedent to the right of action. In all other 
 cases where there is, first, a coveoant to pay, and secondly, a 
 covenant to i-efer, the covenants are distinct and collateral, and 
 the plaintiff may sue on the first, leaving the defendant to pursue 
 one of two coiu'ses, either to bring an action for not referring, or 
 to apply under s. 11 of the Common Law Procedure Act, 1854, 
 to stay the action till there has been an arbitration." Scott v. 
 Avery, 5 H. L. C. 811; Elliott v. Royal Exchange Assurance Co., 
 L. R. 2 Ex. 237; and Trediven v. Holman, 1 H. & C. 72, were 
 cited with approval. 
 
 In Babbage v. Coulburn, 9 Q. B. D. 235, it was held that under 
 an agreement by a lessee to pay for dilapidations, the amount, if 
 disputed, to be settled by valuers, the valuation was a condition 
 precedent to the lessor's right to sue in respect of the dilapida- 
 tions. Field, J.', distinguished Dawson v. F'itzgerald, saying: 
 "In that case the result was different, because there was an in- 
 dependent covenant to pay a fair and reasonable compensation, 
 while here there is only a covenant to pay a sum ascertained by 
 valuers;" S. C, affirmed by C. A. (diss.," Cotton, L.J.) 46 L. T. 
 794. See also Collins v. Locke, 4 App. Cas. 674, 689; Edicards 
 V. Aberayron, &c.. Society, 1 Q. B. D. 563, especially the judg- 
 ment of Brett, J., at pp. 592 et seq. 
 
 If A. be the thing covenanted to be done by A., and B. the 
 thing covenanted to be done by B.: 
 
 .Rule 167.*^ — Where covenants are to be performed simultane- 
 ously. — Where A. and B. are to be done simultaneously, neither 
 A. nor B. can maintain an action without shewing that he has 
 done, or offered to do, A. or B. respectively; Piatt on Covenants, 
 86 et seq. ; Leake on Contracts, 652 et seq. 
 
 This rule is stated in the notes to Pordage v. Cole, 1 Wma 
 Saund. 320, note (4), s. 5 (ed. 1871, p. 556", as follows: 
 "Where two acts are to be done at the same time, * as [*459] 
 where A. covenants to convey an estate to B. on such a 
 day, and in consideration thereof B. covenants to pay A. a sum 
 
 »' Kane v. Hood, 1.3 Pick. (Mas.s.) 154; Williams ?-. Healey, :i Denio (N. 
 Y.), .3G:}; Gazley v. Price. KJ Johns. (N. Y.) 2(i7; Duiiiiam v. Pettee, 8 N. Y. 
 508; Tester v. Jewett. 11 X. Y. 4."):?; Campbell r. (;ittiii.i;s. 1!» O. :547; Hollo- 
 way r. Davis, Wrijjht (O.), 129; Adams 7-. Williams. 1 W. c"t. S. (Pa.) 227; 
 Bank of Columbia v. Hafjner, 1 Pet. (U. S.) 45."); Hyde v. P.ooraem, IT. Pet. 
 (U. S.) Hi'): Slater v. Emerson, li) How. (U. S.) ;i24; Florida li. \l. Co. v. 
 Smith, 91 U. S. 2.35; Woodrufl" f. Hough, 91 U. S. .7JG. 
 
 423
 
 *460 DEPENDENCY ARISING FROM NATURE OF COVENANTS. 
 
 of money oa the same day, neither can maintain an action -with- 
 out shewing performance of, or an offer to perform, his part, 
 though it is not certain which of them is obliged to do the first 
 act; and this particularly applies to all cases of sale." 
 
 Examples. — Actioa for debt on a bond conditioned for the 
 
 payment of so much money " on request, the plaintiff assigning 
 
 •over to the defendant such a judgment against C." Judgment 
 
 for the plaintiff, it appearing that he had offered to assign the 
 
 judgment; Turner v. Goodwin, 10 Mod. 154: S. C, Ibid.189, 222. 
 
 A. covenanted with B. that, upon the tender and payment by 
 
 B. of a certain sum on or before a certain day, A. would transfer 
 certain stock to him. The money not being paid, A. brought his 
 action; but as he did not sutificiently allege a tender or transfer 
 of the stock, judgment for B.; Stapleton v. Shelburne, 1 Bro. P. 
 
 C. 215. 
 
 Plaintiff covenanted to sell to the defendant a school-house, and 
 to convey the same on or before the 1st of August; and in con- 
 sideration thereof the defendant covenanted to pay the plaintiff 
 £120 on or before the 1st August. Held, that the plaintiff could 
 not maintain his action for the £120 without averring that he 
 had conveyed or tendered a conveyance; Glazebrook v. Woodroiv, 
 8 T. H. 366. See also Thorjy v. Thorp, 12 Mod. 455; Goodisson v. 
 Nunn, 4 T. R. 761; Heard v. Wadfiam, 1 East, 619. 
 
 Covenant by defendant to give up his business on a certain day 
 to the plaintiff, and covenant by plaintiff to accept the business, 
 and " at and before the delivery of the deeds-procure good security 
 to be given to the defendant, to be approved of by the defendant, 
 fur the payment of £250 monthly to the defendant." The plaintiff 
 sued the defendant for not giving up his business and the defend- 
 ant pleaded that the plaintiff had not offered or given sufficient 
 
 security; judgment for the defendant, " because the part 
 [ * 460 ] to be performed by the *plaintift' was clearly a condition 
 
 precedent; " Kingston v. Preston, cited 2 Doug. 689. 
 
 Dependency arising from the Nature of the Covenants. 
 
 If A. be the thing covenanted to be done by A., and B. the 
 thing covenanted to be done by B. : 
 
 Rule 168. — Where covenant is sole consideration. — If A. be 
 the sole consideration for B. (or, as it is sometimes expressed, 
 goes to the root of the contract), A. cannot bring his action with- 
 out doing, or offering to do, A. ; in other words, the covenants 
 are dependent. 
 
 Rule 169. — Where covenant is pai^t of consideration and non- 
 performance can he compensated. — If A. be part only of thecon- 
 424
 
 DEPENDE^CY ARISING FROM NATURK OF COVKNANTS. * 461 
 
 sideration for B., and the non- performance of A. can be com- 
 pensated by damages, A. can bring his action without doing, or 
 offering to do, A.] in other words, the covenants are independent. 
 
 See, as to both these rules. Leake on Contracts, 650 et seq. ; 
 Piatt on Covenants, 90 et seq. 
 
 These rules are laid down in the notes to Pontage v. Cole, 1 
 "\Vms. Saund. 820 (pp. 556 and 552, ed. 18*1), as follows: 
 '• Where the mutual covenants go to the whole consideration on 
 both sides, they are mutual considerations, and performance must 
 be averred." " Where a covenant goes only to part of the con- 
 sideration on both sides, and a breach of such covenant may be 
 paid for in damages, it is an independent covenant and an ac- 
 tion may be maintained for a breach of the covenant on the 
 part of the defendant without averring performance in the de- 
 claration." 
 
 The leading case on both these rules is Boone v. Eijre, 1 H. Bl. 
 273, note; S. C, 2 W. Bl. 1812, another action between same 
 parties. There the plaintiff conveyed a plantation in the West 
 Indies, with the negroes on it, in consideration of a 
 sum down and an annuity, and covenanted * that he [ * 461 ] 
 was lawfully possessed of Ihe negroes. The defendant 
 covenanted 'that, the plaintiff well and truly performing all and 
 everything therein contained on his part to be performed, he, the 
 defendant, would pay the annuity. To an action for non-pay- 
 ment of the annuity, the defendant pleaded that the plaintiff 
 was not at the time of making the deed lawfully possessed of 
 the negroes. On demurrer, Lord Mansfield, C.J., said (1 H. Bl. 
 273 n.): " The distinction is very clear: where mutual covenants 
 go to the whole of the consideration on both sides, they are 
 mutual conditions, the one precedent to the other; but where 
 they go only to a part, where a breach may be paid for in dam- 
 age's, there the defendant has a remedy on his covenant, and shall 
 not plead it as a condition precedent. If this plea were to be 
 allowed, any one negro not being the property of the plaintiff 
 would bar the action." 
 
 Observation on Rule 168.— A defendant who has had a sub- 
 stantial part of the consideration cannot set up the nou- perform- 
 ance by the plaintiff of a consideration precedent; Carter v. 
 Scargill, L. R. 10 Q. B. 564, citiug per Parke, B., in Graces v. 
 Legg, 9 Ex. at p. 716; White \. Beelon, 7 H. & N. 42; and Ellen 
 V. Tojjp, 6 Ex. at p. 441 (post, p. 462). Accordingly, it is im- 
 possible after a marriage to set aside the marriage contract on 
 the ground of the failure of a pecuniary consideration; Canijilill 
 V. Ingilbij, 21 Beav. 567; on app. 1 D.' (i. & Jo. 898. 
 
 Examples of Rule 168. -Examples of drpendcnt corenants. — 
 Where the defendauL covotianted to pay the plaintiff a C(>rtam 
 sum, the plaintiff making to him a sufficient estate in certain 
 
 425 •
 
 * 463 DEPENDENCY ARISING FROM NATURE OF COVENANTS. 
 
 lands before St. Thomas's Day : Held, that the words " the 
 plaintiff making," &c., were a condition precedent, i.e., that the 
 covenants were dependent; Larger. Cheshire, 1 Vent. 147; S. C, 
 2 Keb. 801. (See likewise Atkinson v. Smith, 14 M. & W. 695; 
 and Duke of St. Albans v. Shore, 1 H. Bl. 271; Graves v. Long, 9 
 Ex. 709; cases of assumpsit; and Bradford \. Williams, L. R. 7 
 Ex. 259; Heard v. Wadltam, 1 East, 619). In Bradford 
 [*462] V. Williams, {sup.), Martin, B., *said :^ "I think the 
 words ' condition precedent ' are unfortunate. The real 
 question, apart from all technical expressions, is, what in each 
 instance is the substance of the contract." 
 
 Apprentice. — Where a master leaves off his business he cannot 
 bring an action on the covenant by the apprentice to serve him; 
 Ellen V. Topp, 6 Ex. 424. 
 
 Where an apprentice ran away and enlisted as a soldier, it was 
 a sufficient excuse for his master not performing his covenant to 
 teach him; Hughes^. Humphreys, 6 B. & C. 680; Cuff w. Brown, 
 5 Price, 297. 
 
 See also Newson v. Smithies, 3 H. & I^. 840, ante, p. 453; 
 Poussard v. Sjjiers, 1 Q. B. D. 410. 
 
 Examples of Rule 169. — Examples of independent cove- 
 nants. — A. covenanted with B. not to interfere in a certain branch 
 of the Scotch fish business, and to assign to B. a certain Scotch 
 fishery. B., in consideration of the assignment and of A.'s cove- 
 nant, covenanted to pay A. an annuity. Held, that the covenant 
 not to interfere in the business was only a part of the considera- 
 tion for the annuity, and was therefore not a condition precedent, 
 but an independent covenant; Carpenter v. Cressicell, 4 Bing. 409; 
 1 M. & P. 66. 
 
 A breach of the covenant by an apprentice to serve his master 
 faitL fully is no defence to an action against the master for not 
 teaching him according to his covenant; Winston v. Linn, 1 B. & 
 C. 460; Phillips V. Clift, 4 H. & N. 168. 
 
 Covenant to supi)ly goods (a). — Agreement under seal that 
 defendants shouid supply and plaintiffs purchase all the coke re- 
 quired by plaintiffs for working their railway ; covenant by plaint- 
 iffs that so long as the defendants should punctually 
 [ * 463 ] supply the said * coal they would abstain from purchas- 
 ing coke from other persons. Held, that the fact of the 
 plaintiff having purchased coke from other persons was no an- 
 swer to an action brought by them against the defendants for not 
 
 (a) Contract to supply goods. — It will be observed that where A. covenants 
 to supply goods to B., and B. covenants to pay for them, the effect of hold- 
 ing the performance bj- A. of his covenant to be a condition precedent to his 
 right of action for the jiurchase money, would be to prevent him froni re- 
 covering the purchase-money it he failed in delivei'ing any' one article; 
 while, if the covenants are held to be independent, B. can, if he is really in- 
 jured by A.'s default, bring a cross action on A.'s covenant. 
 
 426
 
 DEPENDENCY ARISING FROM NATURE OF COVENANTS. * 464 
 
 delivering coke; Eastern Counties Raihcay Co. v. Phillipson, 16 
 C. B. 2. 
 
 Covenant by plaintiff with defendants, that he being provided 
 by defendants with rails and chairs, would complete part of the 
 railway and the permanent way before the tirst of June; covenant 
 by defendants with plaintiff to pay him £15,000 by instalments; 
 provision that if the plaintiff should not complete the railway by 
 Ist of June, the defendants might retain part of the £15.000 for 
 every day of delay; defendants did not furnish the rails till after 
 the 1st of June. Held, on an action for the £15,000, that the 
 covenants were independent; and the furnishing of the rails was 
 not a condition precedent; Mackintosh v. Midland Counties Rail- 
 waij Co., 14 M. & W. 548. 
 
 Plaintiffs contracted by deed with the Vestry of C. to supply- 
 gas to the public lanterns of the parish of C. ; covenanting {inter 
 alia) that they would to the satisfaction of the Vestry light each 
 lamp at sunset and continue it lighted till sunrise, and also as to 
 the purity and illuminating power of the gas. The Vestry cove- 
 nanted, the plaintiffs performing their covenants, to pay a certain 
 sum per annum for each gas lamp. On an action brought to re- 
 cover the money, the Vestry pleaded non-performance by the 
 plaintiffs of their covenants. Held, that the covenants by the 
 plaintiff's and defendants were independent; London Gaslight Co. 
 V. Chelsea, 8 C. B. N. S. 215. 
 
 In a dissolution deed between two partners, A. and B., A. as- 
 signed to B. certain shares, and covenanted for further assurance; 
 and B. covenanted Avith A. to indemnify him against certain lia- 
 bilities: on a suit by B. to enforce A.'s covenant for further as- 
 surance, it was held that a breach by B. of his covenant to in- 
 demnify A. was no defence, for that the covenants were independ- 
 ent; Gibson v. Goldsmid, 5 De G. M. & G. 757; reversing S. C, 
 18 Beav. 584. 
 
 * The conveyances of plots forming part of a building [ * 464 ] 
 estate contained covenants by the respective purchasers 
 against building beyond either the front or rear building lines. 
 In an action l)y a purchaser of one plot against the purchaser of 
 the adjoining plot to restrain a breach of the covenant as to the 
 fi-ont building line: //e/d, that the covenants were independent, 
 and therefore the plaintiff's' right to relief was not barred by a 
 breach on his own part of the covenant as to the rear building line; 
 Chitty V. Bray, 48 L. T. 860. 
 
 See also Storer v. Gordon, 3 M. & S. 308; Davidson v (Jivijnne, 
 12 East, 380; Ritchie v. Atkinson, 10 East, 294; Havelocky. Ged- 
 des, 10 East, 555; Fothergill v. Walton, 8 Taunt. 576; S. C, 2 J 
 B. Moore, 630; Sf avers v. Curling, 3 Bing. N. C. 355; S. C, 3 
 Sc<jtt, 740; 2 Hodges, 237 (all cases on the construction of char- 
 ter parties): — Bettini v. Gyc, 1 Q. B. D. 183. 
 
 See also Fearon v. Earl of Aylesford, 12 Q. B. D. 539, afl&rraed 
 
 427
 
 * 4d5 PARTICIPLES "TO BE." 
 
 on appeal, W. N. 1884, p. 208, which decides that covenants in a 
 separation deed by which the husband covenants to pay an an- 
 nuity to a trustee for the wife, and the trustee covenants with the 
 husband that the wife should not molest him, are independent 
 covenants. 
 
 Clauses introduced by Participles (a), or by the Words 
 " To be.'' 
 
 A clause introduced by a participle, or by the words " to be," 
 may itself amount to a covenant, or it may be a mere qualifica- 
 tion of the covenant with which it is connected (see the remarks 
 ante, p. 419 et t^eq., and the cases falling under these heads re- 
 spectively there cited, and Piatt on Covenants, 99 et seq.). In 
 the latter case it forms a condition precedent to liability under 
 the qualified covenant; but if it amount itself to a covenant, it 
 may or may not form a condition precedent according as it is or 
 is not a dependent covenant. 
 
 In cases of this class we must first determine whether 
 [ * 465 ] * the clause in question amounts to a covenant, and if it 
 does, then whether it is or is not dependent. 
 
 We here give examples of clauses amounting to covenants, di- 
 viding them into cases of (1) Independent, and (2J Dependent 
 Covenants. 
 
 Examples (1). Clauses held to create independent cove- 
 nants, l e., not to be conditions precedent. — ckmss intro- 
 duced by participle or " to be " creating independent covenants. — 
 Covenant by lessor with lessee, " that he paying the rent and per- 
 forming the covenants on his part to be performed," shall quietly 
 enjoy. On an action by the lessee for breach of covenant, the 
 lessor pleaded that the lessee broke his covenants, and that there- 
 fore the lessor's covenant ceased to oblige him. Held, on de- 
 murrer, that the words " paying and performing " did not amount 
 to a condition precedent; Hayes or Hays v. Bickerstaffe, 2 Mod. 
 34; S. C, Freem. K B. 194; S. C, Vau. 118 (where the report 
 is on the meaning of the covenant for quiet enjoyment). See 
 also Allen v. Babington, 1 Sid. 280; S. C, 2 Keb. 923; Daioson 
 v. Dyer, 5 B. & Ad.- 584; contra. Anon., 4 Leon. 50. 
 
 Lease reserving the trees, covenant by lessee with the lessor 
 that he should have liberty to fell the trees and root them up, 
 "repairing the hedges where they grow." Held, that the words 
 " repairing." &c., amounted to an independent covenant by the 
 lessor; Warren v. Arthtir, 2 Mod. 317. 
 
 The defendant covenanted with the plaintiff that he, the plain- 
 tiff, " doing, fulfilling, and performing all the covenants in the 
 
 (a) See also the heading, Arbitration Clauses, ante, p. 457. 
 
 428
 
 PARTICIPLES — "TO BE." * 466 
 
 indenture contained,'" he, the defendant, would pay an annuity. 
 Held, that the words " doing," &c., amounted to an independent 
 covenant; Boone v. Eyre, 2 W. Bl. 1812. 
 
 Examples (2). Clause held to create a dependent cove- 
 nant, /. (., a condition precedent. — Clause introduced by par- 
 ticiple or the irords '"to be'^ creaf tug a condition j^recedent. — The 
 defendant covenanted to j>ay a certain sum to the plaintiff, the 
 plaintiff ?HaA:j>i;/ him an estate i)i certain lands; Large v. Clieshire, 
 1 Vent. 147. 
 
 Agreement for a yearly tenancy, the lessee agreed to 
 * keep the premises in repair, " the same being first put [ * 466 ] 
 into good order and condition by the lessor; " Neale v. 
 RatcUff, 15 Q. B. 916. See also Coward v. Gregory, L. K. 2 C. 
 P. 153. 
 
 Covenant by lessee to repair, "the lessor allowing and assign- 
 ing timber for repairs;" Thomas v. CaduriUader, Willes, 496. 
 
 Covenant by lessee of house to pay rent and keep premises in 
 repair; covenant by lessor that the lessee, on giving six months' 
 notice before the end of the term, should have a renewed lease, 
 '■^ upon paying the rent, and performing and observing the cove- 
 nants of the lease.'" Held, that the performance of the cove- 
 nants by the lessee was a condition precedent to his privilege of 
 having a renewed lease; Bast in v. Bidivell, 18 Ch. D. 288. 
 
 Plaintiff agreed to sell wool to the defendant, " the names of 
 the vessels to be declared as soon as the icool ivas shipped.'''' Held, 
 on an action by the plaintiff for the price of the wool on the de- 
 fendant refusing to accept it, that the declaring of the names of 
 the vessels within a reasonable time after shipping the wool was 
 a condition precedent to the plaintiff's right to recover; Graves 
 V. Legg, 9 Ex. 709. 
 
 "All an-ears being paid;" Grey v. Friar, 4 H. L. C. 565. The 
 difficulty in this case arose on the context: there was a power to 
 the lessee to determine the lease, " all arrears being paid . . . 
 without prejudice to any claim . . . which any of the parties 
 hereto may then be entitled to for breach of any of the covenants 
 hereinbefore contained." 
 
 429
 
 468 COVENANT QUALIFIED BY CONTEXT. 
 
 [*467] * CHAPTER XXX. 
 
 QUALIFIED COVENANTS AND COVENANTS FOR TITLE la). 
 
 Covenant general or absolute qualified by context: Covenant fol- 
 lowed by words " but that" <S:c. : Whether qualifying words 
 in one covenant affect other covenants: " Covenants for title: 
 Covenant for quiet enjoyment '•'■ without interruption, disturb- 
 ance,''^ &c., means lawful interruption, disturbance, &c. : Ex- 
 cept ivhere interruption, &c. : or by covenantor " and his 
 heirs," or, ''and his executors," or by specified person : Dis- 
 turbance by suit in Equity: Disturbance caused by cove- 
 nantee'' s otvn acts: Covenant against incumbrances: Con- 
 struction of special tvords: ^' Acts," '^ means," ''■ procure- 
 ment," ''^ neglect," "■default:" '^ Permit and suffer:" Who 
 are persons ^^ claiming under " the covenantor : Things ap- 
 purtenant, &c. : Covenants for further assurance. 
 
 Rule 170. — Covenant qualified by context. — A covenant gen- 
 etal or absolute in terms may be restricted or qualified by some- 
 thing appearing in another part of the deed. 
 
 Examples. — -In a conveyance, covenants for title were re- 
 stricted, by an agreement in a remote part of the deed, to acts 
 done by the covenantor himself; Brown v. Broivn, 1 Lev. 57. 
 
 In a separation deed, a covenant by the husband to pay an an- 
 nuity of £250 to the wife during her life was restricted 
 [ *468 ] by a recital that he had agreed to pay her an * annuity 
 of £250 out of his salary as a searcher so long as he 
 should hold the situation; Hesse v. Albert, 3 IVl & Ry. 406. 
 
 A lease contained a covenant by the lessee for the payment of 
 rent, and also of interest on it if it should be in arrear for three 
 quarters, and a covenant by a surety that the lessee should at all 
 times \yell and truly pay the rent at the respective days therein 
 before mentioned, and also interest, and should duly perform all 
 
 (a) See an American book on Covenants for Title by Mr. W. H. Rawle. 
 430
 
 ''BUT that" following A COVENANT. * 469 
 
 the covenants, and that in case the lessee should neglect to jiay 
 the rent, &c., for forty days, the surety would pay it on demand. 
 Held, that the surety was not liable before the end of the forty 
 days, nor before demand, the latter words restraining the former; 
 Sicklemore v. Thisfleton, 6 M. &, S. 9. 
 
 In a lease, a covenant by the lessee to repair at ail times as oc- 
 casion should require, and at furthest within three months after 
 notice, was held to be a covenant to repair only after occasion, 
 and three months' notice; Horsfall v. Tesfar, 1 J. B. Moo. 89. 
 
 "Where a deed contains two covenants by the same (>ovenautor, 
 both of which cannot be performed, they are necessarily depend- 
 ent; Hemans v. Picciotto, 1 C. B. N. S. 646. 
 
 In MaHijn v. M'Namara, 4 Dr. & "War. 411, Sugden, C, seems 
 to have been of opinion that the generality of a covenant by A. 
 with X. was qualified bv a restricted covenant in pciri materlCi by 
 A. & B. with Y. 
 
 Ambiguous words. — It must, however, be remembered that an 
 absolute covenant will not be cut down by ambiguous words; 
 Sugd. V. & P. (14th ed. ) 605; and accordingly,, where a vendor 
 covenanted " that he was seised of a good estate in fee according 
 to the indenture made to him by W., his vendor," it was held 
 that the covenant was absolute, and that the reference to the con- 
 veyance by W. served only to denote the limitation and quality 
 of the estate, and not the defeasibleness or indefeasibleness of 
 the title; Cooke v. Founds, 1 Lev. 40: 1 Keb. 95. But see Delmer 
 V. M'Cabe, 14 Ir. C. L. R. 377. 
 
 Participle — " to he.''"' — As to the qualification of a covenant by a 
 participial clause, or the words "to be," following; seeaw^e, p. 420. 
 
 * Rule 111.— ''But that," d'c — The words " but that, [ * 469] 
 /fee," following a covenant, will be construed as part 
 of and as a qualification of it. 
 
 The condition of a bond was, whereas the defendant has as- 
 signed a lease for years to the plaintiff, he had not done any act 
 to disturb the possession of the plaintiff, whereby the assignment 
 might bo impaired, hindei'ed, or frustrated, l)ut that the |)laintiff 
 should quietly hold and enjoy the same ])remises without any 
 disturbance by the defendant or any other person, llcld, that 
 the words " but that, &c.," referred to the premises of the con- 
 dition, and meant that the lease should be enjoyed without dis- 
 turbance by any person or persons by act done or to be done by 
 the defendant; Broughton v. Comcay, F. Moo. 58; S. C, Dy. 240a. 
 
 Covenant by lessor that he had not done any act to prejudice 
 the lease, but that the lessee should enjoy it against all persons. 
 Held, that the words "but that," &c., refer to the first words "for 
 any act done by the lessor, &c. ;" (iervis v. Pcadc, Cro. El. 615; 
 S. C, sub nam. Peles & Jervies' Case, Dyer, 240a, margin. 
 
 431
 
 *470 QUALIFYING WOKDS IN ONE COVENANT OJSLY. 
 
 Whether qualifying words in one covenant affect another cove- 
 nant. 
 
 Where there are several covenants by the same covenantor, and 
 one of them contains words restricting its own generality, as, for 
 instance, "nothwithstanding any act of the covenantor," but the 
 others contain no such qualifying words, the question arises 
 whether the restrictive or qualifying words apply only to the 
 covenant in which they ax-e contained, or to the other covenants 
 as well. It was formerly thought that if a restinctive or qualify- 
 ing clause were in the lirst or last part of a sentence, or at the 
 beginning of the first, or at the end of the last sentence, which 
 
 in good sense might be applied to one and the other, it 
 [*470] should extend to both sentences; but * otherwise if the 
 
 clause were placed in the middle of one or two sentences; 
 and the rule was stated to this effect in the judgment in Gains- 
 ford V. Griffith, 1 Wms. Saund. 60 (p. 67, ed. 1871); but the 
 learned editor there says; "It is questionable whether much re- 
 gard would now be paid to this mode of construction. The chief 
 object of courts of law at present is to discover the true meaning 
 of the parties, and to construe the covenants accordingly. As 
 far as the difference above laid down would tend to find out the 
 intention of the parties, so far it would now be adopted, and no 
 farther." And the rule is expressly denied by Burrough, J., in 
 Nind v. Marshall, 3 J. B. Moore, at 720; S. C, 1 Brod. & Bing. 
 319, where tlie remarks of Lord Mansfield, C.J., in Kingston v. 
 Preston, cited Dougl. 689 (and ante, p. 460), are cited as laying 
 down the true rule; and see }'>('■>' Dallas, C.J., Foord v. Wilson, 
 
 8 Taunt. 543; Howell v. Richards, 11 East, 633; Keany. Strong, 
 
 9 Ir. L. E. 74. 
 
 Upon this subject Lord St. Leonards has (Sug4- V. & P. (14th 
 ed. ), Ch. 15, s. 3, p. 605), laid down the four following proposi- 
 tions; viz.: — 
 
 1. " Where restrictive words are inserted in the fii'st of several 
 covenants having the same object, they will be construed as ex- 
 tending to all the covenants, although they are distinct." 
 
 2. " Where the first covenant is general, a subsequent limit- 
 ed covenant will not restrain the generality of the preceding 
 covenant, unless an express intention to do so appear, or the 
 covenants be inconsistent, or unless there appear something to 
 connect the general covenant with the restrictive covenant, or 
 unless there are words in the covenant of themselves amounting 
 to a qualification" (ib., p. 607). 
 
 3. "As, on the one hand, a subsequent limited covenant does 
 not restrain a preceding general covenant, so, on the other, a 
 preceding general covenant will not enlarge a subsequent limited 
 covenant" (i6., p. 608). 
 
 4. " Where the covenants are of divers natures, and con- 
 
 432
 
 QUALIFYING WORDS IN ONE COVENANT ONLY. * 472 
 
 cern different things, restrictive words added to one 
 
 * shall not control the generality of the others, although [ * 471 ] 
 
 they all relate to the same land" {ib., p. 009). 
 
 On these propositions Mr. Dart (Y. A: P., 5th ed., 790) re- 
 marks that •' the lirst .... seems to be warranted by the au- 
 thorities. The second proposition is perhaps hardly accurate: 
 for although a prior general covenant will not, it appears, be re- 
 strained by a subsequent covenant having a different object, yet, 
 where two covenants relate to the same object, restrictive words 
 in the second may, it seems, control the generality of the first. 
 The third and fourth propositions seem to be unimpeachable." 
 See Piatt, Gov., Pt. 3, Ch. 11, s. 7, pp. 355, et seq. 
 
 The following rule appears to include all Lord St. Leonards' 
 propositions as emended by Mr. Dart, and also some cases which 
 do not fall under them. 
 
 Rule 172. — If one covenant be restricted or qualified, all other 
 covenants, m pari materiel, whether implied or express, are also 
 restricted or qualified ; but restrictive or qualifying words added 
 to one covenant do not restrict or qualify other covenants, whether 
 implied or express, in dispari materia. 
 
 See Piatt on Gov., pp. 364, 375. 
 
 The view stated in Rawle on Goveuants, p. 505, is as follows: — 
 " The class of cases which may be said to be based upon Broivn- 
 ing V. Wright, 2 Bos. & Pul. 13, appear to decide that where the 
 instrument contains one or more general or unlimited covenants, 
 which are connected with, or refer to, and have the same object as, 
 one or more preceding limited covenants so as to join the latter with 
 the former, it ^vill be inferred that the covenantor intended that 
 all the covenants should be restricted to his own acts or the acts 
 of those claiming under him, and the preceding limited covenants 
 will qualify and restrain the general ones; in other 
 words, when it clearly appears that * the covenants are [ * 472 ] 
 as it were cast in one mould, all having the same extent. 
 Courts will not pick out one of them in which the limitation is 
 less strongly or distinctly expressed than in the others, and upon 
 it fasten on the covenantor a general liability. In the absence, 
 however, of any such direct connection with a reference to each 
 other as would clearly load to the above conclusion, when the 
 limited covenants l>elong to a different class, or rather, have a 
 different object from the unlimited ones, they will beheld to pro- 
 duce no effect upon each otber, and tbe forinor will not qualify 
 the latter. 
 
 The only case which docs not support the rule is Miiner v. 
 Norton, McGlel. 047, in which it was held that words restricting 
 
 28 INTEKPIUCTATIOX OK DKIJDS. 433
 
 * 473 QUALIFYING WORDS IN ONE COVENANT ONLY. 
 
 the covenant for quiet enjoyment also restricted the covenants 
 for title, and which case, it may be remarked, is also contrary to 
 the second of Lord St. Leonards' propositions as emended by Mr. 
 Dart, and also to his fourth proposition, and is expressly over- 
 ruled by Smith v. Compton, 3 B. & Ad. 189, where Lord Tenter- 
 den, C. J., said: — "We have considered Milner v. Horton, again 
 since the argument, and we cannot feel ourselves bound by its 
 authority." The case of Line v. Stepheyison, 6 Sco. 447; on app., 
 7 Sc. 69; S. C, 4 Bing. N. S. 678; on app., 5 Bing. N. S. 183: 
 where it was held that the express covenant for quiet enjoyment 
 restricted not only the implied absolute covenant to that effect 
 created by the word " demise," but also the implied absolute cove 
 nant for title created by the same word can hardly be considered 
 as contravening the rule, as the decision proceeds upon the ground 
 that if the implied operation of the word "demise" is restricted 
 at all, it must be restricted for every purpose, and cannot be 
 held to be restricted when implying covenants for quiet enjoyment, 
 and unrestricted when implying covenants for title. 
 
 In Kean v. Strong, 9 Ir. L. R. 74, it was held by Crampton, 
 J., that an unqualified covenant to renew a lease was not cut down 
 by a qualified covenant for qaiet enjoyment, the covenants not 
 being connected with each other. His lordship said (p. 
 [ *473 ] 82): — "It would be against * principle to hold that an 
 implied covenant should qualify an express unqualified 
 covenant, or that one distinct express covenant should qualify 
 another express covenant neither grammatically nor substantially 
 connected with the former. I cannot, therefore, yield to the ar- 
 gument which would qualify the express unqualified covenant to 
 renew by the terms of the covenant for quiet enjoyment, a cove- 
 nant which, in the deed, is separated from the former by several 
 distinct and independent covenants: and, indeed, it may be added 
 that two such covenants, one the covenant to renew, unqualified, 
 and the other, the covenant for quiet enjoyment, limited to the 
 acts of the covenantor, may well and do often co-exist in the 
 same deed." S. C, in error. Strong v. Kean, 10 Ir. L. R. 137. 
 
 Covenants for title. — The most usual opportunity for the applica- 
 tion of the rule is in the construction of the group of clauses in a 
 purchase deed, which are usually, though inaccurately, called the 
 covenants for title. These consist of (1) the covenant for title 
 strictly so called (a covenant now usually omitted), (2) the cove- 
 nant for right to convey, (3) the covenant for quiet enjoyment, 
 (4) the covenant against incumbrances, and (5) the covenant for 
 fiarther assurance : and it has been decided that the covenants 
 for title and fof right to convey have the same object, but that 
 they have an object different from that of the covenant against 
 incumbrances. 
 
 Covenants for title may be either general or absolute, i.e., 
 against the acts, &c., of the whole world, and so extending to all 
 434
 
 QUALIFYING WORDS IN ONE COVENANT ONI-Y. * 475 
 
 paramount titles and incumbrances, or limited i.e., against the acts 
 of named persons, e.g., the covenantor himself only, or the cove- 
 nantor and his ancestors, &c., and so extending only to defects of 
 title or incumbrances created by such named persons. 
 
 " The covenant for title and the covenant for right to convey 
 are indeed what is somewhat improperly called synonymous 
 covenants; they are, however, connected covenants, generally of 
 the same import and effect, and directed to one and the 
 same object; and the qualifying * language of the one [ *474 ] 
 may therefore propei'ly enough be considered as virtually 
 transferred to and included in the other of them. Covenant for 
 quiet enjoyment distinguished from covenants for title and for 
 right to convey. — But the covenant for quiet enjoyment is of a 
 materially different import, and directed to a distinct object. The 
 covenant for title is an assurance to the purchaser that the grantor 
 has the very estate in quanlity and quality which he purports to 
 
 convey The covenant for quiet enjoyment is an assurance 
 
 against the consequences of a defective title, and of any disturb- 
 ances thereupon (c). For the purpose of this covenant and the 
 indemnity it affords, it is immaterial in what respects and by 
 what means or by whose acts the eviction of the grantee or his 
 heir takes place : if he be lawfully evicted the grantor stipulates 
 to indemnify him at all events. And it is perfectly consistent 
 with reason and good sense that a cautious grantor should stipu- 
 late in a more restrained and limited manner for the particular 
 description of title which he purports to convey, than for quiet 
 enjoyment. He may suspect or even know that his title is in 
 strictness of law in some degree imperfect; but he may at ike 
 same time know that it has not become so by any act of his own, 
 and he may likewise know that the imperfection is not of such a 
 nature as to afford any reasonable chance of disturbance what- 
 ever to those who should take under it; he may therefore very 
 readily take upon him an indemnity against an event which he 
 considers as next to impossible, whilst he chooses to avoid a re- 
 sponsibility for the strict legal perfection of his title to the estate, 
 in case it should be found at any future period to have been liable 
 to some exception at the time of his conveyance. He may have 
 a moral certainty that the existing imperfections will be effectu- 
 ally removed by the lapse of a short period of time, or by the 
 happening of certain immediately then impending or expectant 
 events of death or the like; but these imperfections, though cured 
 so as to alleviate any risk of disturbance to the grantee, 
 could never be cured * by any subsequent event, so as to [ * 475 ] 
 save the breach of his covenant for an originally abso- 
 lute and indefeasible title. The same prud(Mice, therefore, which 
 might require the qualification of one of these covenants might 
 
 (c) See per Kelly, C.B., Spoor v. Green, L. \i. i> Ex. at p. IK!. 
 
 435
 
 * 476 QUALIFYING WORDS IN ONE COVENANT ONLY. 
 
 not require the same qualification in the other of them, affected 
 as it is by different considerations, and addressed to a different 
 object;" per Lord Ellenborough, C. J., Hoivell v, Richards, 11 
 East, 642. 
 
 In Norman v. Foster, 1 Mod. 101, Hale, J., said: "If I cove- 
 nant that I have a lawful right to graat, and that you shall 
 enjoy, notwithstanding any claiming under me, these are two sev- 
 eral covenants, and the first is general and not* qualified by the 
 second." And so said Wylde, J., and that one covenant went to 
 the title, and the other to the possession; S. C, 3 Keb. 246. 
 
 Covenant for right to convey. — -A covenant for right to convey 
 extends both to the covenantor's title, and to his capacity to con- 
 vey; so that a covenant by a husband that he and his wife had 
 good right to convey was broken by her being under age ; Nash 
 V. Ashton, T. Jo. 195. 
 
 Examples of the first branch of the rule. — Covenants in pari 
 materia. — Restricted covenant for seisin, followed by absolute 
 covenant for right to convey ; held, that the latter covenant was 
 qualified; " for if he was seised in fee, he had a right to sell, and 
 when by the first covenant he covenants against his own acts, it 
 cannot be intended that immediately by another covenant to the 
 same effect he would covenant against all the world;" Nervin v. 
 Munns, 3 Lev. 46. 
 
 Conveyance in fee with warranty against the vendor and his 
 heirs; qualified covenant by the vendor for seisin, followed by 
 absolute covenant for right to convey; held, that the latter was 
 qualified; Browning v. Wright, 2 Bos. & Pull. 13. The remarks 
 of Lord Eldon, C. J., as to the efPect of covenants for title are 
 most instructive. He says, "It is certainly true that (d) the 
 words of a covenant are to be taken most strongly against the 
 
 covenantor; but that must be qualified by the observa- 
 [ * 476 ] tion that a * due regard must be paid to the intention 
 
 of the parties as collected from the whole context of the 
 
 instrument If a man purchase an estate of inheritance, 
 
 and afterwards sell it, it is to be understood, prima, facie, that he 
 sells the estate as he received it; and the purchaser takes the 
 premises granted by him with covenants against his acts. 
 Vendor entitled by descent or devise. — If the vendor has taken by 
 descent, he covenants against his acts and those of his ancestors; 
 and if by devise, it is not unusual for him to covenant against the 
 acts of the devisor as well as his own. In fact, he says, ' I sell 
 this land in the same plight that I received it, and not in any de- 
 gree made worse by me.' It was argued that, if this were so, a 
 man who has only an estate for life might convey an estate in fee, 
 and yet not be liable to the purchaser. This seems at first to in- 
 
 {d) See Eule 154, ante, p. 425. 
 
 436
 
 QUALIFYING WORDS IN ONE COVENANT ONLY. * 477 
 
 Tolve a degree of injustice, but it all depends on the fact, whether 
 the vendor be really putting the purchaser in the same situation 
 in which he stood himself. If he has bought an estate in fee, and 
 at the time of the resale, has but an estate for life, it must have 
 been reduced to that estate by his own act, and in that case, the 
 purchaser will be protected by the vendors covenants against any 
 act done by himself. But if the defect in his title depend upon 
 the acts of" those who had the estate before him, and he honestly 
 but ignorantly proposes to another person to stand in his situa- 
 tion, neither hardship nor injustice can ensue. Prima facie, in 
 the conveyance of an estate of inheritance, we are led to expect 
 ho other covenants than those which guard against the acts of 
 the vendor and his heirs. With respect to the conveyance of 
 leasehold estates, this is not always so, and there is an obvious 
 reason why this should not be so. Some of the i-.ases rest on the 
 distinction between freehold and leasehold property. All the 
 muniments of a freehold estate, and everything which can illus- 
 trate the title, is in possession of the vendor; biit this is seldom 
 the case with respect to leaseholds. With regard to many es- 
 tates it would be next to impossible to show anything but 
 the lease itself; the vendors could not produce* the [*477] 
 muniments of their estates. It sometimes happens, there- 
 fore, that parties require covenants in assignments, of this kind 
 of property which are not required in conveyances of freehold; 
 such as, an absolute covenant that the vendor holds a valid and 
 indefeasible lease." 
 
 In the assignment of a lease the vendor covenanted that he 
 had not done, &c., any act, &c., whereby, &c., the premises were 
 incumbered, &c., and that for and notwithstanding any such act, 
 &c., the lease was valid, and that he had good right to assign. 
 Held, that the covenant for right to assign was restricted; Foord 
 V. Wilso7i, 2 J. B. Moore, 592; S. C, 8 Taunt. 543. 
 
 In another assignment of a lease the covenants were that not- 
 withstanding any act of the assignor, the lease was valid; and 
 further that it should be lawful for the assignee to enter and en- 
 joy daring the term without liwful disturbance by the assignor, 
 his executors, administrators, or assigns, or any of them, or any 
 other person or persons ichomsoever, having or lawfully claiming 
 any estate, right, or interest in the premises, and that, free, cStc, 
 from all former and gther gifts, &c., whatsoever made, done, or 
 permitted by the assignor, his executors, and administrators. 
 Then followed a qualified covenant for further assurance. It was 
 held (dissentiente Park, J.) that the covenant for (]uiet enjoyment 
 was qualified, not by the words in the otlier covenants, as has 
 been sometimes said, l)ut by the concluding words "and that 
 free," &c., from all incumbrances created bv the assignor himself; 
 Nind V. Marshall, 3 J. B. Moore, 703; S. C , 1 Brod. & B. 319. 
 See this case discussed in Piatt, Cov. 373; llawle, Cov. 509. 
 
 437
 
 *479 QUALIFYING WORDS IN ONE COVENANT ONLY. 
 
 L., being entitle to a term of eleven years if C. should so long 
 live, by indentui'e reciting the demise to him for eleven years, 
 but not stating the term to be determinable on C.'s death, as- 
 signed the term to S., habendum for eleven years, and covenanted 
 with S., that notwithstanding any act by him done or knowingly 
 suffered or omitted, the lease was valid, and that the same, and 
 the term of eleven years therein expressed were respec- 
 [ * 478 ] tively * in full efPect, and in no wise become void, &c., 
 otherwise than by effluxion of time, and also that for and 
 notwithstanding any such act, &c., he had right to assign, with 
 a covenant for quiet enjoyment during the term without disturb- 
 ance by L. or any one rightfully claiming through him. C. was 
 dead before the date of the assignment. Held, that the covenant 
 that the lease and term were in full effect was restricted to the 
 acts of the vendor, &c. ; and that, therefore, the determination 
 of the term by the deatb of C. was not a breach ; Stannard v. 
 Forhes, 6 Ad. & E. 572; S. C, 1 Nev. & Per. 633. 
 
 '■'■Demise'''' (e). — In Nokes' Case, 4 Rep. 80 h; S. C, Nokes v, 
 James, Cro. Eliz. 674; Merrill v. Frame, 4 Taunt. 329; and Line 
 V. Stephenson, 6 Sco. 447; on app., 7 Sco. 69; S. C, 4 Bing, N. 
 C. 678; 5 Bing. N. C. 183; an express covenant for quiet enjoy- 
 ment was held to qualify the generality of the covenant to the 
 same effect implied in the word "demise." See ante, p. 472, and 
 Veering v. Farrington, 1 Mod. 113. 
 
 Covenant that certain lands conveyed to the plaintiff for her 
 jointure " are of a certain value, and shall so continue, notwith- 
 standing any act done or to be done by" the covenantor; held, 
 that the restriction applied to both covenants; Rich v. Rich, Cro. 
 El. 43. 
 
 Condition for bond to be void " if he were seised in fee the day 
 of the obligation made of certain lands, and if said lands should 
 be discharged of all incumbrances made by him except the joint- 
 ure of his wife." Held, that the words "except, &c.," applied to 
 both covenants; Woodyard v. Dannock, Cro. Eliz. 762. 
 
 In a lease to two lessees, they " jointly and severally covenanted 
 in manner following, viz.:" then followed a string of covenants 
 in respect of the working of a colliery; after these followed a 
 covenant by the lessor, and then a proviso " that it was thereby 
 declared by and between the said parties," and the lessor cove- 
 nanted that the lessees might sell certain coal, they, the 
 [ * 479 j lessees (not * saying and each of them), their executors, 
 &c., paying and accounting to the lessor, &c. It was 
 held that the implied covenant to pay contained in the proviso 
 was joint and several by reason of the introductory words, though 
 a covenant by the lessor was interposed; Duke of Northumber- 
 land v. Errington, 5 T. R. 522. 
 
 (e) As to the covenants implied by the word "demise," see ante, p. 422. 
 438
 
 QUALIFYING WORDS IX ONE COVENANT ONLY. * 480 
 
 Examples of the last Branch of the Rule. — Coveimnts in 
 
 dispari materiel. — It has been held that the i^enerality of a cove- 
 nant for quiet enjoyment was not restricted by a qualiHed cove- 
 nant for title; Young v. Baincock, 7 C. B. 310; Hoiccll v. Richards, 
 11 East, 633, where Lord Ellenborough, C. J., said (at p. G43): 
 "In looking at the case of Broicning v. Wright, 2 Bos. & Pull. 13, 
 in which almost all the cases on the subject are collected and con- 
 sidered, I do not land any case in which it is held that the cove- 
 nant for quiet enjoyment is all one with the covenant for title, or 
 parcel of that covenant." Conversely, that the generality of the 
 covenant for title was not restrained by a qualified covenant for 
 quiet enjoyment; Smitli v. Compton, 3 B. & Ad. 189; and Norman 
 V. Foster, 1 Mod. 101, ante, p. 475. So a covenant in the assign- 
 ment of a lease that the lease was good was not restricted by a 
 qualified covenant for quiet enjoyment; Gainsford v. Griffith, 1 
 Wms. Saund. 58; S. C, 2 Keb. 76, 201, 213; 1 Sid. 328; or by 
 qualified covenants against incumbrances, for quiet enjoyment, or 
 further assurance; Barton v. Fitzgerald, 15 East, 530; and a cove- 
 nant, in the assignment of a share in a patent, for right to assign 
 was not restrained by a subsequent covenant "that he had not by 
 any means, directly or indirectly, forfeited the right or authority 
 that he might have over the' same; "'Hesse v. Stevenson, 3 Bos. & 
 Pull. 565. 
 
 A covenant by a purchaser to indemnify the vendor from cer- 
 tain rents was held not to be restricted by the covenant to pay 
 them being restricted to the time the purchaser was in posses- 
 sion; Crossfield v. Morrison, 13 Jur. 565; S. C, 7 C. B. 286. 
 
 "Where A. covenanted to pay certain annuities and to indem- 
 nify the vendor agayist them, it was held that these 
 * were two separate covenants, the former of which was [ * 480 ] 
 broken by non-payment, though the vendor was not 
 asked to pay them; Saivard v. Austin, 10 J. B. Moo. 55. 
 
 In Trenshard v. Hoskins, Winch. 91, Litt. Rep. 62, 65, 185, 
 203, the covenants were that vendors were seised in fee, and that 
 they or one of them had good right to convey, and that there was 
 no reversion or remainder to the king by any act done by them. 
 Notwithstanding the statement in Piatt on Covenants, 376, that 
 it is doubtful how the case was decided, citing 1 Wms. Saund. 60 
 (note), and 1 Sid. 328, it appears that the decision on appeal was 
 for the plaintiff (Litt. Rep. 203), i.e., that the qualifying words 
 did not restrain the first covenants. ' 
 
 Covenant by lessee " that he would from time to time during 
 the term, after three months' monition, sufficiently repair, and at 
 the end of the term leave it sufficiently repaired." Jleld, that the 
 clause to leave it well repaired at the end of the term was dis- 
 tinct, and did not, depend on the previous clause; Harslet v. 
 Butcher, Cro. Jac. 644. 
 
 Covenants in a conveyance of a manor by A. that bo was seised 
 
 439
 
 * 481 COVENATsTS AGAINST INCUMBRANCES — QUIET ENJOYMENT. 
 
 in fee notwithstanding any act done by him or any of his ances- 
 tors, and that no reversion was in the king or any other, and that 
 the manor was then of a certain annual value, and that the plain- 
 tiff should enjoy free from incumbrances by him or any of his an- 
 cestors. Held, that the covenant as to value was a distinct and 
 unrestricted covenant; Cray ford v. Cray ford, Cro. Car. 106. 
 
 Covenants in conveyance by A. that he was seised in fee not- 
 withstanding any act done by him, &c., and that the lands were 
 of a certain annual value. Held, that the covenant as to value 
 was an absolute unrestricted covenant; Hughes v. Bennett, Cro. 
 Car. 495; 1 W. Jo. 403. 
 
 Restrictive words rejected on the context. — According to Rule 
 17 {ante, p. 78), restrictive words may be altogether rejected if 
 inconsistent with another part of the covenant. Thus, 
 [ *481 ] in a case where, on * dissolution of partnership, B. cove- 
 nanted that for and notwithstanding any act done by 
 him, it should be lawful for A. to receive certain moneys without 
 any let, suit, or interruptiun of B., his executors, or administra- 
 tors, or any person claiming under him or them, it was held that 
 the words "for, &c.," being inconsistent with the subsequent 
 parts of the covenant, ought to be rejected, and that the receipt 
 of the money by B.'s executors was a breach: Belcher v. Sike, 8 
 B. & Cr. 185. 
 
 Covenant against Incumbrances. 
 
 Incumbrances of which purchaser has notice. — It is doubtful 
 whether a covenant against incumbrances in a purchase deed ex- 
 tends to those incumbrances oa which the purchaser has notice: 
 Savage v. Whitebread, 3 Rep. Ch. 24; Levett v. Withrington, 
 Lutw. 97; Vane v. Barnard, Gilb. 6; Hunt v. White, 37 L. J. ' 
 N. S., Ch. 326; Ogilvie v. Foljambe, 3 Mer. 53; Co. Lit. 384 
 (Butler's note); Dart, V. & P. 5th ed. 786; Spoor v. Green, L. R. 
 9, Ex. 99. 
 
 Covenant for quiet Enjoyment. 
 
 Object of covenant for quiet enjoyment . (a). — The ordinary 
 covenant for quiet enjoyment is only a covenant to secure the title 
 and possession to the covenantee, and accordingly it is broken if 
 the property be in lease, so that the covenantee cannot obtain 
 possession; Ludivell v. Neivman, 6 T. R. 458, but it is not a cove- 
 nant guaranteeing that he may use the land in any manner he 
 pleases. Thus, where a lessor, who had bought property under 
 a restrictive covenant not to carry on the trade of a beer seller, 
 
 (a) See per Lord Ellenborough, C. J., Howell v. Richards, 11 East, 642, 
 eited, ante, p. 475. 
 
 440
 
 COVENANT FOR QUIET ENJOYMENT. * 483 
 
 leased a part of it without any such restriction, and the lessee 
 opened a public house, but was restrained by injunction at the 
 suit of his lessor's vendor, it was held, in an action by the lessee 
 for breach of the covenant for quiet enjoyment, that 
 there was no breach, * as the covenant did not amoimt [ * 4S'2 ] 
 to a warranty to the lessee that he might use the pro- 
 perty for any purpose he pleased, and this, thouj^h certain other 
 trades were expressly excepted; Legal procediugs — Dennett \. 
 Atherton, L. R. 7 Q. B. 816, where the Court said (at p. 320): — 
 " There can be no doubt that a proceeding of the Court of 
 Chancery or of a court of common law, interfering with the title 
 and possession of the land, does amount to a breach of the cove- 
 nant for quiet enjoyment, as in the case of dower, common, 
 rent, or such like; Calthorp v. Heijton, 2 Mod. 54; Hunt v. Dan- 
 vers, T. Raym. 370. On the other hand, it has long been settled 
 that such a proceeding, interfering only with a particular mode 
 of enjoyment of the land, or part of it, but not with the title or 
 possession, is not a breach: Morgan v. Hunt, 2 Vent. 213. 
 
 But in Sanderson v. Mayor, &c., of Berwick, 33 W. R. 07, in 
 the written judgment of the C. A., it is said: " We have not lost 
 sight of the observations on the nature of such a covenant which 
 were made by Willes, J., in Dennett v. Atherton. Bnt it appears 
 to us to be in every case a question of fact, whether the qiiiet en- 
 joyment of the land has or has not been interrupted, and where 
 the ordinary and lawful enjoyment of the demised land is sub- 
 stantially interfered with by the acts of the lessor, or those law- 
 fully claimingunder him, the covenant appears tons to be broken, 
 althoiagh neither the title to the land nor the possession of the 
 land may be otherwise affected." 
 
 Suit in equity. — It used to be thought that a suit in equity was 
 not a disturbance within the meaning of the covenant, on the 
 ground that a court of law could not recognize proceedings in 
 equity: see Piatt on Covenants, 322; but it is now decided that 
 a suit in equity, by which the covenantee is disturbed, is a 
 disturbance within the meaning of the covenant: Calthorp v. 
 Hai/ton. 2 Mod. 54; Hunt v. Danvers, T. Raym. 370; Morganv. 
 Hunt, 2 Ventr. 213. Selby v. C/inte, F. Moo. 859; S. C, Brownl. 
 23, is wrongly reported; see T. Raym. 371. 
 
 " In all cases where any person hath title, the covenant 
 [for qiiiet enjoyment] is not broken until some entry 
 or * other actual disturbance be made by him upon his [ * 483 ] 
 title;" Shep. Touch. 171, adopted by Brett, M. R., in 
 Howard v. Maitland, 11 Q. B. D. 095. In that case, in a con- 
 veyance of land by the defendant to the plaintiff, the defendant 
 covenanted for title and quiet enjoyment, notwithstanding any 
 act or thing done or suffered by him, or any of his ancestcM's or 
 predecessors in title. Aftei- the conveyance, a decree was made 
 in a suit in chancery, in which the plaintiff in the action, though 
 
 441
 
 * 484 COVENANT FOR QUIET ENJOYMENT. 
 
 not a party to the suit, was represented, being one of a class of 
 persons against whom the suit was brought, and by the decree the 
 land so conveyed by the defendant was declared to be subject to 
 a general right of common over it; held, that the decree alone, 
 without any entry or actual disturbance of the plaintiff in his 
 possession, was no breach of the defendant's covenant for quiet 
 enjoyment. But Brett, M. R., said that if, after that decree, any- 
 body had brought an action against the plaintiff^ for interfering 
 with the right of common, he would have had no 'defence, and he 
 was not prepared to say that judgment recovered in such an action 
 might not have been a disturbance. 
 
 Rule 173. — " Interruption^^ means lawful interruption. — The 
 words "interruption," "disturbance," and the like, in the cove- 
 nant for quiet enjoyment, mean lawful interruptions and disturb- 
 ances only. 
 
 See on this covenant Piatt, Gov. p. 312, et seq., where it is ob- 
 served that it was formerly held to extend to tortious evictions or 
 interruptions, but that " this doctrine was never freely acquiesced 
 in, and a different rule is now established." And see Rawle on 
 Gov. for Title, p. 133, to the same effect. 
 
 Mr. Butler (Shep. T. .166) says: "It is now settled that a 
 
 general warranty ol title or enjoyment, extends only to evictions 
 
 by persons having title, while a covenant for enjoyment 
 
 [ * 484 ] without eviction by persons particularly * named, is a 
 
 warranty against wrongful as well as rightful entries, 
 
 &.C." (see First Exception, infra). 
 
 Rule stated. — " The rule has, I think, been correctly stated at 
 the bar, that where a man covenants to indemnify against all 
 persons, this is but a covenant to indemnify against lawful title; 
 and the reason is, because as it regards such acts as may arise 
 from rightful claim, a man may well be supposed to covenant 
 against all the world; but it would be an extravagant extension 
 of such a covenant if it were good against all the acts which the 
 folly or malice of strangers might suggest, and therefore the law 
 has properly restrained it within its reasonable import, that is, to 
 rightful title. It is, however, different where an individual is 
 named, for there the covenantor is presumed to know the person 
 against whose acts he is content to covenant, and may, therefore, 
 be reasonably expected to stipulate against any disturbance from 
 him, whether by lawful title or otherwise:" per Lord Ellen- 
 borough, G. J., Nash v. Palmer, 5 M. & S. 379. 
 
 A. leased for years, with a clause of Avarranty. The lessee was 
 
 ousted by one who had no right: held, that the lessee could not 
 
 maintain covenant against the lessor, for he was ousted by 
 
 •wrong, and had his remedy by trespass or ejectment against the 
 
 442
 
 COVENANT FOR QUIET ENJOYMENT. * 485 
 
 man who ousted him, but if he be ousted by title paramount, 
 then, as he has no recedy against the person ousting him, he 
 would have a remedy against the lessor by thn warranty: 2G H. 
 8, 3 b., cited 2 Wms. Saund. 177a.; (ed. 1871, vol. 2, p. 525). 
 
 " When a man covenants his lessee shall enjoy his term against 
 all men, he doth neither expressly covenant for his enjoyment 
 against tortious acts, nor doth the law so iaterpret his covenant:" 
 Hayes v. Bickerstaffe, Vaugh. at p. 123. 
 
 Examples.— 22 H. 6, 52, pi. 26, cited 3 T. R. 587 (note); 
 Chanffloicer v. Priestly, Cro. Eliz. 914; S. C, Yelv. 30; S. C. 
 Cliandflower v. Waterhotise d- Presbye, Noy, 50; White v. Eiver, 
 Cro. Eliz. 823; Kirhy v. Hansaker, Cro. Jac. 315; Broking v. 
 Cham, Cro. Jac. 425; Leigh v. Gotyer, Cro. Jac. 444; 
 Hamond v. Dod, Cro. Car. 5; * Tisdale v. Essex, Hob. [ * 485 j 
 34; S. C, F. Moo. 861; 1 Rol. R. 397; Dudley v. Fol- 
 liott, 3 T. R. 584; Watkeys v. De Lancey, 4 Doug. 354; Seddon 
 V. Senate, 13 East, 63 at 69; Wottonv. Hele, 2 Wms. Saund. 175n. 
 (ed. 1871, p. 524;) S. C, Wootton v. Heal 1 Mod. 66, 290; S. 
 C, 1 Lev. 301; 1 Sid. 466; 2 Keb. 684, 703, 709, 723; Hall v. 
 City of London Brewery Co,, Limited, 2 B. & S. 737; Jeffryes v, 
 Evans, 19 C. B. N. S. 246. 
 
 Observation.— Cot'enaw^ extended to tortious acts. — Of course 
 the covenant may be'so worded as to extend to tortious disturb- 
 ances, as in Chaplain v. Soidhgate, 10 Mod. 384, where the cove- 
 nant was for enjoyment " against all claiming or 2)retending to 
 claim any right : " S. C, Southgate v. Chaplin, 1 Com, Rep. 230; 
 see Hunt v. Allen, Winch. 25. 
 
 First Exception. — Covenant against acts of covenantor, &c. — 
 W^here the disturbances, &c., are those of covenantor himself, or 
 of him and his heirs or executors, the covenant extends to unlaw- 
 ful disturbances. 
 
 It was held in Davie d. Sacheverell, 1 Rol. Abr. 429, pi. 7, that 
 a lessor's covenant against laivful disturbance by the lessor is not 
 broken by his entry as a mere tre.spasser on tlie lessee; but subse- 
 quently a distinction was taken between a tortious entry by a 
 stranger and by the covenantor himself; and it is now admitted 
 law that the covenantor cannot plead that his entry was unlawful 
 in order to avoid the consequences of his own wrongful act; for, as 
 against the covenantor himself, the Court will not consider the 
 word "lawful; " Piatt, Cov. 319, citing Cave \. Brookeshy, W. 
 Jo. 360; Tisdale v. Essex, Hob. 34; Penning v. Plat, Cro. Jac. 
 
 383; Coi'us v. , Cro. El. 544; Andreuj\s Case, of Graifs Inn, 
 
 Cro. El. 214. See also Sugd. V. & P. 14th ed. 600. 
 
 Examples. — Lloyd v. Tomkies, 1 T. R. 671; Grossev. Younge, 
 2 Show. 425 (in both these cases the acts done by the covenantor 
 
 443
 
 * 487 COVENANT FOR QUIET ENJOYMENT. 
 
 amounted to a claim of title by him); Ratcliff v. , Brownl. 
 
 80 (where the entry was by the executors) ; Andrews v. Paradise, 
 8 Mod. 319, where the covenantor erected a gate across a way 
 
 leading to the close which he had conveyed; see also 
 [*486] Hunt V. Allen, * Winch. 25. Co>7fm, where the entry 
 
 was for sporting; per Lord Ellenborough, C.J., Seddon 
 V. Senate, 13 East, p. 72. See also Penn v. Glover, Cro. El. 421. 
 
 Second Exception. — Covenants against acts of specified per- 
 gQYt_ — Where the disturbances, &c., are those of a specified person 
 they extend to all his acts, both lawful and unlawful. See Shep. 
 Touch. 166, cited ante, p. 483. 
 
 Examples. — Foster V. Mapes, Cro. El. 212: Lucy v. Lewiston, 
 Freem. K B. 103; S. C, 3 Keb. 163; Nashy. Palmer, 5 M. & S. 
 874; B'oivle v. Welsh, 1 B. & C. 29; S. C, 2 D. & By. 133; see 
 other cases collected in Piatt on Covenants, 317. 
 
 Observation. — Recital. — A recital may show that the covenant 
 is intended to apply to the acts of a particular person; Perry v, 
 Edwards, 1 Stra. 400. 
 
 Disturbance caused by covenantee's otvn act. — It need hardly be 
 observed that a covenant for quiet enjoyment is not broken when 
 the disturbance, &c., is the natural consequence of the cove- 
 nantee's own act or default. 
 
 " All the judges agreed that when a man binds himself and his 
 heirs to warranty, they are not bound to warrant new titles of 
 actions accruing through the feoffee or any other after the war- 
 ranty made, but only such titles as are in esse at the time of the 
 warranty made. And also here the heir, who is executor and 
 plaintiff in this action, is the cause of the breach of the condi- 
 tion, whereof he shall not himself take advantage so as to give 
 himself an action by his own act;" PJxecutors of Grenelife v. 
 
 W , Dy. 42a. see 426. The action in this case was on the 
 
 warranty on the sale of a copyhold, and the lord entered for rent 
 falling due after the sale. See to the same effect. Dyer, 30a, 
 where the covenant was for enjoyment " without interruption of 
 any one." 
 
 In Morgan v. Hunt, 2 Vent. 213, the defendant leased a house 
 to the plaintiff with an absolute covenant for quiet en- 
 [ * 487 ] joyment : held, that by obtaining an injunction * against 
 the plaintiff' for ploughing up meadows the defendant 
 had not broken his covenant. This case appears to have been 
 decided on the ground that the disturbance was not in estate or 
 title. 
 
 444
 
 COVENANT FOR QUIET ENJOYMENT. * 488 
 
 Consti'uction of Special Words. 
 
 ^^ Rents,'''' — Covenant to hold "clear of" {inter alia) all rents; 
 held, that the covenantee ought to be discharged of all quit rents 
 falling due after hig conveyance, " for a quit rent is a rent;'' llam- 
 vwnd V. Hill, 1 Com. Kep. ISO. 
 
 ^'During the teiin."- — Covenant that lessee should hold land 
 " during the term," " without interruption, and discharged from 
 tithes," and further, "if the tithes were recovered against him 
 during the term,^^ to recoup him. After the term, an action was 
 brought against lessee for tithes which accrued due during 
 the term. Held, that this was within the words of the covenant; 
 Lanning v. Lovering, Cro. Eliz. 916. 
 
 In Evans v. Vaughan, 4 B. «& C. 261; S. C, 6 Dow. & Ry. 349, 
 where a tenent for life demised for a term of years, it was held 
 that the words " during the said term " meant during the term 
 which the lessor purported to grani, and not merely a term de- 
 terminable on the death of the lessor. 
 
 ^'Acts.'''' — " Means." — " The word ' acts ' means something done 
 bv the person against whose acts the covenant is made and the 
 word 'means' has a similar meaning, something proceeding from 
 the person covenanting," or the person against whose acts the 
 covenant is made; Spencer v. Marriott, 1 B. & C. 457; 2 D. «fe 
 Ry. 665. In that case, the mesne lessor omitted to inform her 
 lessee that there was a clause in the original lease prohibiting the 
 carrying on of trade, and the lessee underlet to a tenant who was 
 evicted for doing so. This was held to be no breach of the mesne 
 lessor's covenant against eviction by or from her or by or through" 
 her acts, means, right, title, forfeiture, privity, or procurement. 
 
 See, to the same effect, Dennett v. Atherton, L. R. 7 
 * Q. B. 316; where the question was whether a decree [ *488] 
 in Chancery restricting a particular use of the land by 
 reason of a covenant of the lessor, but not otherwise interfering 
 with the title, was' a breach of the covenant for quiet enjoyment 
 See ante, p. 482. 
 
 But if a lessee, subject to a condition of re-entry on non-pay- 
 ment of rent, underlet and covenant for quiet enjoyment " with- 
 out the impeachment of him or of any other occasioned by his 
 impediment, interruption, means, procurement, or consent," and 
 the sub-lessee is ejected for default of his lessor in paying the 
 rent reserved by the original lease, this is a breach of the cove- 
 nant: Stevenson v. Poivell, 1 Bulstr. 182. 
 
 " Means and procurement." —But " ' means and procurement ' 
 have a large extent" (Palmer, 340); so that in Butler v. Snin- 
 nerton, 2 Rol. Rep. 286; S. C, Palm. 338; Cro. Jac. 656; where 
 a husband procured a conveyance to himself, remainder to his 
 wife, it was held that the wife chiimed " by the means " of the 
 husband, " although she claimed by title derived from another." 
 
 445
 
 * 489 COVENANT FOR QUIET ENJOYMENT. 
 
 " Neglect and defaulV — "A neglect and a default seem to im- 
 ply something more than the mere want of discretion witti re 
 spect to his [i.e., the covenantor's] own interests; something like 
 the breach of a duty or legal obligation existing at the time; 
 these words, in their proper sense implying the not doing some 
 act to secure bis title which he ought to have done, and which he 
 had the power to do; and the not preventing or avoiding some 
 danger to the title, which he might have prevented or avoided;" 
 per Tindal, C. J., Woodhouse v. Jenkins, 9 Bing. 431, at p. 441; 
 S. C, 2 Moo. & Sc. 599. 
 
 ^^ Default,'''' quit rents accrued before conveyance to purchaser. — 
 Covenant in conveyance in fee, for quiet enjoyment, "without any 
 action, &c., by " defendant, or those claiming under him, or by 
 or through his or their "acts, means, default,''^ &c. Held, that 
 a breach was well assigned in respect of certain quit rents in 
 arrear at the time of the conveyance, though not stated to have 
 accrued while the covenantor was owner of the premises 
 [ * 489 ] on the ground that it was owing to his " default " * that 
 they remained unpaid ; Howes v. Brushfield, 3 East, 491. 
 
 Lord St. Leonards observes on this case (Sugd. V. & P., 14th 
 ed. 602) that the argument of the Court would apply to a mort- 
 gage or any other incumbrance created by a former owner, and 
 adds a caution as to applying this decision to cases arising in 
 practice. 
 
 It has been held -that a covenant for quiet enjoyment, "quietly 
 and clearly acquitted of and from all grants, &c., rentcharges," 
 &c., extends to a quit rent payable to the lord of the manor ra- 
 tione temiroe, although not in arrear at the time of conveyance; 
 Hammoyid v. Hill, Comyns, Rep. 180; see Lanning v. Lovering, 
 Cro. Eliz. 916, stated ante, p. 487. 
 
 " Neglect or defaults — It is not a " neglect or default to accept 
 a title with knowledge that it is defeasible, even from persons 
 who have it in their power to make it absolute;" Woodhouse v. 
 Jenkins, 9 Bing. 431 ; S. C, 2 Moo. & Sc. 599. In that case a 
 lessee, who held under a lease granted by a tenant for life and 
 remainderman in tail with notice of their title, granted an under- 
 lease with a covenant against ejectment of him, his heirs, execu- 
 tors, &c., " or by any other person or persons lawfully claiming 
 or to claim by, from, or under him, them, or any of them, or by 
 his, their, or any of their acts, means, consent, neglect, default, 
 privity, or procurement;" and the underlessee was ejected by a 
 remainderman in fee. The tenant in tail having died without 
 issue: Held, that the covenant was not broken: and Tindal, C. J., 
 said (at p. 441), "No act is done by the lessor; no consent is 
 given to the eviction; there is no privity, no procurement.'''' 
 
 '■'■Default.''^ — There is a dictum of Lord Loughborough, C, in 
 Lady Caven v. Pulteney, 2 Ves. Jun. 544; S. C., 3 Ves. 384: to 
 the effect that a lessor who, reciting that he was seised in fee, 
 446
 
 COVENANT FOR QUIET ENJOYMENT. * 491 
 
 covenanted for quiet enjoyment against himself, or by his default, 
 &c., and who always had it in his power by an easy act, as suffer- 
 ing a recovery to make himself owner of the laud which he 
 leased, would be liable as for his default if ho neglected 
 to do so and his tenants * were ejected by the remain- [ * 490 ] 
 dermen; on which Lord St. Leonards observes (Sugd. 
 V. & P., 14th ed. 603) that "The ground of this opinion must 
 have been that the eviction was owing to the default of the lessor 
 in not suffering a recovery." 
 
 '• Permit and suffer." — " The words ' permitting and suffering' 
 do not bear the same meaning as ' knowing of and being privy 
 to; ' the meaning of them is that the defendant [the covenantor] 
 should not concur in any act over which he had a control; " per 
 Bayley, J., Hobson v. Middleton, 6 B. & C. 295, at p. 303. And 
 " the covenant extends to such permissive acts only as have, 
 through the permission, an operative effect in charging the es- 
 tate; " per Holroyd, J., ibid, at p. 304; S. C, 9 D. & R. 249; 
 where it was held that a covenant by the vendor's dower trustee, 
 that he had not " permitted or suffered," &c., was broken by his 
 having previously conveyed his estate away, but not broken by 
 his being a party to a conveyance whereby the vendor made a 
 mortgage. 
 
 " Suffer.'" — But where a lessor was bound to " suffer " his 
 lessee to enjoy, " and that without inteiTuption by himself or any 
 other," it was held that an entry on the lessee under an elder 
 title was no breach, unless the lessor actually procured the dis- 
 turbance; Anon., Dy. 255a, pi. 4. 
 
 ^' Siiffer," charging order. — In Roffey v. Bent, L. R. 3 Eq. 759, 
 Lord Romilly, M. R., said, " the word ' suff'er ' . . . . may, un- 
 doubtedly, be used in an active sense; but when the words 'shall 
 do or suffer any act ' are used, it is to be understood as meaning 
 to endure or sustain, and to apply to something being done in 
 invitum;" and consequently, /teZrf, that a charging order on a 
 fund was an act suffered by a person whereby he lost his interest 
 in a fund. 
 
 " Permit." — A covenant by defendant to permit the plaintiff to 
 sow clover among the defendant's barley is not broken by the 
 defendant sowing his barley without notice to the plaintiiT^', for 
 the defendant does not thereby prevent the plaintiff from also 
 sowing; Hughes v. Richman, 1 Cowp. 125. 
 
 Who are persons " claiming tinder" the ror^enantor. [*491 ] 
 
 Appointee under' prior power. — Covenant for quiet enjoyment, 
 against the acts of "any person or persons claiming or to claim by, 
 • from, or under" the lessor, in a lease of land whicli was limit(>d to 
 him for life, remainder to trustees to securea jointure of £500 for 
 his wife, with remainders over, and a joint })ower in the lessor and 
 
 447
 
 *• 492 COVENANT FOR QUIET ENJOYMENT, 
 
 his wife to revoke and appoint new uses. The power of revoca- 
 tion was exercised, new uses appointed, and a person taken under 
 the appointment evicted the lessee. It was held that " As the 
 husband was a necessary party to the second declaration of uses 
 by which the estate was limited to the evictor, the evictor cer- 
 tainly claimed under him within the meaning of the covenant. 
 Undoubtedly the husband had covenanted against his own acts, 
 and the new limitations were created by one of ^lis acts;" Hurd 
 V. Fletcher, 1 Doug. 43. 
 
 Prior appointee. — It has been held that a covenant for quiet 
 enjoyment against all persons " claiming by, from or under " the 
 covenantor, is broken by the entry of a prior appointee under a 
 joint exercise of a power by A. B. and the covenantor; Calvert y. 
 Sebright, 15 Beav. 156; or by entry of the mortgagees of a term 
 created before the lease with the Concurrence of the covenantor, 
 and assigned to the mortgagees v;ith his concurrence, though the 
 estate did not pass from him; Carpenter y. Parker, 3 C. B. N. S. 
 206; 27 L. J. N. S., C. P. 78. 
 
 Where covenant prospective only. — In Anderson\. Oppenheime^, 
 3 Q. B. D. 602 (at p. 607), Brett, L. J. (referring to Andreics v. 
 Paradise, 8 Mod. 318; Shaiv v. Stenton, 2 H. & N. 858; and Cal- 
 vert V. Sebright, 15 Beav. 156), said, "In the cases which have 
 been cited to us, an authority to do an act had been given by the 
 lessor before the granting of the lease, and afterwards an act had 
 
 been done pursuant to that authority It was, therefore, 
 
 an act for which the lessor was responsible .... and the act 
 
 was done during the enjoyment by the lessee." But in that case 
 
 it was held that the covenant was prospective, and did 
 
 [ * 492 ] not * extend to the consequences of an act done by the 
 
 lessor before the demise. 
 
 But the covenant may be so worded as to extend to past acts. 
 Thus where a man in 1666 covenanted for quiet enjoyment for 
 nine years from 1664, a plea that the lessee had not been dis- 
 turbed at and post the sealing of the indenture was held bad; 
 Leans v. Helliorov Helliar, 2 Keb. 291, pi. 73; 377, pi. 38. 
 
 Distress for land tax, due prior to demise. — But it has been 
 held that a distress for land tax due from the covenantor prior to 
 a demise is not a breach of a covenant for quiet enjoyment, with- 
 out any disttirbance of or by the lessor " or any other person 
 lawfully claiming or to claim from or under him;" for "the 
 plaintiffs quiet enjoyment had not been disturbed by any one 
 claiming by, from, or under the defendant, but by some one 
 claiming against him;" per Lord Denman, C. 3., Stanley v. 
 Hayes, 2 Gale & D. 411; 3 Q. B. 105. 
 
 Tenant in tail. — A tenant in tail is a person claiming under the 
 covenantor, who settled the land on himself for life, remainder to 
 the tenant in tail; Evans y. Vaughan, 4 B. & C. 261; S. C, 6 
 Dow. & Ry. 349. 
 448
 
 COVENANT FOR FURTHER ASSURANCE. * 493 
 
 Resettlement. — A., being seised of an undivided moiety of a piece 
 of land, settled it on himself for life, remainder to bis eldest son in 
 tail, and subsequently leased it, with a covenant for quiet enjoyment 
 against any acts of himself, his heirs or assigns, '• or any other 
 person lawfully claiming by, from, or under him;" and then on 
 his eldest son's marriage the land was settled to A. for life, re- 
 mainder to his son for life, remainder to such of his son's sons as 
 his son should appoint; held, that a grandson, to whom his son 
 had appointed it, claimed under A. ; Steele v. Mitchell, 2 Dr. & 
 Wal. 568; 3 Ir. Eq. R. 1. 
 
 See further, as to disturbances of the covenantee by persons 
 claiming under grants by the covenantor prior to his covenant; 
 'Blatchford v. Mayor of Plymouth, 3 Bing. N. C. 691 ; Thackeray 
 V. Wood, 5 B. & S. 325; S. C, 6 B. & S. 766. 
 
 Dower. — A man's widow claims under him in respect of her 
 dower, but his mother does not; Anon., Godb. 333. 
 
 * Things ap2Jurtenant,&c. — The covenant for quiet en- | * 4'J3 \ 
 joyment extends to everything that isappurteuant or in- 
 cident to the grant to which it relates: e. g., a right of way of 
 necessity over the covenantor's other ground: Morris v. Edging 
 ton, 3 Taunt. 24; Andrews v. Paradise, 8 Mod. 318. 
 
 Covenant for Further Assurance (a). 
 
 Act must he necessary. — In a covenant to do all "reasonable 
 acts " for further assurance, " a reasonable act means such an act 
 as the law requires, and if it be an unnecessary act, it is not a 
 reasonable act, or one which would be required by law;" i>er 
 Wood, B., Warn v. Bickford, 9 Pri. at p. 51; Sugd. V. & P., 14th 
 ed. 613; see Piatt, Cov. 342, Dart, V. & P. 787; Rawle, Cov., ch. 
 vii., p. 196. 
 
 And practicable. — The act required must be practicable. As 
 to illness, lunacy, or death of the covenantor, whereby the act re- 
 quired ceases to be reasonable or practicable, see Anon., F. Moo. 
 124, pi. 270: Nash v. Aston, T. Jo. 195; S. C, Skin. 42; Pet and 
 Galley's Case, 1 Leon. 304; Rawle, Cov. 197. 
 
 Where time for performance is limited. — If there be by the 
 covenant a time limited within which acts of further assurance 
 are to be done, the purchaser must make request within tlio time 
 named; Na.sh v. Aston, T. Jo. 195; S. C, Skin. 42; it is sufli 
 cient if he makes a general request; Pudsey v. Neuson, YeJv. 44; 
 1 Brownl. 84; Moore, 682; even if the assurance is to be such as 
 shall satisfy the purchaser's counsel; Baker v. BuMrode, 2 Lev. 
 95; S. C, T. Ray. 232. The case is differently reported in 1 
 Mod. 104. 
 
 " As counsel shall ari7;i.sY'."-- Sometimes the covenant is to make 
 "snch further assurance as counsel shall advise;" Sugd. Y. & P., 
 
 (a) Seee now tlie C. A., 1881, s. 7. 
 29 INTEEPRETATION (JK DKKDH. 449
 
 * 495 COVENANT FOR FURTHER ASSURANCE. 
 
 14th ed. 614; in this case the purchaser must tender the intended 
 assurance to the covenantor; Higginbottom^s Case, 5 Rep. 196; 
 Bennetts Case, Cro. El. 9; here the purchaser himself, though 
 learned in the law, cannot advise; RosewelVs Case, 5 
 [*494] Kep. 196; and the counsel is the purchaser's * counsel; 
 Higginbottoni's Case, 5 Rep. 196; Piatt, Gov. 349; Rawle, 
 Cov., ch. vii. 195, note (4), where it is remarked that by the 
 usual modern form the assurance may be deyised by the pur- 
 chaser or his counsel. The form of covenant implied by C. A. 
 1881, e. 7 (1) A., has no reference to counsel, &c. 
 
 What acts within the covenant. — It has been held that under 
 a covenant for further assurance the covenantee can require the 
 execution of a duplicate conveyance where he has handed over 
 the original to a purchaser from him of part of the estate; Sugd. 
 V. & P., 14th ed. 613; Napper v. Lord Allington, 1 Eq. Ca. Abr. 
 166, pi. 4, but this decision was reversed on rehearing on another 
 point; Dart, V. & P. 788; Piatt, Cov. 344, 345 (a). 
 
 It seems doubtful whether the covenantor can be required to 
 execute a covenant to produce title-deeds to the purchaser; Fain 
 V. Ayers, 2 Sim. & St. 533; reported differently 1 Russ. 259 n. 
 (but see Sugd. V. & P., 14th ed. p. 438, where it is said that this 
 case did not decide the point) ; Hallett v. Middleton, 1 Russ. 256, 
 257; but Mr. Dart (V. & P., 5th ed. 787, note (6) says, " e^ 
 quceref and in Piatt, Cov. 347 foil., it is said that considerable 
 doubt exists; or to give fresh covenants for title; Coles v. Kinder, 
 Cro. Jac. 571; Pudsey v. Netcsam, Yelv. 44; but see Dart, V. & 
 P. 787, note (c), who says this point is not clear; 9 Jarm. Con v. 
 by Sw. 401; Lassels v, Catterton, 1 Mod. 67. 
 
 Note the distinction " between mere agreements to convey by 
 reasonable assurance, which are held to carry with them a right 
 to covenants for title in the deed of conveyance, and a right to 
 the insertion of those covenants in the deed of further assurance 
 itself;" Rawle, 202; Sugd. V. & P., 14th ed. 615. 
 
 Tenants in tail. — As to further assurances bv tenants in tail, 
 see Davis v. Tollemache, 2 Jur. N. S. 1181; S. C., 28 L. T. O. S. 
 188; Piatt, Cov. 345, citing Edivards v. Applebee, 2 Bro. C. C. 
 
 652 note; Ex parte Wills, 2 Cox, 233. 
 [ * 495 ] * But see the Fines and Recoveries Act, 3 & 4 Wm. 
 c. 74, g. 47, by which courts of equity are prevented 
 from giving any efFect to dispositions by tenants in tail, which 
 in courts of law would not be effectual, i. e., which are not per- 
 fected in the manner required by that Act. See Fry on Spec. 
 Perf., 2nd ed. 45. 
 
 Estate tail of bankrupt (a). — Where a tenant in tail made a 
 mortgage containing a covenant for further assurance, and be- 
 
 (a) Bennett v. Ingohlsby, Finch, Rep. 2S2, does not appear to have been de" 
 cided on the construction of the covenant. 
 
 (a) See the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, s. 56, sub-s. 5. 
 
 450
 
 COVENANT FOR FURTHER ASSURANCE. * 496 
 
 came bankrupt, it was held that his assignees in bankruptcy must 
 execute further assurances, though the bankrupt had not barred; 
 Pije V. Daubiiz, 8 Bro. G. C. 595; Sugd. V. & P., 14th ed. 013; 
 but see Dart, V. <t P. 5th ed. (87. 
 
 Specific performance. — " If the title prove bad, and the defect 
 can be supplied by the vendor, the purchaser may tile a bill in 
 equity for a specific performance of the covenant for further as- 
 sui-ance. And a vendor who has sold a bad title will, under a 
 covenant for further assurance, be compellable to convey any 
 title which he may have acquired since the conveyance, although 
 he actually purchased such title for valuable consideration;'' 
 Suffd. V. & P., 14th ed. 612, citing Taylor v. Debar, 1 Ch. Ca. 
 274; 2 Ch. Ca. 212; Seabourne v. Poicell, 2 Tern. 11; Piatt, Gov. 
 343; Langford v. Pitt, 2 P. AVms. 029; Dart, V. k P., 5th ed. 
 788, who cites Otter v. Lord Vaux, 2 K. & J. 050; 6 Dv' G. M. & 
 G. 038; but see Dat-ts V. Tollemache, 2 Jur. N. S. 1181; S. C, 
 28 L. T. O. S. 188, stated pos^ p. 497; and Mr. Dart (V. & P. p. 
 808) observes that the right seems to exist independently of the 
 covenant; see Noel v. Bewley, 3 Sim. 110; Jennings v. Blencoice, 
 2 Vern. 609. 
 
 But on the passage above cited from Sugd. V. & P. it has been 
 remarked that " the language, unless carefully considered, might 
 mislead:" that " it is undoubtedly correct if the covenant for 
 further assurance is the only one in the deed, or if the other cove- 
 nants are unlimiterl or general. But if the covenant for further 
 assurance is, either expressly or by implication, limited 
 * or restrained bv other covenants, or by the grant it- [ * 490 ] 
 self (Davis v. Tollemache, 2 Jur. N. S. 1181; S. G., 28 
 L. T. O. S. 188, stated post, p. 497), then the remark would seem 
 to have rather too broad an application; " Rawle, Gov. 199, note 
 (2), where it is also observed that Taylor v. Debar, was clearly a 
 case in which the conveyance of the after-acquired title was pro- 
 perly compellable, and that in Seabourne v. Poicell, there was 
 not any covenant for further assurance. 
 
 "These cases (viz., Seabourne v. Poicell, ubi supra; Noel v. 
 Bewhj, ubi supra; and Morse v. Faulkner, 1 Anst. 11; 3 Swanst. 
 429 note) seem to me to establish this, that if a man sells an 
 estate (and the principle is just the same if he grants his land 
 in mortgage, or creates an annuity issuing out of thorn) and the 
 title is afterwards defeated, but subsequently he acquires the same 
 lands under another title, there is an equity arising out of the 
 contract to fasten it upon the new title;" per Sugden, G., Jones 
 V. Kearney, 1 Dm. & War. at p. 1 59. 
 
 On this it is observed in Dart, V. & P. 5th ed. 809 :— " In ap- 
 plying this rule the word estate must be strictly construed; for 
 evidently no such pquity could oxist where the coniract had beoa 
 for the purchase of a professedly contingent interest at a price 
 fixed with a view to the contingency." 
 
 451
 
 * 498 COVENANT FOR FURTHER ASSURANCE. 
 
 "The covenant for further assurance in a deed is a covenant in- 
 tended to give full efPect and operation to the estate and interest 
 conveyed by the deed. Where it is sought to extend the operation 
 of a general covenant of that kind to the execution of an instru- 
 ment which would bar a title in others which would continue but 
 for the execution of the instrument sought to be executed, I have 
 always understood that an express stipulation to that efPect is 
 
 necessary For that reason, it has, so fai: a I know, never 
 
 been considered that a covenant for further assurance implied, 
 without regard to the other covenants in the deed, a covenant to 
 levy a tine, or to suffer a recovery, or to surrender a copyhold. 
 The utmost extent to which the Court has gone with 
 [ * 497 ] reference * to covenants for further assurance has 
 been to extend their operation to that very estate and 
 interest which are conveyed by the deed. Tenant in tail. — If a 
 tenant in tail conveys in fee simple upon a recital that he is en- 
 titled to the fee, and the instrument contains no covenant to sufifer 
 a recovery, or to levy a fine, the Court, finding an express con- 
 tract which relates to an estate in fee, which is purported to be 
 conveyed by the instruments, extends the operation of the cove- 
 nant for further assurance so as to apply to the subject-matter of 
 the grant, which it is in the power of the grantor to complete by 
 an instrument, although that instrument may bar and conclude 
 
 the title of other persons I can find no contract in this 
 
 deed for enlarging the estate of the grantor to any extent; and I 
 conceive that, unless there be words in the instrument which can 
 show it was intended that the covenant for further assurance 
 should extend to enlarging the estate conveyed, and to barring 
 an interest in other persons than the grantor, the Court is not 
 justified in resorting to the extraordinary jurisdiction for specific 
 performance to compel the grantor to execute an assurance of a 
 kind that was not, and could not, from the form of the instrument, 
 be thought to be in his contemplation at the time when the grant 
 by him was made; " per Stuart, V.-C, Davis v ToUeviache, 2 Jnr. 
 N. S., 1181; S. C, 28 L. T. (O. S.) 188. 
 
 " Under this covenant the heir might call for further assur- 
 ances, even to levy a fine; he certainly might have called for the 
 removal of a judgment or other incumbrances;" per Heath, J., 
 King V. Jones, 5 Taunt. 427; S. C, 1 Marsh. 107; S. C. affd., 
 Jones V. King, 4 M. & S. 188. On this Mr. Kawle (Cov. for 
 Title, ch. vii., p. 198) observes: "It is conceived that this pro- 
 position must be taken with some qualification, depending either, 
 first, on the scope of the other covenants in the deed, or secondly, 
 on the nature of the estate conveyed. For . . . .all the other 
 covenants for title are either general, i.e.. pxt(^i.ding to all para- 
 mount titles and incumbrances, or limited, extending only to de- 
 fects of title or incumbrances created by the vendor. 
 r*498] But the covenant for * further assurance has in gen- 
 452
 
 COVENANT FOR FURTHER ASSURANCE. * 499 
 
 eral the same form of expression, whether the other cove- 
 nants which accompany it are general or limited; it is an under- 
 taking that the vendor will execute such further assurance as 
 may be deemed necessary by the purchaser. If the other cove- 
 nants in tne deed are general, if their breach will be caused by 
 reason of an incumbrance not created by the vendor, then it is 
 conceived that the proposition is correct, and that the purchaser 
 may, instead of suing at law upon his other covenants invoke the 
 aid of equity to remove the incumbrance. But if the other cove- 
 nants are limited and the purchaser would therefore be without 
 remedy at law upon them by reason of the incumbrance not hav- 
 ing been created by the vendor, it is obvious that the vendor 
 cannot be compelled to remove an incumbrance which he had not 
 covenanted against." 
 
 Nature of estate conveyed.- — " So, too, the purchaser's right 
 may depend on the nature of the estate conveyed. There is a 
 class of cases (see Clanrickard v. Sidney, Hob. 273; Delmer v. 
 M'Cabe, 14 Ir. C. L. R. 377) which decide that although the 
 covenants for title may be general, yet, when the conveyance is 
 but of a limited estate or interest, the covenants will themselves 
 be restrained and limited to the estate conveyed. Under such 
 circumstances it would be inequitable that the purchaser should, 
 by virtue of a covenant for further assurance, require the convey- 
 ance to himself of any greater estate." 
 
 " It is obvious, therefore, that no more is meant than that 
 where the covenants for title are not limited or restrained either 
 by [sic: qucere 'to'] the acts of the vendor or [by] the particular 
 estate conveyed, the purchaser has a right, under the covenant 
 fur further assurance, to require the conveyance of a paramount 
 title or the removal of an incumbrance; but where the other cove- 
 nants are limited to the acts of the vendor, or restrained by any 
 particular estate, the purchaser will have no right under this 
 covenant to require the conveyance of any other estate, or the 
 removal of an incumbrance not created by the vendor." 
 
 * Estoppel. — The cases which depend upon the cove- [ *499 ] 
 nant for further assurance must be distinguished from 
 those which depend upon the rule (see post, p. 527), that if a 
 man having a defective title purports to convey property for 
 value, and afterwards acquires a good title, equity renders that 
 good title available for supporting the conveyance. 
 
 In Smith v. Baker, 1 Y. & Coll. C. C. 223, A., supposing him- 
 self to be entitled to the fee simple, subject to his mother's life 
 estate, conveyed it to trustees for the benefit of his creditors, 
 with covenants for title and further assurance. In fact the mother 
 was the owner in fee simple; and when, on h<'r death it had de- 
 scended to A,, it was held that ho must assure the estate so.ac- 
 
 453
 
 * 499 COVENANT FOR FURTHER ASSURANCE. 
 
 quired by him. See also Dart, V. & P., 5th ed. 809; Noel v. 
 Bewley, 3 Sim. 103; which was doubted ia Smith v. Osborne, Q H. 
 L. C. at p. 392. 
 
 See also Spencer v. Boyes, 4 Ves. 370, where copyholds were 
 mortgaged to the plaintiff's testator as freeholds, and the bill was 
 filed against the customary heir of the mortgagor praying a sur- 
 render to the use of the plaintiff. 
 
 Original conveyance void. — Specific performance will be refused 
 where the original conveyance itself is void: as if a man covenants 
 to stand seised to the use of a mere stranger and to make further 
 assurance; Fursaker v. Robinson, Prec. Ch. 475; Gilb. Eq. R. 
 139; Abr. Eq. 123; Piatt, Gov. 353. 
 
 454
 
 C0VEJfA2ITS TO SETTLE PROPERTY. * 501 
 
 * CHAPTER XXXI. [ * 500 ] 
 
 COVENANTS TO SETTLE PROPERTY. 
 
 Agreement that icife-s other or after -acquired property " shall be 
 settled " binds both husband and iviff : Agreement that one 
 jjarty shall settle property does not bind the other : Effect of 
 recitals : Covenant to settle ivife's property by husband only — 
 by both husband and ivife : Exception of property settled to 
 wife's separate use or " otherimse settled: " No expression of 
 7cish of person giving property to wife can exempt it from 
 operation of covenant: Property over which the wife has 
 power of apjpointment : " Shall become entitled'^ means dur- 
 ing the coverture: "Is noiv entitled " or "at the time of the 
 marriage shall be entitled: " Words descriptive of future ac- 
 quisition only : where ivife becomes entitled to prop>erty to 
 which she had no title at the time of the marriage : property 
 to ivhich wife was entitled (1) in possession, (2) in remai^i- 
 der at the time of the settlement or marriage : reversionary 
 interests falling into possession after determination of covert- 
 ure: vested reversionary title accruing during coverture: 
 contingent interest to ivhich wife is entitled at date of settle- 
 ment or marriage: Contingent interests acquired during 
 coverture: Malins'Act: Married Women's Property Act, 18S2: 
 Life interests: Property of named minimum value: Cove- 
 nant to settle particular interest by a person who acquires a 
 different interest: Infant ivife: Election: Covenants to 
 settle husband's property : Covenants to leave by icill: Mis- 
 cellaneous. 
 
 * In doterraining tbe effect of a covenant for the set- [* HOI ] 
 tlement of a wife's property "* not specitically settled, 
 
 "* As before remarked, marriuKf' setllPTiienls are vt-rv iincomnion in lliis 
 country, and there are lew American cases to be found on the subject. Tbe 
 Talidity of such settlements is however generally recoj^nized, and it is well 
 
 455
 
 * 502 AGREEMENT THAT PROPERTY SHALL BE SETTLED. 
 
 the followiDg questions arise for consideration, viz., (1) Are both 
 the husband and wife bound, or which of them is bound, to per- 
 form the covenant? (2) What property is bound by the covenant? 
 
 Effect of agreement and declaration by jmrties. — We have seen 
 (Rule 155, ante, p. 426) that "the rule is that where you have 
 such words as 'it is hereby agreed and declared between and by 
 the parties to these presents,' that some one will do an act, or 
 make a payment, and that some one is a party tp the deed, it is 
 a covenant by him with the others, not a covenant by all of 
 
 them If we find that no act is to be done except by one 
 
 of the parties, these words amount only to a covenant by that one 
 party with the others;'' per Jessel, M.R., Daices v. Tredtcell, 18 
 Ch. *D., at p. 359. And see per Kindersley, V. C, Ramsden v. 
 Smith, 2 Drew. 307, 308, cited ante, p. 426. 
 
 Now the agreement between the parties to a settlement as to 
 the wife's after- acquired property, may be either (1) that such 
 property "shall be settled," or (2) that the husband, or wife, or 
 both of them shall settle it. 
 
 Observation. — In settlements made after 1882, the covenant 
 to settle is generally entered into by the wife alone; see the forms 
 in 2 K. & E. Comp. 2nd ed., p. 477, and in Wolstenholme & 
 Turner's Conveyancing Acts, 3rd ed., p. 229, where see the note. 
 
 Hence the following Rules: — 
 
 Rule 174. — Agreement that wife' s property shall be settled. — 
 An agreement and declaration that the wife's other or after-ac- 
 quired property ^^ shall be settled,''^ is binding on both husband 
 and wife. 
 
 Rule 175. — Agreement that the husband alone shall settle it (a). 
 — An agreement and declaration that the husband shall 
 [ * 502 ] settle, or concur with the wife in * settling, her other or 
 after- acquired property, does not bind the wife. 
 
 (a) In settlements after 1882, the agreement might be that the wife alone 
 should settle; in this case, the Rule and Observation would apply mutatis 
 mutandis. 
 
 understood that almost any bond fide and reasonable agreement made before 
 marriage to secure the wife either in the enjoyment of her own property, or a 
 pol-tion of that of her hnsband. will he carried into execution. Stilley v. 
 Folger, 14 O. 610: English v. Foxall, 2 Pet. (U. S.) 595; Hunter v. Bryant, 
 2 Wheat. (U. S.) 32; Tartrell v. Tartrell, 10 Allen (Mass.), 278; Skillman 
 v. Skillman, 2 Eeas. (N. J.) 403; Cartledge r. Cutliff, 29 Ga. 758; Albert v. 
 Winn, 5 Md. 66; Snyder f. Webb. 3 Cal. S3; Smith v. Chappell. 31 Conn. 
 589. Because of the "rarity of such settlements in the United States there is 
 a dearth of authority, but "the rules governing their interpretation are similar 
 to those laid down in the English cases. 
 
 456
 
 AGREEMENT THAT HUSBAND SHALL SETTLE. * 503 
 
 Observation. — The operation of either of these rules is not 
 affected by the addition of a covenant by the husband only. 
 
 Agreement between all parties. — " In all the cases of chiuses in 
 marriage settlements as to the settlement of future projierty, tnree 
 distinct questions arise: And ... all the cases turn upon one 
 or more of these different questions, namely — ^Vhose covenant is 
 it? Who is bound? Who has entered into the covenants? The 
 second is, having ascertained who has entered into the covenant- 
 By whom is the act to be done? And the third — What is the 
 property which is included in the covenant, and is to be affected 
 by the act to be done? . . . Now I apprehend that, whenever 
 the covenant or agreement is simply and in terms the covenant 
 and agreement of the husband, the husband only is bound ; and 
 some of the cases decided turn upon that distinction. But where 
 the covenant in terms is not a mere exclusive covenant of the hus- 
 band, but is an agreement between all the parties, which agreement, 
 being under seal, is in point of fact a covenant by all the parties, 
 then it is not merely limited to a covenant by the husband, but 
 all parties who have entered into that agreement are bound to 
 perform it." . . . " In this case . . . there is a special covenant 
 on the- part of the husband, but, as it appears to me, not super- 
 seding the effect of that which is the general covenant comprised 
 in the general agreement among all the parties. But although 
 that is a general agreement, and in that sense a covenant . . . 
 it does not mean that every party to the deed has bound himself 
 and made himself responsible for the act to be done, because, as 
 may be very justly observed, . . . trustees are under no 
 responsibility that they will *do the act to be done; or [ * 503] 
 that, if it is not done, they will make good what ought 
 to have been done. But the meaning of it is that these woi^s 
 express what [it] is the intention and agreement of all parties 
 shall be done by somebody, but not at all meaning to express by 
 whom the act is to be done which the parties have agreed and in- 
 tended shall be done;" per Kindersley, V. C, Tou-nshend\. Har- 
 rou-hy, 27 L. J. N. S. Ch. 553; 8. C, 4 Jur. N. S. 353; W. R. 
 
 413. ^ , . 
 
 In Campbell v. Bainbridge, L. R. Eq. 2(30, the words being 
 "It is hereby declared and agreed, and the said (husband) doth 
 covenant that" the property should be settled, Stuart, V.-C, 
 f,aid : — " It seems to me very clear that where the covenant is by 
 the husband alone, the words previously inserted, that ' it is 
 hereby declared and agreed,' amount only to a declaration and 
 agreement that all parties are agreed that the husband shall 
 covenant. But where it is declared and agreed -that is, by all the 
 parties, including the wife— that pro[)erty which may come to her 
 for her separate use, free from the control of her husband, shall be 
 settled, the case is clear. ... 1 cannot read the words of 
 
 457
 
 * 504 AGREEMENT THAT PROPEKTY SHOULD BE SETTLED. 
 
 this clause without seeing that her separate property and her 
 separate agreement are a substantial and integral part of this 
 clause, and that it is an agreement by all the parties, includ- 
 ing the wife, that the wife should do something." And the 
 V.-C. then distinguished Ramsden v. Smith, 2 Drew. 298, where 
 it was agreed and declared, and the said (husband) did thereby 
 covenant that he the said (husband) would settle the property; 
 and he remarked that, in that case, Kindersley, V.-C, "rested 
 his judgment upon this, that the person who alone, according to 
 the terms of the clause was to do anything, was the husband." 
 See also Smith v. Uicas, 18 Ch. D. 531, at pp. 541, 542. 
 
 Examples.— ( 1 ) Agreement and declaration, and cove- 
 nant by the husband only, that the property "shall be 
 settled." — In Butcher v. Butcher, 14 Beav. 222, stated 
 [ * 504 ] post, p. 522, the wife, after the husband's * death, was 
 held bound to settle a reversionary chose in action to 
 which she became entitled during the coverture, but which did 
 not fall into possession until after the husband's death. This case 
 was followed in Re D'Estampes, D'Estampes v. Hankey, 32 W. R. 
 978 where the prior cases are reviewed, and Reid v. Kenrick, 3 
 W. R. 530 (S. C, 1 Jur. N. S. 897; 24 L. J. N. S. Ch. 503) is dis- 
 tinguished; see the latter case stated, posf, on this page. 
 
 So, under a similar form of words, the wife was held bound to 
 settle her separate pi'operty; Willoughby v. Middleton, 2 J. & H. 
 344; S. C, 6 L. T. N. S. 814 (more fully stated jjer Lord Selborne, 
 C. in Codrington v. Lindsay, L. R. 8 Ch. p. 590); Campbell \. 
 Bainbridge, L. R. 6 Eq. 269. See also Toicnshend v. Harrotcby, 4 
 Jur. N. S. 353; S. C, 27 L. J. N. S. Ch. 556; 6 W. R. 416. 
 
 In Stevens v. Van Voorst, 17 Beav. 305, it was agreed and de- 
 clared between and by the parties, and the husband covenanted, 
 that they the said husband and ivife and each of them, would 
 settle the wife's after-acquired property. Held, that this was a 
 covenant by the wife as well as the husbaod [and therefore prop- 
 erty acquired by her after the husband's death must be settled by 
 her] [b). 
 
 Examples (2).— Agreement and declaration, and cove- 
 nant by the husband only, that *' he will settle, or concur 
 with the wife in settling," the property.— The wife was held 
 not bound to settle property given to her separate use, in Rams- 
 den V. Smith, 2 Drew. 298;' Daices v. Tredivell, 18 Ch. D. 354. 
 
 In Reid V. Kenrick, 1 Jur. N. S. 897 (S. C, 24 L. J. N. S. Ch. 
 503; 3 W. R. 530; S. C, 25 L. T. (O. S.) 193), the words were 
 " It is hereby agreed and declared by and between the said par- 
 
 (6) The part of the decision in brackets is not law; see jiost, Rule 178, 
 p. 510. 
 
 458
 
 COVENANTS AND NO AGREEMENT. * 506 
 
 ties hereto, and the said R. (husband), doth hereby covenant, 
 that "the after-acquired property ' shall be atid remain, 
 and he the said B. * icill permit and suffer tlie same to be [ * 505 ] 
 and remain^ upon the trusts of the settlement, and that 
 he the said R. will pay, transfer, and deliver over, and join with 
 the said (wife) in assigning, conveying, and assuring" such 
 property. Stuart, V.-C, distinguished Stevens^ v. Vaii Voorst 
 (stated ante, p. 504), and held that it was impossible to say that, 
 upon the construction of the instrument, there was any covenant 
 on the part of the wife, and accordingly that a reversionary chose 
 in action which fell into possession after the husband's death, was 
 not bound. (Sed qua-re. The terms of the settlement are pecu- 
 liar, and seem to amoiant to an agreement by all parties, lirst, 
 that the property should be settled, and secondly, that the htts- 
 band should settle it; so that it would appear to be a case of con- 
 flict between Rule 174 and Rule 175; and to amount to an author- 
 ity that, where there is such a conflict, the latter Rule must 
 prevail; a conclusion which is supported by Rule 27, ante, p. 113.) 
 See also Lee v. Lee, 4 Ch. D. 175, stated post, pj 520. 
 
 Effect of Recitals. 
 
 In cases falling under Rule 174, a recital in general terms of 
 an agreement " that the husband shall settle," the wife's future 
 property, will not restrict the generality of the agreement in the 
 operative part of the deed; Willoughby v. Middleton, 2 J. & H. 
 344; and in cases falling under Rule 175, a recital in general 
 terms of an agreement that the wife's future property " shall be 
 settled," will not enlarge a covenant by the husband in the opera- 
 tive part that "he will settle" it; Hammond \. Hammond, I'd 
 Beav. 29; Young v. Smith, L. R. 1 Eq. 180; S. C, 35 Beav. 87; 
 Dawes v. Tredwell, 18 Ch. D. 354; provided that in each case the 
 operative words are unambiguous. See ante. Rule 3(). p. 129; 
 Rule 37, p. 132; but consider Caldwell v. Fellowes, L. R. 9 Eq. 
 410. 
 
 * Covenants by husband only, or by both husband and [ *50()] 
 ivife, without any general declaration and agree- 
 ment between the parties. 
 
 Sometimes there are no words of general agreement between 
 the parties, the form being simply "The said (husband) hereby 
 covenants," or "The said (husband) and (wife) hereby cove- 
 nant," &c. 
 
 " It is quite settled that a covenant by the husband alone to 
 settle the after acquired property of the wife does not bind her 
 separate property, but that if the covenant be by both, then it 
 does bind it. Again this covenant can only settle property over 
 
 459
 
 * 507 COVENANTS AND NO AGREEMtNT. 
 
 which the wife has a power of disposition, for if it is settled by 
 an instrument which prohibits anticipation, the covenant to settle 
 would be inoperative;" per Eomilly, M. R., Coventry v. Coventry, 
 32 Beav. 614 
 
 Examples.— (1) Covenant by husband only. — The wife is 
 not bound to settle the following: — 
 
 (1) Sej)arate estate. — Property to which she l?ecomes entitled 
 for her separate use ; Douglass v. Congreve, 1 Keen, 410; S. C, 6 L. 
 J. N. S. Ch. 51; Thornton v. Bright, 6 L. J. N. S. Ch. 121; Trau- 
 ers v. Travers, 2 Beav. 179; Drury v. Scott, 4 Y. & C. Ex. 264; 
 Grey v. Stuart, 2 Giff. 398; S. C, 30 L. J. Ch. 884; Hammond 
 V. Hammond, 19 Beav. 29; Gataker v. Reynardson, 13 W. R. 487; 
 S. C, 12 L. T. N. S. 134. 
 
 (2) Reversionary property. — Reversionary interests which do 
 not fall into possession during the coverture, so that the husband 
 cannot reduce them into possession; Young v. Smith, 35 Beav. 87. 
 
 (3) Equitable choses in action. — Equitable choses in action to 
 which the wife becomes entitled in possession during the cover- 
 ture, but which are not reduced into possession by the husband 
 during the coverture; Re Webb^s Trusts, 46 L. J. Ch. 769. 
 
 A husband covenanted to settle, when required, one moiety 
 of the wife's reversionary interests under a will; after the death 
 
 of the tenant for life, he reduced one moiety into posses- 
 [ * 507 ] sion, and gave a release for it, but * never settled it; the 
 
 other moiety remained with his consent standing in the 
 names of the executors until he died, in the lifetime of the wife, 
 having by his will given all his property to her. Held, that the 
 wife was not bound to settle the moiety which had not been as- 
 signed by the executors; Cramer v. Moore, 3 Sm. & G. 141. 
 Stuart, V.-C, said: — "There is nothing strong enough to defeat 
 her title. There was no assignment upoQ any trust, no cove- 
 nant bv her, and the articles are merely executory, and are 
 not binding upon her." S. C, 3 W. R. 347; 25 L. T. (O. S.) 31. 
 It should be remarked that in this ease the contest was between 
 the wife and her next of kin, who would have become entitled 
 under the ultimate trust in the settlement in default of appoint- 
 ment by the wife. 
 
 Examples.— (2)— Covenants by both husband and wife.— 
 
 Separate estate. Restraint on anticipation. — The wife is bound 
 to settle property to which she becomes entitled for her separate 
 use; Taicney v. Ward, 1 Beav. 568; Re Allnutt, Pott v. Brassey, 
 22 Ch. D. 275; unless it be settled without power of anticipation; 
 Smith v. Lucas, 18 Ch. D. 531 ; and see a dictum of Romilly, M. 
 R., in Coventry v. Coveyitry, 32 Beav. 614, cited ante, p. 506; or 
 unless the husband's interest only in the wife's property is 
 covenanted to be settled; Brooks v. Keith, 2 Dr. & Sm. 462. 
 460
 
 LEGACY, ETC., IS. NOT TO BE BOUND BY COVENANT. * 508 
 
 Life interest — In Townshend v. Harrowbif, 4 Jur. N. S. 353: 
 S. C, 27 L. J. Ch. 5r)3; G \V. R. 413; 31 L. T. 33, it was held 
 that life interests whether for the wife's separate use or not, are 
 not intended to be included so as to fall into the trust property 
 as caj^ital. 
 
 Life interest forfeitable on alienation. — In Brooks v. Keith, 2 
 Dr. & Soi. 402, where the wife became entitled to a life interest 
 in leaseholds, with a proviso of forfeiture on alienation, Kiuder- 
 sley, V.-C, was inclined to think that an assignment on the trusts 
 of the settlement would not be a forfeiture, but he declined to 
 order the wife to run the risk; see this discussed per Chitty, J., 
 Re Allmitt, Pott v. Brassey, 22 Ch. D. at p. 280. 
 
 " Atisolute use:' — In Milford v. Heile, 17 Beav. 002, 
 where the covenant * was to settle " all property which [ * 508 ] 
 should come to her absolutely, and not bound by any 
 trust or provision otherwise than for her absolute use," it was 
 held that property bequeathed to the wife for her separate use 
 was bound; S. C.,'2 W. R. 181. 
 
 Excejjtion of property settled to separate use. —Where there was 
 an exception of property " already settled to her separate use," it 
 was held that property subsequently bequeathed to the wife for 
 her se*parate use fell within the exception; Coventry v. Coventry, 
 32 Beav. 612; Whitgreave v. Whitgreave, 33 Beav. 532; but such 
 an exception, contained in a settlement before 1883, does not ap- 
 ply to property to which she becomes entitled after 1882, and 
 which is not affected by an express trust for her separate use; Re 
 Stonor's Trusts, 24 Ch. D. 195. See 45 & 46 Vict. c. 75, s. 19. 
 
 Exception of property otheru-ise settled.— li the covenant ex- 
 presslv excepts property which shall be "otherwise settled," pro- 
 perty "given to the wife for her separate use falls within the ex- 
 ception; Kane v. Kane, 16 Ch. D. 207. 
 
 Rule IIQ. -Property givemvith direction that it is not to be 
 hound by corewawl— Where a covenant has been entered into for 
 the settlement of the after-acquired property of a married woman, 
 and a gift is afterwards made to her of such a nature as to come 
 within the words of the covenant, no expression of the intention 
 of the donor that it is not to be settled will exclude it from the 
 operation of the covenant. 
 
 In Re Mainwaring's Settlement, L. R. 2 Eq. at p. 495, Wood, 
 V.-C, seems to have considered that the intention of the donor 
 could' f^Dvern the construction of the covenant; but this opinion is 
 erroneous (as offending against Rule 8, ante, p. 30), and his 
 iudcrment was not founded on it. And it has been disapproved 
 of by Chitty, J., in Pe Albiutt, Pott v. Bra.^.^cy, 22 Cli. D. 2/o; 
 and by Cotton, Bowen, and Fry, L..)J., in Srhutfrhl v. Sponnn; 20 
 
 401
 
 * 510 PROPERTY OVER WHICH WIFE HAS POWER. 
 
 Ch. D. 94, where Bowen, L.J., says, at p. 101 : — "Whether 
 [ * 509 ] property falls within a' covenant to settle * after-acquired 
 
 propert)'^ or not, must turn, as it seems to me, upon the 
 construction of the covenant. There has been laid down a canon 
 with reference to the construction of such covenants, that when 
 you find the property does not fit the trusts of the settlement, 
 then you may assume as a consequence that it was not intended 
 to come within the covenant at all. That seems to be good sense. 
 But that rule itself is only, to my mind, a rule of construction; 
 and the question must be whether, on the true construction of 
 the covenant, the particular property falls within it or not. If 
 that is the right view, it cannot be material to consider the inten- 
 tion with which after- acquired property has been given. A gift 
 is not the less a gift because the donor intends that it shall not 
 follow the bargain which the party to whom it was given has 
 made as to its devolution. You may look at the way in which it 
 is given to see if it is a gift coming within the terms of the cove- 
 nant to settle, but no declarations of intention as to what are to 
 be the consequences can have any effect." 
 
 In the same case. Fry, L. J., at p. 102, says: — "The question 
 is one of considerable moment, viz., whether the intention of the 
 donor can operate to take a gift out of the operation of the cove- 
 nant, when, but for such expression of intention, the gift would 
 have fallen within its operation. , . . Now, on principle, it ap- 
 pears to me to be impossible that that question can be-answered 
 in the affirmative. It seems to me that we must inquire, first, 
 what is the construction of the covenant to settle; next, what is 
 the gift; and that, if the gift comes within the scope of the cove- 
 nant, then no expression of intention on the part of tbe donor can 
 take it out of the operation of the covenant. In construing the 
 gift we must consider what is the subject-matter of the gift, and 
 what are the limitations subject to which it is made; and if it is 
 found that those limitations are inconsistent with the limitations 
 of the covenant to settle, then the Court may well conclude that 
 
 the subject-matter of the gift does not come within the 
 [ * 510 ] scope of the covenant. The * intention of the donor of 
 
 the gift cannot, in my judgment, be regarded, except so 
 far as it bears on the nature of the gift he bas made." 
 
 Rule 177. — Property over ivhich ivife has jMiver of appoint- 
 ment. — Property over which the wife has merely a power of ap- 
 pointment is not bound by the covenant, unless expressly in- 
 cluded therein; Ewart y. Ewart. 11 Ha. 276; Townshefid v. Har- 
 rowby, 4 Jur. N. S. 353; S. C, 27 L. J. Ch. 553; 6 W. R 413 
 Bo7ver v. Smith, L. R. 11 Eq. 279 (c); S. C, 19 W. R 399; 40 
 
 (c) See the remarks on this report in Steward v. Poppleton, W. N., 1877, 
 No. 29. 
 
 462
 
 "shall become entitled" — "IS NOW entitled/' * 511 
 
 L. J. Cb. 194. But if the wife appoint to herself an interest that 
 falls within the covenant, such interest will be bound; Ewart v. 
 Etvart, 11 Ha. 276. 
 
 Rule 178. — " Shall become entitled " means during coverture. — 
 In the absence of special words, a covenant to settle property " to 
 which the intended wife shall become entitled " will be construed 
 to mean "shall become entitled during the coverture;'' Be Ed- 
 ivards, L. R. 9 Ch. 97, approving Carter v. Carter, L. E. 8 Eq. 
 551, and Dickinson v. Dilhcyn, L. E. 8 Eq. 546; and overruling 
 on this point Stevens v. Van Vooi^st, 17 Beav. 305. 
 
 "The primary object of a covenant to settle the future property 
 of a wife is to prevent its falling under the sole control of the 
 husband, and it therefore, primd facie, is to be supposed not to 
 be intended to apply to property the wife's title to which does 
 not accrue until after the husband's death;" per James, L. J.. He 
 Edwards, L. E. 9 Ch. at p. 100. 
 
 In Re CamphelVs Policief<, 6 Ch. D. 686, where the rule was 
 applied to a case in which the covenant related only to 
 property coming from a specified source, Hall, *V.-C., ex- [ * 511 ] 
 plains the reasons for the rule: — " The arguments which 
 have been addressed to me, in favour of construing a clause like this 
 to include property coming to the lady after the determination 
 of the coverture, are not sufficient to induce the Court to extend 
 its operation. On the contrary, I think that such a construction 
 would in all probability not carry out the intention of the parties. 
 It might have the effect of rendering impossible any settlement 
 upon the children of a second marriage, and of leaving them 
 totally unprovided for. A settlement upon a first marriage hav- 
 ing such operation would be in the highest degree improvident; 
 for the lady might soon become a widow, and thus, if the cove- 
 nant were held to extend over the whole period of her life, all 
 her fortune might go to the single child of a first marriage, to the 
 entire exclusion of numerous children of a subsequent marriage. 
 
 In Prebble v. Boghurst, 1 Swanst. 809, where the condition of 
 a bond on marriage was "If the said (husband) should at any 
 time during his natural life be seised," &c., the words were given 
 their natural meaning, and land of which he became seised after 
 the death of his wife was held to be Ixjund. 
 
 " 7s now entitled " — " at the time of the marriage sitall be 
 entitled." 
 
 Rule 179.— "/« 710W entitled'''' or " at date of marriage s/iall 
 be entitled." — Where the covenant includes property to which the 
 
 403
 
 * 513 WORDS DESCRIPTIVE OF FUTURE ACQUISIIION. 
 
 wife " is now entitled," or " at the time of the marriage shall be 
 entitled," all reversionary interests, whether vested or contingent, 
 to which she is entitled at the date of the settlement or marriage, 
 as the case may be, are bound. 
 
 Vested reversion. — The rule applies to a vested reversion; Cald- 
 well V. Fellowes, L. R. 9 Eq. 410; Re Mackenzie's Settlement, L. 
 R. 2 Ch. 34-5. 
 
 Defeasible estate. — The rule was not followed in Bering v. 
 Kynuston, L. R. 6 Eq. 2 JO, where the wife was entitled 
 [ * 512 J to a remote * vested reiaainder in tail, which was de- 
 feasible, and which did not fall into possession till after 
 the coverture had determined. See on this case per Malins, V.-C, 
 in Agar v. George, 2 Ch. D. 709, and per Jessel, M. R., in Re 
 Jackson's Will, 13 Ch. D., at p. 196. 
 
 Contingent interest. — It applies to a contingent intei-est, even if 
 it do not fall into possession till after the termination of the cov- 
 erture; Agar v. George, 2 Ch. D. 706; Cornmell v. Keith, 3 Ch. 
 D. 767; and consider the judgment of Turner, L. J., in Re Mac- 
 kenzie's Settlement, L. R. 2 Ch.,afc p. 348. where he says: — "The 
 terms of the covenant are ' if she is,' or ' if she becomes, entitled 
 to property of the value of £400 for any estate or interest what- 
 soever.' Could it be said that if she was entitled contingently, 
 or under an executory devise or bequest, to property of a larger 
 value, the coven ant would not reach it?" 
 
 Defeasible interest. — The rule applies to a reversionary interest 
 liable to be divested by the exercise of a power of appointment; 
 Re Jackson's Will, 13 Ch. D. 189; Sn-eetapx)le v. Horlock, 11 Ch. 
 D. 745. But, on the other hand, where the wife was, at the time 
 of the settlement, entitled to a vested reversionary interest liable 
 to be divested by the exercise of a power of appointment, and the 
 covenant contained words descriptive of both present and future 
 property, and the property was appointed absolutely to her after 
 the termination of the coverture, it was held not to be within the 
 covenant, though the vested reversionary interest was within it; 
 Siceetapple v. Horlock, 11 Ch. D. 745, overruling i?eJ^ro?rcrs Set- 
 tlement, 4 N. R. 54; S. C, 10 L. T. N. S. 367. See Rule 183, 
 post, p. 519; and Rule 188, j^ost, p. 527. See also Re D' Estampes, 
 D'Estampes v. Hankey, 32 W. R. 978. 
 
 Words descriptive of future acquisition only. 
 
 Where the words of the covenant describe only property to be 
 acquired in future, e. g., " property to which the wife shall be- 
 come entitled," they clearly do not bind property to 
 [ * 513 ] which the wife is already entitled in possession; * post. 
 Rule 181, and they clearly do bind property which 
 464
 
 WORDS DESCRIPTIVE OF FITIRE ACQUISITION. * 514 
 
 she acquires in immediate posBession after the marriage, and to 
 which she had no title of any kind at the date of the marriage; 
 see per Wickens, Y.-C, in Re Clinton's Trust, L. R. 13 Eq. 295, 
 cited infra. 
 
 But greater difficulty arises in applying words of future acquisi- 
 tion to property in which the wife has already, at the time of the 
 marriace, a reversionary interest which vests in possession, or a 
 contingent interest which vests in interest only, during the cov- 
 erture. 
 
 The governing principle of the cases seems to be that, in order 
 to satisfy words of future acquisition, there must be, after the 
 marriage and during the coverture, some change of title, or fresh 
 acquisition of interest in the property in question. 
 
 There must be some change in title duri)ig coverture. — ^^ Becovie 
 entitled to."" — In Re Clinton's Trust, L. R. 18 Eq. 295, the words 
 beino- " If at any time or times after the solemnization of the 
 said intended marriage, and during the joint lives of the said (hus- 
 band) and (wife) they or either of them in her right shall . . 
 . . become entitled.'' Wickens, V.-C, (at p. 304), observed: — 
 " The law on this subject is in a very embarrassing state, and the 
 decisions are in fact irreconcilable. ... It must be taken as 
 clear on principle and authority, that such a covenant, where the 
 words are future, does not affect present property. The judg- 
 ment of James, V.-C, in Re Peddefs Settlement Trusts,!,. 11. 10 
 Eq. 585, represents, I conceive, quite accurately the law as de- 
 duced from the cases cited before him. There can be no doubt 
 that a covenant like the present applies exclusively to interests 
 which the parties may acquire a title to after marriage, distinct 
 from those vested in them at the time of marriage, and that there 
 must be some change or other in the title to the property after 
 marriage in order to bring it within the covenant. This change 
 is described in the covenant by the words ' become entitled to.' 
 The expression 'become entitled to,' in these and most covenants 
 of the sort, applies, I conceive, only to an acquisition of interest 
 by the wife; and this may mean (1) an acquisition of 
 property in * which the wife had no interest at the time [ * 514 ] 
 of the marriage, and which vests in her absolutely dur- 
 ing the coverture ; or (2) an acquisition of property which she 
 was entitled to in remainder at the time of marriage, and which 
 vests in possession during the coverture; or (3) an ac(piisiti(jn of 
 property in which she had no interest at the time of the marriage, 
 which vests in her by way of future title during the coverture, 
 but does not vest in possession till it is determined. Tliere can 
 be no doubt that the first of these three classes is within the 
 covenant: the diiliculty arises with regard to the other two classes. 
 Both of them cannot he included within the covenant, and tlie 
 question is, which of them is, prima facie, to be considered as so 
 included." 
 
 30 INTICUI'KKTATION- OK DKKHS. 465
 
 * 515 WORDS DESCKIPTIVE OF FUTURE ACQUISITION. 
 
 The titles, therefore, which may be acquired after the date of 
 the marriage and during the coverture are: — (1) Acquisition in 
 possession of property in which the wife had no interest at the 
 date of the marriage; (2) Acquisition in possession of property 
 to which she had a title in reversion at that date; (3) Acquisi- 
 tion of a reversionary title (vested or contingent) to property in 
 which she had no interest at that date, and which does or does 
 not fall into possession during the coverture. 
 
 As to class (3) there may be a further question, viz., whether 
 there is a change of title sufficient to bring the property within 
 the covenant where a contingent reversion becomes vested during 
 the coverture. 
 
 Rule 180. — Words of future acquisition bind property ac- 
 quired in possession duriyig coverture to which the tcife had not 
 title at the marriage. — Property which the wife acquires in pos- 
 session during coverture, and to which she had no title of any 
 kind at the date of the marriage, is bound by the covenant where 
 the subject-matter of the covenant is described by words of fu- 
 ture acquisition only; Re Clinton's Trust, L. R. 13 Eq. 295; cited 
 supra, p. 513. 
 
 Rule 181.—Wo7^s of future acquisition do not bind property 
 of wife in possession at date of settlemeyit. — Property to which 
 the wife is entitled in possession at the date of the set- 
 [* 515] tlement is not * bound by the covenant where the sub- 
 ject-matter of the covenant is decribed by words of fu- 
 ture acquisition only; Re Clinton'' s Trust, L. R. 13 Eq. 295; cited 
 supra, p. 513. 
 
 The very recent case of Williams v. Mercier, 10 App. Cas. 1, 
 shows that James v. Durant and Re Viants Trusts (stated pos/, 
 pp. 516, 517), were correctly decided. It follows that the Rule 
 as here stated is only true in cases where the marriage is after 
 1882; or, if it was before 1883, the Rule does not apply to pro- 
 perty " which the husband shall acquire in right of the wife;" 
 and that, on the other hand, where these words occur in settle- 
 ments before 1883, they are satisfied by the interest that the hus- 
 band acquires by the marriage. 
 
 ^^ Become entitled.''^ — "The words ' become entitled ' mean 'be- 
 come entitled either in possession or reversion;' " per Shadwell, 
 V.-C, Blythe v. Granville, 13 Sim. at pp. 195-6. 
 
 "When you find the words 'shall become entitled,' you are al- 
 ways referring to some future interest, to the acquisition of some 
 466
 
 WORDS DESCRIPTIVE OF FUTURE ACQUISITION.' * 516 
 
 futui-e title; " per Kindersley, V.-C, Wilton v. Colrille, 3 Drew. 
 at p. 624. 
 
 Accordingly, where the covenant was by the hnsband and wife, 
 and the words were (p. 125) :■ — "all snch further or other por- 
 tion or personal estate (if any) as shall during the life of the 
 said (icife) become vested in or accrue to her, or as shall or may 
 be assignable by the said [hiisband) and (in'fe) or either of them 
 in law or equity, either for a vested or contingent interest; " 
 Hoare v. Hornby, 2 Y. & C. C. C. 121; "all and singular the per- 
 sonal estate to which the said {wife) shall at any time or times 
 become entitled; " Otter y. Melvill, 2 De Gex 6c Sm. 2o7; "if at 
 any time or times during the said intended coverture the said 
 {husband and wife) or either of them in her right, shall, by gift, 
 descent, succession, or otherwise, become entitled to any real or 
 personal estate;" Archer v. Kelly, 1 Dr. & Sm. 300; "all and 
 singular the moneys, stocks, goods, and chattels, and other per- 
 sonal estate which at any time or times during the said intended 
 marriage " the wife or the husband in her right, " shall become 
 possessed of, or entitled to, by transmission, gift, or otherwise, 
 and whether in possession or expectancy; " Re Browne's Will, L. 
 R. 7»Eq. 231 (at p. 232); "in case any personal property shall 
 at any time or times during the said intended coverture be given 
 or bequeathed to, or in any manner vest in "the icife or the hus- 
 band in her right; ib. at p. 233; it was held that property to 
 which the wife was at the date of the settlement enti- 
 tled in possession was not bound; and *that, although [*516] 
 in Otter v. Melvill the husband and the trustees of the 
 settlement were at the time of the marriage ignorant of the exist- 
 ence of the property, and that in Re Browne's Will the property 
 was a tontine debenture. 
 
 The same construction was placed on covenants by the husband 
 only where the words Avere " all and every the estate and effects, 
 of what nature and kind soever, whether real or personal, to which 
 the said {icife) at any time during the said intended coverture 
 shall become seised, possessed of, or entitled unto; " Wilton v. Cal- 
 vin, 3 Drew, 617; " if at any time or times during the said in- 
 tended coverture, any real or personal estate shall descend, or de- 
 volve to, or vest in," the icife or the husband in her right; 
 Churchill \. She])herd, 33 Beav. 107. 
 
 In James v. Durant, 2 Beav. 177 (S. C.,siib nom. James v. 
 James, 9 L. J. N. S. Ch. 85), the words were : " In case the icife 
 or any person or persons in trust for her or the husband in her 
 right should at any time or times thereafter during their jcnnt 
 lives, become possessed of, interested in, or entitled to, any sum 
 or sums of money or oth*er personal pro[)erty, estate, or ("fleets 
 whatsoever." It was hdd that personalty to which the wife was 
 entitled in possession at the date of the marriage was bound, on 
 
 467
 
 * 517 WORDS DESCRIPTIVE OF FUTURE ACQUISITION. 
 
 the ground (following the reasoning in Ch-afftey v. Humpage, 1 
 Beav. 46; on app. 3 Jur. 622) that by the marriage the husband 
 acquired, in his wife's right, title to the property in question. It 
 appears from the report of James v. (fames in the Law Journal 
 that the wife, for herself, &c., and the husband, for himself, &c., 
 covenanted that in case the wife '' or the husband in her right 
 should at any time or times thereafter during their joint lives be- 
 come," &c. Lord Langdale, M. R., said that tt^e words " at any 
 time or times hereafter " could only be construed to mean " at 
 any time or times after the execution of the settlement; " aodby 
 virtue of the marriage and in right of his wife the husband pc- 
 quired the title to the property in question. But it is conceived 
 that James v. Durant is not now law: see Archer v. Kelly, 
 [ * 517 ] 1 Dr. & Sm. 300; Churchill v. ShepjMrd, 33 Beav. * 107; 
 Re CUnton''s Trust, L. R. 13 Eq. 295, where Wickens, 
 V.-C. (at p. 307), said that James v. Durant, "could not be re 
 conciled with later cases of unimpeachable authority : " and also 
 that Grafftey v. Humpage was " a peculiar case and only to be 
 followed where the question is specifically the same."' 
 
 Some confusion, however, has been occasioned by Re Vianfs 
 Trusts, L. R. 18 Eq. 436, where Bacon, V.-C, decided that where 
 the covenant was to settle property " to which the wife or the 
 husband in her right should during the covei'ture become en- 
 titled " the words of futurity were satisfied by the interest that 
 the husband acquired by the marriage; and by Hamilton v. James, 
 Ir. R. 11 Eq. 223, following Re Viaitfs Trusts, which decided 
 that a sum of money lent to the husband by the wife before the 
 marriage was bound by a covenant to settle personalty to which 
 the wife or ^he husband in her right shoiild become entitled. 
 
 By a marriage settlement, it was agreed that A., the husband, 
 and all other necessary parties, should settle all property to 
 which " he now is, or shall, during the intended coverture be- 
 come eutitled." At the time of his marriage he was in receipt of 
 half pay as a naval officer: but afterwards, during the coverture, 
 he commuted it, and received the commutation money. Held, 
 that the commutation money was not bound by the covenant; for 
 the half-pay was not strictly "'property," nor was it (at law) 
 assignable property; and therefore it did not fall within the 
 words of the covenant; and the fact of commuting, i. e., selling 
 it, did not make it a new acquisition of title; Churchill y. Denny, 
 L. R. 20 Eq. 534. 
 
 On the second marriage of B., a widow, she executed with the 
 consent of J., her intended husband, a deed settling certain speci- 
 fied jiroperty. By an agreement dated the same day, reciting the 
 settlement, and that the parties had agreed that any property 
 which B. " may be entitled to." other thau that included in the 
 settlement, '■ should be settled " upon similar trusts, B. and J. 
 
 468
 
 WORDS DESCRIPTIVE OF FLTURK ACQUISITION. * 519 
 
 covenanted "each with the other'' that iu case B. 
 "shall be * entitled" to any property other than that [ * 51S ] 
 comprised in the settlement, "the same shall be set- 
 tled." Held, that the agreement applied only to property to 
 which B. might afterwards become entitled, and not to any pro- 
 perty to which she was entitled at the date of the agreement, but 
 which was not included in the settlement; He Blockleij, Blockley 
 V. Blockleij, 49 L. T. 805; S. C, 32 W. K. 385. 
 
 Rule 182. — Vested reversiO)i falling into possession during 
 coverture is bound. — Where a vested remainder or reversionary 
 interest, to which the wife is entitled at the date of the settle- 
 ment, falls into possession during the coverture, it is bound by a 
 covenant in which the property to be settled is described by 
 words applicable to future acquisition only. 
 
 The Rule was applied where the words were: — "all the pro- 
 perty of what nature or kind soever to which the ivife shall during 
 the covertm-e become entitled; " Blythe v. Granville, 13 Him. 190; 
 "iivcase, at any time or times hereafter during the coverture, 
 any real or personal property and effects, of what nature or kind 
 soever, shall descend, come to, or vest in, the ivife or the husband 
 in her right at law or in equity;" Ex imrte Blake, 16 Beav. 463; 
 "if at any time during the life of the tcife, any real or personal 
 estate should be given or devised, descend, or devolve, be be- 
 queathed or come to her or to the husband iu her right: " Spring 
 V. Pride, 4 De G. J. & S. 395; " all such real and personal estate 
 as, at any time during the said intended coverture, the wife or 
 the husband in her right shall become entitled to, by descent, 
 transmission, claim, devise, bequest, gift, donation, representa- 
 tion, purchase, or otherwise;" Bradford v. Romneij, SO Beav. 
 431; " if, at any time or times after the solemnization of the said 
 intended marriage, and during the joint lives of the husband and 
 v>ife, they or either of them in her right shall by gift, descent, 
 succession, or otherwise howsoever, become entitled to 
 any real or personal * estate, property, or effects; " Be | * 519 ] 
 CUnton's Trust, L. R. 13 Eq. 295. 
 
 Rule 183. — Vested reversion, not falling into possession dur- 
 ing coverture, not bound. - Where a vested remainder or rever- 
 sionary interest, to which the wife is entitl(>d at the date of tho 
 settlement, does not fall into possession until after the determin- 
 ation of the coverture, it is not bound l)y a coviMiant in whicli the 
 property to be settled is described by words applicable to future 
 acquisition only. 
 
 400
 
 * 520 WORDS DESCRIPTIVE OF FUTURE ACQUISITION. 
 
 " The covenant provides that any property shall be settled to 
 which the wife, or her husband in her right, should at any time 
 or times during the coverture become beneficially entitled in 
 possession or reversion, or in any manner whatever derivable 
 directly or indirectly from a particular source. Inasmuch as the 
 tenant for life outlived the wife, it is clear that she did not, nor 
 did her husband in her right, during the coverture become en- 
 titled in possession to a fund which was hers in, reversion before 
 the marriage took place. It is equally clear that the husband, 
 durino' the coverture, did not become entitled in right of his wife. 
 His tille accrued, not during the coverture, but afterwards, when 
 he took out administration to his wife's estate. The sort of 
 inchoate title that he had during the coverture, depending on the 
 possibility of the property falling into possession during the cov- 
 erture, really amounts to no property at all. Property such as 
 this is not property to which the husband or the wife ' became 
 entitled during'the coverture; ' " per Jessel, M. E., Re Jones' Will, 
 2 Ch. D. 362, where the wife was at the date of the marriage en- 
 titled to a reversionary interest in personalty which did not fall 
 into possession till after her death. 
 
 In Re Pedder's Settlement Trusts, L. R. 10 Eq. 585, where 
 James, V.-C, applied the rule to a vested remainder in real es- 
 tate which did not fall into possession till after the ter- 
 [*520] minatiou of the coverture, he says: — *"The words of 
 the covenant are words of futurity: 'shall during the 
 coverture become seised or possessed of or entitled to;' and I 
 find nothing to warrant a departure from the literal and natural 
 meaning of the words. This is not property with regard to 
 which it^can be averred that the husband or wife did become 'seised 
 or possessed of or entitled to' it 'during the coverture.' No 
 seisin, no title accrued to either of them in respect of it during the 
 coverture; hence the property does not satisfy the words of futurity 
 in the covenant, and consequently was not included within it." 
 
 See Re Clinton's Trust, L. R. 13 Eq. 295 (Wickens, V.-C.) to 
 the same effect. 
 
 Re VianVs Trusts, L. R. 18 Eq. 436, is not in accordance with 
 the above cases, and the decision was disapproved of by Jessel, 
 M. R., in Re Jones' Will, 2 Ch. D. 362. 
 
 It was at one time considered that, at all events where the re- 
 versionary interest was personalty, the change of interest caused 
 by the marriage, which gave an inchoate interest in the property 
 to the husband, was sufficient tO satisfy the words " becoming en- 
 titled, &c. ; " and accordingly, that property of this description 
 was bound whether it fell into possession after the death of the 
 wife only (Grafftey v. Humpage, 1 Beav. 46; Re Vianfs Trusts, 
 L. R. 18 Eq. 436), or after the deaths of both husband and wife 
 (Re Hughes' Trust, 4 Gif. 432); but these cases must be consid- 
 ered as overruled. 
 470
 
 WORDS DESCRIPTIVE OF FlTrRE ACQIISITION. * 522 
 
 The rule was applied to a post-nuptial settlement in Wi/inUiain's 
 Trusts, L. R. 1 Eq. 290, where the husband covenanted that "all 
 real and personal estate and etfects which shall or mav at any 
 time hereafter during the joint im'S of the husband and "wife des- 
 cend, devolve upon, or be given, devised, or bequeathed to, or in 
 trust for her" should be for her separate use (Wood, V. C, dis- 
 tinguished Grafftey v. Humpage, suj^ra). 
 
 Reference should be made to Lee v. Lee, 4 Ch. D. 175, where, 
 by ante-nuptial agreement, not under seal, signed by the 
 intending husband and wife and the parents of the *wife, [ * 521 ] 
 the parents agreed to appoint a share of certain real es- 
 tate, which was subject to their life interests, and to the appoint- 
 ment of them and the survivor of them to the wife; and the hus- 
 band agreed that ''he will settle such share as the wife may take 
 in her father and mother's marriage settlement either by appoint- 
 ment or in default of appointment." The wife's father, having 
 survived her mother, released the power and granted the estate 
 after his death, giving the wife a share. The wife predeceased 
 the husband and left two children. The property being still re- 
 versionary, an action was brought by the husband and one of the 
 children against the other child, the wife's heir-at-law, for spe- 
 cific performance of the agreement. Held, that the property in 
 question was bound, as being specifically described, and because 
 the wife having been a party to the agreement, thereby assented 
 to the property being settled in a particular way. 
 
 Rule 184. — Reversionary interest accruing during coverture. — 
 If the property be described by words of future acquisition only, 
 and during the coverture the wife "become entitled" to a vested 
 remainder or reversionary interest, even though it does not fall 
 into possession till after the termination of the coverture, it will 
 be bound by the covenant. 
 
 Examples — Covenant by the husband only, to settle " all the 
 estate, property, and eflFects to which the wife or the Jmsband in 
 her right shall at any time or times during the intended covert- 
 ure become seised or possessed of or entitled to, either at law or 
 in equity under any gift, devise, or bequest in her favour by or 
 on the part of her father; " the reversion was given to her by her 
 father's will; Hughes y. Young, :i2 L. J. N. S. Ch. 137; S. C, 
 1 N. K. 160; 9 Jur. N. S. 370. 
 
 Agreement and declaration and covenant by the husband only 
 that '"in case any personal estate, effects, and property 
 shall at any time or times hereafter during the * intended [ * 522 ] 
 coverture come to or vest in the irife or in the husl)nnd 
 in her right," such property should be settled; Butcher v. But- 
 cher, 14Beav. 222. 
 
 471
 
 * 523 WORDS DESCRIPTIVE OF FUTURE ACQUISITION. 
 
 See also Dickinson v. Dillwyu, L. R. 8 Eq. 546; Cowper Smith 
 V. Anstey, W. N. 1877, p. 28; see also Toicnshend v. Harroivhy, 
 4 Jur. N. S. 353, where it was held on the words of the settlement 
 that the remainder would or would not be bound according as 
 the husband or wife survived; S. C, 27 L. J. N. S. Ch. 553; 6 
 W. K 413. 
 
 Rule 185. — Contingent interest vesting in possession during 
 coverture. — Where the property included in the covenant is de- 
 scribed by words applicable to future acquisition only,. property 
 in which the wife has a contingent interest at the date of the 
 settlement or of the marriage, is bound by the covenant if it fall 
 into possession during the coverture, but not otherwise. 
 
 Where the wife is entitled to a contingent interest at the time 
 of the marriage, one of three events may happen. 
 
 (1.) It may not vest in interest during the coverture. 
 
 (2.) It may vest in interest and not in possession during the 
 coverture. 
 
 (3.) It may vest both in interest and possession during the 
 coverture. 
 
 The rule states that in the two first cases the property, when 
 described by words of futurity will not be bound, and that in the 
 thii'd case it will not be bound by the covenant; but as to (2.) 
 see Observation infra. 
 
 Accordingly, where the wife wa8 at the date of the marriage 
 entitled to a contingent interest in real estate (Archer v. Kelly, 
 1 Dr. & Sm. 300) or in real and personal estate (Brooks v. Keith, 
 1 Dr. & Sm. 462), the property, having fallen into possession 
 during the coverture, was held to be bound by the covenant. 
 
 On the other hand, where a contingent interest to which the 
 wife was entitled at the date of the marriage did not 
 [ * 523 ] vest in interest until after the termination of * the 
 coverture, it was held not to be bound; Atcherley v. Du 
 Moulin, 2 K & J. 186, where Wood, V. C, said (p. 193): " The 
 word ' entitled ' might be large enough to include a contingent 
 interest, if the other words of the sentence showed that it was to 
 have that effect; but when I find the words are that whatever she 
 should ' be or became entitled to during her coverture ' is to be 
 vested in the trustees (d) it is impossible to say that such a pro- 
 vision comprises anything more or other than what should so be- 
 come her property as to admit of being dealt with upon the 
 trusts of the settlement. It is very questionable whether such 
 a covenant would comprehend even a reversionary interest. Cer- 
 
 (d) As to the force of words referring to assurance or transfer to trustees, 
 see also i)er Wickens, V.-C, Be Clinton's Trusl. L. R. 13 Eq., at p. 306. 
 
 472
 
 CONTINGENT INTEREST. * 524 
 
 taialy this contingent possibility is not within the words or spirit 
 of the settlement." 
 
 Observation. — Contingent interest vesting in interest during 
 coverture. — There may possibly be some doubt whether the rnle 
 applies where the contingent interest to which the wife was en- 
 titled at the time of the marriage vests in interest, but not in 
 possession, during the coverture; but probably the rule does 
 apply. 
 
 It may fairly be argued that in the absence of special words, 
 the change from being contingent to being vested in interest is 
 not " becoming entitled '' within the meaning of the covenant, 
 so that the wife will not have to assign the property to the trus- 
 tees unless it falls into possession during the coverture, though she 
 might possibly be unable to deal with it while it remains rever- 
 sionary so as to defeat the settlement in the event of its falling 
 into possession during the coverture. 
 
 The only case on this point is Re MichelVs Trusts, 9 Ch. D. 5; 
 w^hich was decided in accordance with the rule, because " the hus- 
 band was not able to settle it during the coverture. He 
 c6uld not dispose of it by * any means, nor could he [ * 524 ] 
 and his wife together do so; it was not disposable; it 
 was not property which could be efiectually settled;" per Jessel, 
 M.R., at p. 10. It should be observed that the instrument under 
 which the wife took the reversionary interest was dated in 1825, 
 so that the interest was not alienable by the married woman un- 
 der Malin's Act, 20 & 21 Vict. c. 57, and, if the only reasons for 
 the decision were those given by the Master of the Rolls, a dif- 
 ferent decision might be given in a case falling under Malins' 
 Act, or the Married Women's Property Act, 1882. But Cotton, 
 L.J., gives another reason, saying that the object of the covenant 
 is to prevent the husband taking the property absolutely, and to 
 bind it for the benefit of the wife and children. 
 
 Contingent Interest acquired during Coi^erture. 
 
 There is no decision as to the effect of the covenant describing 
 the property by words of future acquisition only on a contingent 
 interest which first accrues to the wife during the coverture; it ap- 
 pears to satisfy the words "shall become entitled;" see Agar v. 
 George, 2 Ch. D. 706; Cornmell v. Keith, 8 Ch. D. 707; Re M<u'k- 
 enzie's Settlement, L. R. 2 Ch. 345, cited ante, |). 512; th.-iigh 
 possibly the reasoning in Re MichelVs Trusts, 9 Ch. D. 5, a///e, 
 p. 523, might be followed. 
 
 47.*}
 
 * 526 MARRIED women's PROPERTY ACT, 1882 LIFE INTEREST. 
 
 Cases falling within Malins' Act (20 & 21 Vict. c. 57). 
 
 In cases not falling within the Married Women's Property Act, 
 1882, but falling within Malins' Act, it might probably be held 
 that though the wife, if not a covenanting party, would not be 
 bound to convey the property while it was reversionary to the 
 trustees of the settlement; still that she would not be allowed to 
 convey the property while it was reversionary to any one else, 
 
 and that her husband would not be allcfwed to concur in 
 [ * 525] a conveyance by her in such a manner as to * prevent 
 
 the property from being transferred to the trustees on 
 its falling into possession. 
 
 Cases falling within the Married Women s Property Act, 
 
 1882. 
 
 Cases falling within the Married Women's Property Act, 1882, 
 are of two classes: — (1.) Where the marriage was before 1883, 
 and the married woman's title accrues after 1882; (2.) Where 
 the marriage was after 1882. In either of these cases the pro- 
 perty will not be bound unless the covenant binds the wife. 
 
 Life Interests. 
 
 Rule 186. — Life interest or income. — The presumption is that 
 ,the covenant does not extend to a life interest, or to income. 
 
 The nile was applied to income given to the wife for her sepa- 
 rate use in Townshend v. Harrowby, 4 Jur. (N. S. ) 353; S. C, 27 
 L. J. (N. S. ) Ch. 553; Duncan v. Carman, 21 Beav. 307; and 
 Forsfer v. Davies, 4 De G. F. & J. 133. 
 
 (In the two last-mentioned cases the life interest was for sepa- 
 rate use with restraint in anticipation.) 
 
 Husband's projyerty. — In Lewis v. Madocks, 17 Ves. 48, where 
 the covenant was to settle the husband's after- acquired property. 
 Lord Eldon, C. (at p. 55), said that he could not adopt the con- 
 struction that annual produce, for instance, dividends of stock, 
 was property acquired during the coverture in the sense of this 
 bond; except only to the extent to which the husband himself 
 might think proper to lay up that produce as capital: otherwise 
 they would not be at liberty to spend a shilling. 
 
 In St. Aubyn v. Humphreys, 22 Beav. 175, and in Whiie v. 
 Briggs, 22 Beav. 176 (n. ), it was held that a life interest acquired 
 by the husband, who had covenanted to settle his after- acquired 
 property, was not bound by the covenant. 
 
 [ *526 ] * Rule 187. — Named minimum value. — Where the 
 property to be settled is to be of a named minimum 
 474
 
 MINIMIM VALUE. . * 527 
 
 value, and the wife's interest is reversionary, the sum named 
 means the vahie of the property itself when it falls into posses- 
 sion, not the value of the wife's reversion at the time of settle- 
 ment. 
 
 See Re Mackenzie's Settlement, L. K. 2 Ch. 345; Cornmell v. 
 Keith, 3 Ch. D. 767; and Re Clinton's Trust, L. K. 13 Ecj. ".Uo; 
 where '>Vickens, V.-C, says (at p. 306): — "'The property to be ac- 
 quired is to be ' of the value of £100, or upwards. That seems to 
 me to mean the actual value, and not the estimated value of a 
 remainder acquired during coverture, and not falling into posses- 
 sion till many years afterwards." 
 
 Amount left in blank. — Where the amount is left in blank, 
 there is not such uncertainty as to render the covenant void, Lord 
 Cranworth, C, being of opinion that the covenant extended to all 
 capital but not to income to which the settlor should become en- 
 titled; Fyfe V. Arbuthnot, 1 De G. & J. 406: S. C, 26 L. J. 
 Ch. 646. ■ 
 
 " At any one time.'' — In Hood v. Franklin, L. R. 16 Eq. 496, 
 it was held (following Re Hooper's Trust, 13 \V. K. 710; S. C, 
 11 Jur. N. S. 479) that the words "at any one time," implied 
 "from one and the same source." In neither of these cases had 
 the wife any interest in either fund at the date of the settlement. 
 But in Mackenzie's Settlement, L. R. 2 Ch. 345, where the wife 
 was entitled at the date of the settlement to two different rever- 
 sions which fell into possession at the same instant, it was held 
 that, in estimating the value for the purpose of the covenant, the 
 aggregate value of the two shares, and not the value of each 
 share separately, must be taken. 
 
 Concurrent appointments of several sums. — Where the wife 
 took under several appointments made by herself on the same day 
 in exercise of the same power, and the amount appointed by each 
 deed was less than, though the aggregate sum exceeded, the 
 minimum, it was held that the ])roperty was not bound; 
 Boiver v. Smith, * 19 W. R. 399; S. C, L. R. 11 Eq. [ * 527 ] 
 279, where it is reported incorrectly; see Steward v. 
 Pop2)leton, W. N. 1877, p. 29. 
 
 Increase of value after coverture determined. — Covenant for 
 settlement of wife's after-acquired property of the minimum 
 value of £500. Prior to the date of the settlement, a bequest 
 had been made to trustees of an annuity, to be applied wholly or 
 partly for testator's widow, the surplus to l)e accumulaled, and 
 divided at her death among the testat(jr's children, one of wht)m 
 was the int(*nded wife. The husband died before the time of 
 distribution; and when that time arrived the wife's sliare amounted 
 to over £500, but it had never anjonntcd it) that sum during the 
 coverture; lield, that it was not bound; Re Wetslcad, W'clstrad v. 
 Leeds, 47 L. T. 331. 
 
 475
 
 * 528 COVENANTOR ACQUIRING DIFFERENT INTEREST. 
 
 Notwithstanding the rule in equity, see ante, p. 499, that if a 
 man contracts to convey, mortgage, or sell, certain property and 
 afterwards acquires such a title as enables him to carry out his 
 contract, he is bound to do so; Taylor v. Debar, 1 Ch. Ca. 274; 
 S. C, sub nom. Taylor v. Dabar, "Z Ca. Ch. 212; Seabourne v. 
 Powell, 2 Vern. 11; Morse v. Faulkner, I Ans. 11; S. C, 3 Swanst. 
 429, note; Noel v. Bewley, 3 Sim. 103; Jones v. Kearney, 1 Dr. «& 
 War. 134. 
 
 Rule 188. — Where covenantor acquires a dbfferent interest. — If 
 A. covenants to settle a particular interest in property, and after 
 wards becomes entitled to a different interest in that property, 
 such interest is not bound by the covenant. 
 
 Examples. — A. being possessed of a lease for years, covenanted 
 in a deed making a family provision that, if he should die during 
 the continuance of the term of the lease, his executors should as- 
 sign the residue of the term to B. A. afterwards purchased the 
 reversion in fee and died. Held, that the covenant did not pre- 
 clude A. from purchasing the reversion, and that his executors 
 were not liable as for breach of the covenant; Williamson v. Biit- 
 terfield, 2 Bos. & P. 63. 
 
 A., being under her parents' marriage settlement tenant in 
 tail in remainder of certain lands, expectant on the 
 [ * 528 ] * failure of issue male of her brother, agreed in her own 
 marriage settlement, which recited the former, that, ^'in 
 case she shall become entitled to any such estate, part, or share, 
 as aforesaid," it should be conveyed to the uses of the settlement. 
 The brother suffered a recovery and died intestate, whereupon 
 she inherited one-fourth of the lands as one of his four co-heir- 
 esses. Held, that the covenant did not affect the fee simple so 
 coming to her by descent; Tayleur v. Dickenson, 1 Russ. 521. 
 
 A., being entitled under the will of B. to a contingent remain- 
 der in land, by settlement reciting his title, covenanted that when 
 and so soon as "the said remainder" should become vested in 
 him in possession, he would settle it. The lands were disentailed 
 by tenants in tail under the prior limitations of the will, and ulti- 
 mately came to A. by descent and devise from them: held, that 
 A.'s covenant did not affect the fee simple thus acquired by him, 
 inasmuch as he never acquired'a vested interest in the remainder 
 under.the will of B.; Smith v. Osborne, 6 H. L. C. 375. 
 
 The five children of a testator were absolutely entitled to his 
 residue. One of them, on her marriage, settled her fifth of such 
 residue, and " all other her share by survivorship or otherwise, 
 and all her right contingent, reversionary or other interest, possi- 
 bility, claim, and demand therein." She afterwards became en- 
 titled to a further share by the death of a brother intestate. 
 476
 
 INFANT WIFE. * 529 
 
 Held, that it was not inchided in the settlement; Edwards v. 
 Broughton, 32 Beav. 667. 
 
 A. being entitled to an interest under a will in certain funds, 
 by her marriage settlement assigned " all the share to which she 
 then was or might become entitled by accruer, survivorship or 
 otherwise " in the specified funds. Held, that a sbaro in the 
 funds taken by her under the will of her father, who had become 
 entitled thereto, was not affected by the settlement; Parkinson v. 
 Dashicood, 30 Beav. 49; Siveetapple v. Horlock, 11 Ch. D. 745, 
 stated a)ite, p. 512, is an example of this rule. See also Childers 
 V. Eardley, 28 Beav. 648, stated ante, p. 136. 
 
 * Infant Wife {b). [*529] 
 
 If the wife be an infant, she cannot bind herself by her cove- 
 nant to settle, but the husband will not be allowed to do or con- 
 cur in any act to enable her to dispose of the property in a man- 
 ner inconsistent with her covenant; Rimm v. Insall, 7 Ha. 193. 
 See Milnor v. Harewood, 18 Ves. at p. 279; and Ex parte Blakr, 
 16 Beav. 463, where the covenant was that the property should be 
 conveyed by the husband and wife to the trustees : but the re- 
 port does not state by whom the covenant was made. It appears, 
 however, that the wife was an infant, and therefore, even if she 
 purported to covenant, the covenant was not binding on her. 
 (The ol)servation of the M. R., at p. 471, that "the covenant of 
 the wife is not binding on her," seems to indicate that she was a 
 covenanting party. ) 
 
 Where the husband alone covenanted, and the wife was an in- 
 fant, it was held that property to which she became entitled dur- 
 ing the coverture and after 1882, so that it was her separate prop- 
 erty by virtue of the Married Women's Property Act, 1882, was 
 not bound; Re Queade's Trusts, W. N. 1884, p. 225. 
 
 Where the wife was an infant, and the settlement recited that 
 it had been agreed that the property, both real and personal, 
 should be settled, and that the husband should enter into the 
 covenant therein mentioned, and the husband covenanted that, 
 
 ib) Election by wife to confirm covenant.— The. wife may during the coverture 
 elect to confirm hercovenant; Smitli\. Lucas, 18Cli. I). 5^1 ; Wililtrw l'i<joit, 
 22 Ch. D. 2():'.; Kinq v. Lucas, 2:5 Ch. 1). 712; and a.s to real estate without 
 deed acknowledged; P.arrow v. Harrow, \ K. & .1. 40!); and that even iC she 
 ha.s, as a conseijuence of election^to give np a life interest subject to a re- 
 straint on anticipation; lieVnrdon'H VV/w^s, 28 Ch . 1). 121; lie Quradr's Trusts, 
 29 S. .1. 'ir)(j; S. C. W. N. 1885, p. i)9: foHowing WUIontihby \. Middlvtmi, 2.1. 
 & H. ?,\\, in preference to Smith v. Lucas, 18 Ch. D. '>.\\, and Kc Whcalivy, 
 27 Ch. D. «()6. 
 
 Volunteers cannot enforce covenant. — Hut volunteers, e. g.. next of kin, can- 
 not enforce the covenant against the legal personal representative of an in- 
 fant wife; Be D'Angibau, Andrews v. Andrews, 15 Cb. D. 22h. 
 
 477
 
 * 531 MISCELLANEOUS. 
 
 " in case the wife would voluntarily consent thereto, but 
 [*530] not otherwise," he and she * would settle, it was held 
 
 that the consent applied to the real estate only, and that 
 the personalty must be settled, even if the wife refused to con- 
 sent; Re DanieVs Trust, 18 Beav. 309. 
 
 Covenants to Settle Husband's Property. 
 
 There is but little authority as to the meaning of covenants to 
 settle the husband's property. See Prebble v. Boghurst, 1 Swan. 
 309, ante, p. 511; Randall \. Willis, b Yes. 262; Needham\. Smith, 
 4 Kuss. 318; Tayleur \. Dickinson, 1 Ritss. 521; Churchill \. 
 Denny, L. R. 20 Eq. 534, ante, p. 517. See also the cases cited 
 under Rule 186, p. 525; 3 Dav. Conv. 219; Peachy on Settle- 
 ments, 544. 
 
 To leave by will. — As to covenants to leave property by will, 
 see Jones y. Martin, 3 Ans. 882; S. C, 5 Ves. 266 (n.); Fortescue 
 v. Hannah, 19 Ves. 67; Willis v. Black, 1 Sim. & St. 525; S. C, 
 4 Russ. 170; Needham v. Smith, 4 Russ. 318; Cochran v. Gra- 
 ham, 19 Ves. 66; Graham v. Wickham, 1 De G. J. & S. 474; 
 Patchy. Shore, 2 Dr. & Sm. 589; M'Carogher v. Wheldon, L. R. 
 3 Eq. 236; Re Brookham, L. R. 5 Ch. 182; Jervisv. Wolferstan, 
 L. R. 18 Eq. 18. 
 
 Miscellaneous Cases. 
 
 Where the husband covenanted to settle the share of his wife 
 and himself "in her right" under her grandfather's will, held, 
 that this meant property which the wife, but for the marriage, 
 would have taken, and therefore an interest given to the husband 
 himself was not bound; Ibbetson v. Grote, 25 Beav. 17. 
 
 It has been held that property given to the husband and wife 
 as joint tenants in fee, was not within the covenant; Edye v. Ad- 
 dison, 1 H. & M. 781; S. C, 12 W. R. 97. 
 
 Covenant to settle " any real or personal estate and effects " 
 on trusts for sale and investment; held, that no exception could 
 be implied of any specific chattels; Willoughby v. Middleton, 2 
 
 J. & H. 344. 
 [ * 531 ] * A covenant to settle "fortune or substance " ex- 
 tends to real estate; Scully v. Scully, Sugd. Law of 
 Prop. 104. 
 
 An estate tail to which the wife became entitled in possession, 
 held not to be bound bv the covenant; Hilbers v. Parkinson, 25 
 Ch. D. 200. 
 
 Where the covenant was for the settlement of property coming 
 to or vesting in the tvife or the husband in her right during the 
 coverture, it was held that a legacy given to the wife by her father, 
 478
 
 MISCELLANEOUS. * 531 
 
 which was saved by her leaving issue from lapse on her death in 
 his lifetime, was not bound bv the covenant; Pearce v. Graham, 
 11 W. R. 415; S. C, 32 L. J.'Ch. 359. 
 
 As to the operation by way of covenant of an attempted assign- 
 ment of property not belonging to the assignor, see ante, Chap. 
 XXVII., Covenants, p. 408. 
 
 179
 
 533 EXECUTED AND EXECUTORY TRUSTS. 
 
 [ * 532 ] * CHAPTER XXXII. • 
 
 MARRIAGE ARTICLES. 
 
 Trusts executed: executory: Direction to convey — "to settle as 
 counsel shall advise:'' In executory trusts technical language 
 may be disregarded : In marriage articles tfie children of first 
 taker to take by jmrchase if possible ; but the contrary may 
 appear by the context : Where one parent alone could not 
 defeat settlement : Where articles settle part strictly : Where 
 limitation to heirs of the body follows limitations to so7is as 
 purchasers: Discrepancy between articles and settlement: 
 Construction of executory trusts in voluntary deed or will — 
 ''Heirs male of the body : " " Issue male : " "■Heirs female of 
 the body : "' ''Heirs of the body : " " Issue : " Order of estates 
 tail of children : " Issue, ivhether son or daughter : " " Child 
 or children of marriage: " " Nearest relative in male line: " 
 Miscellaneous : Life estate : Covenant to settle chattels by ref- 
 erence to limitations 6f realty : Articles to settle personalty : 
 Interests of wife — of children: Ultimate trusts: "Issue,"" 
 meaning children : General power of appointment cut down 
 to poiver to appoint among children : What powers should be 
 inserted in the settlement: aliens. 
 
 Definition.— -Eaecitfed trust.- A trust is called executed when 
 the statement of the trusts is complete and final. 
 
 Definition. — Executory trust. — A trust is called executory, 
 when the statement of the trust is incomplete, and 
 
 [ * 533 ] * requires to be further expressed by a subsequent in- 
 strument; Glenorchy v. Bosville, Ca. t. Talb. 4, S. C. 
 
 1 Wh. & Tud. 1. 
 
 Distinguished from executed trusts. — A mere direction to con- 
 vey does not render the trust executory; Doncaster v. Doncaster, 
 
 480
 
 TECHNICAL LANGIAC.E DISREGARDED, * 534 
 
 3 K. & J. 26, per Wood, V.-C, at p. 35; Franks v. Price, 3 Beav. 
 182; for "ail trusts are ia a sense executory, because a trust can- 
 not be executed except by conveyance, and therefore there is always 
 something to be done. But ... a Court of Eqiiity considers an 
 executory trust, as distinguished from a trust executing itself, 
 and distinguishes the two in this manner: — Has the testator been 
 what is called his own conveyancer? Has he left it to the Court 
 to make out from general expressions what his intention is, or 
 has he so defined that intention that you have nothing to do but 
 to take the limitations he has given to you, and to convert them 
 into legal estates?" per Ld. St. Leonards, Egerton v. Karl Brown- 
 loir, 4 H. L. C. 210. 
 
 " Wherever the assistance of trustees, which is ultimately the 
 assistance of the Court, is necessary to complete a limitation, in 
 that case, the limitation of the will not being complete, that is 
 sufficient evidence of the testator's intention that the Court should 
 model the limitations. But where the trusts and limitations are 
 already expressly declared, the Court has no authority to inter- 
 fere, and make them different from what they would be at law;" 
 per Sir R. Henley, L. K., Austen v. Taylor, 1 Ed. at p. 368; S. C, 
 Amb. 376; cited per Plunket, C, Herbert v. Blunden, 1 Dr. & Wyl. 
 91. 
 
 "In construing the words creating an executory trust, a Court 
 bf Equity exei'cises a large authority in subordinating the lan- 
 guage to the intent;" per Ld. Westbury, Sackville-West v. Holmes- 
 dale, L. R. 4 H. L. at p. 565. 
 
 Rule 189. — Direction to settle as counsel shall advise. — A di- 
 rection to Settle 'as counsel shall advise,' affords a strong indi- 
 cation that the trusts are executory; White v. Carter, 2 Amb. 670; 
 S. C, 2 Ed. 366. 
 
 * " The words ' as counsel shall advise ' must bo read as [ * 534 ] 
 qualifying the dispositions; you would not go to coun- 
 sel, and ask his advice merely as to the proper form of convey- 
 ance to be used, whether feoffment, bargain atid sale, or lease and 
 release, but you would also inquire how the limitations should be 
 framed;" per Sugden, C, Rochfort v. Fitzmaurice, 2 Dr. & War. 
 at p. 21. 
 
 Rule 190. — Technical language may he disregarded. ~1\\ the 
 case of executory trusts, the technical language of limitations 
 may be disregarded if it appear on the face of the instrument di- 
 recting the settlement to be made, that such technical language 
 cannot be inserted in the settlement without defeating the inten- 
 tion of the parties. 
 
 31 INTKIiPUICTATION OK niCKDS. 481
 
 * 535 FOR LIFE WITH REMAINDER TO HEIRS OF TENANT FOR LIFE. 
 
 " In matters executory, as in case of articles or a will directing 
 a conveyance, where the words of the articles or will are improper or 
 informal, this Court will not direct a conveyance according to 
 such improper or informal expressions in the articles or will, but 
 will order the conveyance or settlement to be made in a proper 
 and legal manner, so as may best answer the intent of the par- 
 ties;" per Lord Cowper, C., Stamford v. Hobart, 3 Br. P. C. 
 Edit. Toml. at p. 33. 
 
 " Articles are considered [in equity] as minutes only, and the 
 settlement may afterwards explain more at large the meaning of 
 the parties;" ppr Lord Hardwicke, C, Blandfordv. Marlborough, 
 2 Atk. 545. 
 
 " If it is clearly to be ascertained from anything in the will 
 that the testator did not mean to use the expressions which he 
 has employed in their strict, proper,, technical sense, the Court, 
 in decreeing such settlement as he has directed, will depart from 
 his words, in order to execute his intention; but the Court must 
 necessarily follow his words, unless he has himself shown that he 
 did not mean to use them in their proper sense; and have never 
 said that merely because the direction was for an entail, they 
 would execute that by decreeing a strict settlement;" per Lord 
 
 Eldon, C, Blackburn v. Stables, 2 V. & B. 367. 
 [ * 535 ] * " I must suppose that those who use technical words 
 intend to use them in a technical sense, unless some- 
 thing to the contrary appears. In this case, then, I must look 
 for the intention upon the face of the instrument itself. If I 
 come to the conclusion that it is an executory trust, there is no 
 difference whatsoever between executory trusts, whether created 
 by marriage articles, by a voluntary settlement, or by a will. 
 There is, indeed, in the latter case, much greater difficulty in 
 arriving at the conclusion that the trust is executory; for, in the 
 first case, the nature of the instrument establishes the fact; in the 
 others, it must be collected from the nature of the dispositions in 
 the instruments. I admit that, though this trust is so far execu- 
 tory as to leave something to be done, yet the party may after- 
 wards have become, as it is styled, 'his own conveyancer,' that is, 
 he may have defined so clearly his intention as to the limitations 
 of the settlement as to leave no room for ambiguity or doubt; if 
 he had done so, I must have given to the words he has used their 
 legal operation;" per Sugden, C, Rochfort v. Fitzmaurice, 2 Dr. 
 & War. 20. 
 
 Rule 191.— iVa^ttre and purpose, point to strict settlement.— -In 
 the case of marriage articles, the nature and purpose of the in- 
 strument show that it could not be intended to allow the settle 
 ment to be defeated by the first taker; and, accordingly, words 
 giving him an estate for life, with remainder to his heirs, or to 
 482
 
 NO ESTATE FOR LIFE — DATGIITER!? (^,.\ VELKIND, ETC. * 537 
 
 the heirs, or issue, of his body, will be construed so as to give him 
 an estate for life only, with remainders over in strict settlement 
 See, to this effect, per Lord Eldon, C, in JerroL<<e v. Duke of 
 Northumberland, 1 J. & AV. 574; per Grant, M. R., Blacklmru v. 
 Stables, 2 V. & B. 370;" per Lord St. Leonards, Jiochfort v. Fitz- 
 viaurice, 2 Dr. & War. 20; per Lord Cairns, C, Sack cille- West 
 V. Holmesdale, L. R. 4 H. L. 572. See also Davies v. 
 Davies, *4 Beav. 54; Fearne, C. R. 90; and notes to [ * 536 ] 
 Glenorchij v. Bosville, in 1 Wh. Si Tud. at p. 20 ( 5th ed. ). 
 
 " When the object is to make a provision by the settlement of 
 an estate for the issue of a marriage, it is not to be presumed that 
 the parties meant to put it in the power of the father to defeat 
 that purpose, and to appropriate the estate to himself. If, there- 
 fore, the agreement is to limit an estate for life, with remainder 
 to the heirs of the body, the Court decrees a strict settlement in 
 conformity to the presumable intention;" per Grant, M. R., 
 Blackburn v. Stables, 2 V. & B. 370; see also Trevor v. Treror 1 
 Eq. Ca. Ab. 387; S. C, 1 P. Wms. 622; 5 Bro. P. C. (Ed. Tom.) 
 122; Streatfield v. Streatfield, Ca. t. Talb. 176; S. C, 1 Wh. &' 
 Tud.; Jones v. Langhton, 1 Eq. Ca. Ab. 392; Deerhurst v. St. 
 Albans, 5 Madd. 260; Davies v. Davies, 4 Beav. 54. 
 
 No express estate for life to parent. — The rule is applied even 
 in cases where no express limitation for life is made to the pa- 
 rent in the articles, so that the rule in Shelleif's Case does not 
 apply, and a settlement made strictly in conformity with the arti- 
 cles would not be liable to be defeated by him; Griffith, v. Buckle, 
 2 Vern. 13; Cusack v. Cusack, 5 Bro. P. C. (Ed. Tom.) 116; 
 Grier v. Gi'ier, L. R. 5 H. L. 688. 
 
 Rule applied in favour of daughters. — The rule is applied in 
 favour of daughters; Nandick v. Wilkes, 1 Eq. Ca. Ab. 393: S. 
 C, sub nom. Nandicke v. Wilkes, Gilb. Eq. Rep. 114; Dodv. Dod, 
 1 Amb. 2/4; West v. Erissey, 2 P. W^ms. 349; S. C, 1 Bro. P. C. 
 (Ed. Tom.) 225: Hart v. Middlcliurst, 3 Atk. 371; Phillips v. 
 James, 2 Dr. & Sm. 404; S. C, 3 De G. J. & S. 72; unless they 
 are provided for by portions; Poa-ell v. Price, 2 P. Wms. 535; S. 
 C, 2 Eq. Ca. Ab. 40; or unless the articles provide for issue 
 male only; Maguire v. Scullij, 2 Hog. 113; S. C, Beat, at ]>. 380, 
 
 Gavelkind; or Borough -English . It makes no difference iu the 
 construction of the articles that the land is gavelkind; Roberts v, 
 Dixwell, 1 Atk. 606; or Borough- English; Starkey v. Starkey, 8 
 Bac. Ab. 302 (7th ed.). 
 
 * The context may show that the rule is not to be [ * 537 ] 
 applied: 
 
 In Collins v. Phininier, 1 P. Wms. 104, Where the articles con - 
 
 488
 
 * 538 EXCEPTIONS TO RULE. 
 
 taiaed a covenant that the husband should not suffer a recovery, 
 the rule was not applied, since it was clear that the parties in- 
 tended to rely on his covenant. 
 
 The rule is subject to three exceptions: — 
 
 First Exception. — Where one payment alone could not defeat 
 settlement — Where, in the case of articles executed prior to the 
 Fines and Recoveries Act, the property of the husband was set- 
 tled on the wife and the heirs of her body: for this created an 
 estate tail, ex provisione viri, which could not be barred by either 
 husband or wife alone; see Greneley^s Case, 8 Eep. 71 b; Honor 
 V. Honor, 1 P. Wms. 123; Highway v. Banner, 1 Bro. C. C. 584; 
 Whateley v. Kemi?, cited 2 Ves. Sen. 358; per Lord Hardwicke, 
 Green v. Ekins, 2 Atk. 471; per Lord Hatherley, Sackvilte-West 
 V. Hohnesdale, L. R. 4 H. L. C. 554. But this exception does 
 not exist when the articles are made after 1833; per Sugden, C, 
 Eochford v. Fitzmaurice, 2 Dr. & War. at p. 19. 
 
 Second Exception. — Where articles settle part strictly. — If 
 part of the land be by the articles themselves settled in strict 
 settlement, and other part be limited to the first taker, and the 
 heirs of his body; for this shows that the parties knew how to 
 limit the estate in strict settlement when they wished to do so; 
 Chambers v. Chambers, Fitz.-G. 127; S. C, Mos. 333; 2 Eq. Ca. 
 Ab. 35, pi. 4; How'el v. Howel 2 Ves. Sen. 358. 
 
 Third Exception. — Limitation to heirs of body after limita- 
 tions to sons as purchasers. —Where the limitation to the heirs 
 of the body is in remainder after limitations to sons the limita- 
 tions in strict settlement will not» be extended to daughters; 
 Poicell V. Price, 2 P. W^ms. 535, where the construction was aided 
 by the fact that portions were provided for the daughters. 
 
 Rule 192.— Articles and settlement both before mar- 
 [ * 538 ] riage. — If the marriage articles and the * settlement 
 are both made before the marriage, the settlement will 
 be considered as superseding the articles, unless it be expressly 
 stated to have been made in pursuance of them, or unless it can 
 be otherwise shown that it was intended to carry them out, and 
 that the difference has arisen by mistake. 
 
 Rule 193. — Articles before and settlement after marriage: — 
 If the articles are made before and the settlement after the mar- 
 riage, the articles will control the settlement. 
 
 " Where articles are entered into before marriage, and a set- 
 
 484
 
 ARTICLES CONTROLLING SETTLEMENT. * 539 
 
 tlement is made after marriage difterent from those articles (as 
 if by articles the estate was to be iu strict settlement, and by the 
 settlement the husband is made tenant in tail whereby lie'hatb 
 it in his power to bar the issue), this Court will set up the ar- 
 ticles against the settlement; but where both articles and settle 
 ment are previous td the marriage, at a time when all parties are 
 at liberty, the settlement differing from the articles will be takea 
 as a new agreement between them, and shall control the articles. 
 And although in the case of West v. Erinsey, 2 P. Wms. 849; S. 
 C, 1 Bro. P. C. (Ed. Tom.) 225, the articles were made to con- 
 trol the settlement made before marriage, yet that resolution no 
 way contradicts the general rule: for in that case the settlement 
 was expressly mentioned to be made in pursuance and perform- 
 ance of the marriage articles, whereby the intent appeared to be 
 still the same as it was at the making of the articles; "' per Talbot, 
 C, Legg v. Goldtvire, Ca. t. Talb. 20; S. C. 1 Wh. & Tud., 5th ed. 
 17. In West v. Erissey, 2 P. Wms. 849; S. C, 1 Bro. P. C, (Ed. 
 Tom.) 225; Honor v. Honor, 1 P. Wms. 128; and Roberts v. 
 Kinsly, 1 Yes. Sen. 288, where, although the settlement was made 
 before the marriage it was expressly stated to be made in pur- 
 suance of the articles, and in Randall v. Willis, 5 Ves. 
 262, where the settlement was made after * the mar- [ * 589 ] 
 riage, it was held that the settlement must be controlled 
 by the articles. 
 
 In Bold V. Hutchinson, 5 De G. M. & G. 558, Lord Cranworth, 
 C, says (at p. 568):^" The doctrine now is, that when a settle- 
 ment purports to be in pursuance of articles entered into before 
 marriage, and there is any variance, there no evidence is neces- 
 sary in order to have the settlement corrected; and although the 
 settlement contains no reference to the articles, yet, if it can be 
 shown that the settlement was intended to be in conformity with 
 the articles, yet if there is clear and satisfactory evidence show- 
 ing that the discrepancy had arisen from a mistake, the Court 
 will reform the settlement and make it conformable to the real 
 intention of the parties." 
 
 Letter folloived by articles.— A.S to a letter by a lady's father 
 stating what her fortune would be, followed by articles for the 
 settlement of part only of the property mentioned in the letter, 
 see Re Badcock, 17 ('h. D. 301. 
 
 Exception. — Where, under a settlement made after marriage, 
 an adult takes a smaller interest than he would have taken under 
 the articles, the presumption is that the variance was made pur- 
 posely, unless the settlement is expressly made in pursuance of 
 the articles; Fartyn v. Roberts, 1 Amb. 315. 
 
 Rule 194. — Voluntary deeds and trills. — In the case of a V(j1- 
 nntary deed or of a will containing executory trusts, the in- 
 
 485
 
 * 541 VOLUNTARY DEEDS — WILLS. 
 
 tention that the exact words mentioned in the instrument as pro- 
 per for the complete settlement are not to be used, must be plainly 
 manifested, and will not be assumed merely because the instru 
 ment is executory; per Lord Hatberly, C, Sackville-Wesf v. 
 Hohnesdale, L. K. 4 H. L. 554; see the discussion in Deerhurst 
 V. St Albans, 5 Mad. at p. 255. 
 
 "If a will directs a limitation for life, with remainder to the 
 heirs of the body, the (Jourt has no such ground," {i.e., 
 \ * 540 ] of purpose of the instrument ) " for decreeing a * strict 
 settlement. A testator gives arbitrarily what estate he 
 thinks fit. There is no presumption that he means one quantity 
 of interest rather than another, an estate for life rather than in 
 tail or fee. The subject being mere bounty, the intended extent 
 of that bounty can be known only from the words in which it is 
 given; but if it is clearly to be ascertained from anything in the 
 will that the testator did not mean to use the expressions which 
 he has employed in their proper technical sense, the Court, in de- 
 creeincr such settlement as he has directed, will depart from his 
 words in order to execute his intention ; but the Court must neces- 
 sarily follow his words, unless he has himself shown that he did 
 not mean to use them in their proper sense;" pe?- Grant, M.R., 
 Blackburn v. Stables, 2 V. & B. at p. 370. 
 
 " Voluntary settlements and wills generally stand on the same 
 footing. The settlement cannot stand on a footing inferior to 
 that of a will: for the very act of making the settlement inter 
 vivos rather leads to the inference that a strict settlement was 
 intended; in both, however, the rule of law is clear; the inten- 
 tion must be collected from the four corners of the instrument, 
 and the nature of the instrument does not enable the Court to 
 say that a strict settlement was intended. In marriage settle- 
 ments the nature of the instrument leads to that conclusion; but 
 in the case of a voluntary settlement, or even a settlement for 
 valuable consideration not upon marriage, there is nothing irra- 
 tional in a limitation to a son of the settlor in tail; it may be 
 improvident, but it is difficult to say that it could not have been 
 intended. I must suppose that those who use technical words 
 intended to use them in a technical sense, unless something to the 
 contrary appears;" per Sugden, C, Rochfort v. Fitzinatirice, 2 
 Dr. & War. at p. 20. 
 
 Accordingly in the cases of Seale v. Seale, 1 P. Wms. 290; 
 Garth v. Baldwin, 2 Ves. Sen. 64(3, and Blackburn v. Stables, 2 
 V. & B. 307. the settlement was carried out by giving an estate 
 tail to the first taker. 
 
 On the other hand, a strict settlement was decreed in 
 [ * 541 ] * the cases of Leonard v. Sussex, 2 Vern. 526, were the 
 words were " taking special care in such settlement that 
 486
 
 "HEIRS MALE OF BODY" — "ISSLE MALE." * 542 
 
 it never be in the power of either of_the said A. and B. to dock 
 the entail; "' White v. Carter, Amb. 670, where the settlement was 
 to be made " as counsel should advise on A. and the heirs male of 
 his body, to take in succession and priority of birth; " in Papil- 
 Ion V. Voice, 2 P. Wms. 471, where money was given to be laid 
 oiit in the purchase of laud to be settled *on B. for life, without 
 impeachment or waste, with remainder to trustees to preserve 
 contingent remainders, with remainder to the heirs of the body 
 of B., with remainders over, with power to B. to ••make a joint- 
 ure; " in Bastard v. Probij, 2 Cox, 6; where the settlement was 
 to be made "'as counsel should advise, in trust for A. for life, and 
 after her death, then on the heirs of her body lawfully issuing; 
 but in case A. should die without leaving issue, &c.; " in tShelton 
 V. Watson, 16 Sim. 543, where there was a direction to purchase 
 an estate "to be made hereditary and settled on my here consti- 
 tuted heir, and to descend to his heirs, or, dying without issue, as 
 I shall now provide for. I hereby constitute A. my heir and suc- 
 cessor: and the said estate, when purchased, is to be settled on 
 him, his heirs and successors in the direct male line lawfully be- 
 gotten and born in wedlock. In case the said A. die without issue," 
 remainders over; " my object, intent, desire, and command, being 
 that the said estate shall never pass out of my family, and that 
 no person shall hold it under any other name than the name of 
 B." In Thompson v. Fisher, L. R. 10 Eq. 207, where the settle- 
 ment was to be made " to the use of A. and the heirs of his body 
 lawfully issuing, but in such manner and form nevertheless, and 
 subject to such restrictions and limitations as that if the said A. 
 shall happen to die without leaving lawful issue" the property 
 shall descend to testator's daughter; in Lord Glenorchy v. Bosville, 
 Cas. t. Talb. 3; S. C, 1 AVh. k Tud. 1, where the settlement 
 was to be made to A. for life, without impeachment of 
 * waste, voluntary waste in houses alone excepted, re- [ * 542 ] 
 mainder to her husband for life, remainder to the issue 
 of her body, with remainders over. 
 
 Of the form of the Settlehnent. 
 
 "We have now to consider the form that a settlement made in 
 pursuance of articles ought to take. 
 
 Rule 195. — Land to be settled on '" heirs male of the bodjj," or 
 " istiue viale.^^ — When the subject-matter of the articles is land, 
 and provision is made for the " heirs male of thn ])ody " or " issue 
 male," the sons take successively in tail main. 
 
 As to inserting cross-remainders, see Surtees v. Surtees, L. It. 
 12 Eq. 400. 
 
 487
 
 *543 ""HEIRS OF body" — -'issue" — "SETTLE." 
 
 See Cusack v. Cusack, 5 Bro. P. C. Ed. Tom. 116; Brennan v. 
 Fitzmaurice, 8 Ir. Eq. R. 113, where the words are "heirs male 
 of the body;" Trevor \. Trevor, 5 Bro. P. C. Ed. Tom. 122; S. 
 C, 1 Ab.Eq. 387; S. C, 1 P. W. 622; where the words are "heirs 
 male of the body and the heirs male of such heirs male issuing; " 
 Bee also Maguire v. Scully, 2 Hog. 113; S. C, Beat. 370. 
 
 " Heirs female of the body.'" — So "heirs female of the body" 
 means daughters; IVest v. Errisey, 2 P. Wms. 349; S. C, 1 Bro. 
 P. C. Ed. Tom. 225. 
 
 First male issue. —"First male issue lawfully begotten which 
 should attain the age of twenty-one years " means the first son 
 who attains twenty- one; Hampson v. Brandwood, 1 Madd. 381. 
 
 Issue male. — Where the articles reserved a power to the wife to 
 appoint to "her issue male by the intended husband." Held, that 
 a son of her daughter by him was not an object of the power; 
 Lambert v. Peyton, 8 H. L. C. 1. See ante. Rule 90, p. 254. 
 
 Rule 196. — Land to be settled on "-heirs of the body,'^ or 
 " issue.^^ — Where the subject-matter of the articles is land, and 
 
 provision is made for "heirs of the body," or "issue," 
 [ * 543 ] the sons take successively * in tail, with remainder to 
 
 the daughters as tenants in common in tail, with cross- 
 remainders between them. 
 
 The case of Nandick v. Wilkes, 1 Eq. Ab. 393, pi. 5; S. C, Gilb. 
 Eq. Rep. 114, shows that "heirs of the body," and the cases of 
 Dod V. Dod, Amb. 274; Hart v. Middlehurst, 3 Atk. 371; Trevor v. 
 Trevor, 13 Sim. 108; S. C, 1 H. L. C. 239; Prebble v. Boghurst, 
 1 Swanst. 309 (see 332); Phillips v. James, 2 Dr. & Sm. 404, 3 
 De Gr, Jo. & S. 72, show that " issue " means both sons and 
 daughters. In all these cases, except Prebble v. Boghurst, where 
 the point did not require decision, it was held that the sons took 
 successive estates in tail with remainder to the daughters in tail; 
 and, after some conflict of authorities, it appears to be the better 
 opinion that the latter take as tenants in common in tail with 
 cross remainders. 
 
 The reason for the rule is stated in Gn'er v. Grier, L. R. 5 H. 
 L. 688 (see p. 706,) by Lord Cairns, who says: — "In executing this 
 provision in the marriage articles, the Court of Chancery would 
 have made, under the term ' issue,' a provision in some way or 
 other for the whole of the children of the marriage both male and 
 female ... by raising and creating estates tail; because other- 
 wise the first line only would have been provided for, whereas the 
 term ' issue,' as we know, includes descendents ad infinitum. . . . 
 'The only question which remains . . . is this : — W^ould the in- 
 terest . . . have been created by giving estates tail to the children 
 concurrently, or would it have been created by giving estates tail 
 488
 
 DAUGHTERS TAKE AS TENANTS IN COMMON. * 545 
 
 to them successively? In either case you provide for the children 
 of the marriage, or the issue of the marriage, ad i)itiininm . . . 
 I entirely agree with the observation made in the Court below, 
 that great weight is to be attributed to the term which is used, 
 namely ' settle.' As I understand that word, it must mean this, 
 that the husband agrees to settle — that is to say, to make 
 a settlement of — the property upon the issue *of the mar- [ * 544 ] 
 riage. And that being the meaning of the word ' settled,' 
 I hold it to be an established rule, . . . that when, after a life 
 estate is either given or reserved to the father upon the occasion 
 of a marriage, there is a contract to make a settlement of real 
 estate upon the issue of the marriage, that must be effected by 
 giving successive estates tail to the childi-en of the marriage. . . . 
 The reason . . . isthis— that the rule which the Court of Chancery 
 has laid down for itself is, in limiting estates by way of purchase 
 to the issue of a marriage, to go as near as possible to that line of 
 devolution of the property which would have taken place if the 
 father in the first instance had remained the proprietor of an 
 estate tail. In that case the estate would have gone first to the 
 sons in succession, and then to the daughters as heirs of tail to- 
 gether. And while the .Court of Chancery secures to the children 
 estates by way of purchase, which cannot be defeated by the 
 parent, it preserves at the same time the line of devolution, cy- 
 pres, as near as possible to that line which would have been fol- 
 lowed if the father had taken first an estate tail." 
 
 " Issue, their heirs and assigns for ever.'' — The same construc- 
 tion was placed on " issue, their heirs and assigns for ever " by 
 Kindersley, V. C, in Phillips v. James, 2 Dr. & Sm. 404, on the 
 ground that if the words " their heirs and assigns " had been 
 omitted there would have been enough to give estates tail to the 
 children as purchasers, and that the addition of the words " their 
 heirs and assigns for ever" could make no difference. This 
 decision was affirmed on appeal, 3 De G. Jo. & S. 72, contrary to 
 the opinion of Knight-Bruce, L. J. 
 
 Form of gift over.— In Dillon v. Blake, 10 Ir. Ch. R. 24, by a 
 post-nuptial agreement for valuable consideraton, land was to be 
 settled upon B., eldest son of A., "and his issue," with remainder, 
 in the event of B. dying in the lifetime of A. without lawful 
 issue, "to each of the' said sons of A. in succession according to 
 their seniority," with an ultimate remainder to right heirs of A. 
 B. survived A. and had issue. Held, thatB. was entitled 
 to an estate tail in possession * with remainder to him- [ * 545 ] 
 self in fee, the deci-iion turning on the form of the gift 
 over on B.'s death. 
 
 Exception. — In Thompson v. Simpson, 1 Dru. & War. 459, 
 where there was a covenant to settle land on trust " for the issue 
 of H. by N.," in such shares as H. should appoint, and in default 
 
 489
 
 * 546 "HEIRS OF THE BODY." 
 
 as N., in case she survived H., should appoint, it was held that 
 in default of appointment the children took as tenants in common 
 in fee simple. 
 
 Observation. — ^^ Heirs of tlie body,''' following limitation to 
 "/ifi/y-s male of the body.'' — The words "heirs of the body" are 
 flexible, and may be inserted after a limitation to " heirs male of 
 the body," not for the purpose of providing for the daughters of 
 the settlor, but for letting in the daughters of his sons, by giving 
 estates in tail general to the sons. 
 
 This construction will be aided if the articles make provision 
 for the settlor's daughters by way of portions. It prevailed in 
 Powell V. Price, 2 P. Wms. 535, where the provisions for the 
 children were to the use of the sons of the marriage " in tail male 
 successively, remainder to the heirs male of the body '" of the set- 
 tlor by any wife, remainder to " the heirs of his body " by the in- 
 tended wife, and for want of such isswe remainder to the right 
 heirs of the settlor; it was provided that if the settlor should die 
 without issue male by his intended wife, and there should be 
 daughters, portions should be raised for such daughters." See 
 the remarks on this case in Maguire v. Scully, 2 Hog., at p. 138; 
 S. C, Beatt. 370. 
 
 ^^ Issue, whether son or daughter.^' — The words "issue, whether 
 son or daughter, if begotten on the body of, &c.," were held to 
 make them take as tenants in common (apparently in fee), with 
 cross limitations over on the death of any child under twenty-one, 
 and without issue; Taggart v. Taggart, 1 Sch. & Lef. 84. 
 
 " Cliild or children of the marriage." — As to the con- 
 [ *546 ] struction of "child or children" of the * said intended 
 marriage ; see Rossiter v. Rossiter, 9 Ir. Jur. N. S. 373, 
 reversing 14 Ir. Ch. R. 247. 
 
 " Nearest relative in male line.'" — " Nearest relative in the male 
 line;" Woolmer v. Barrows, 1 Sim. at p. 529. 
 
 Miscellaneous. 
 
 Agreement by husband in marriage articles to convey lands in 
 trust for himself for life, and, if the intended wife survived him, 
 to her use and that of their child or children; if no child, to the 
 use of the intended wife and her heirs; held that the settlement 
 ouo-ht to give the intended wife a life estate, with remainder to 
 the children of the marriage; Rossiter v. Rossiter, 14 Ir. Ch. R. 
 247; reversed 9 Ir. Jur. N. S. 373. 
 
 Trustees to preserve. — Formerly, where the Court decreed a 
 strict settlement, it inserted proper limitations to trustees to pre- 
 serve contingent remainders; Stamford v. Hobart, 3 Bro. P. C. 
 490
 
 CUATTELS BY REFERENCE TO REALTY. * 547 
 
 Ed. Tom. 31; Baskerville v. Baskeri-ille, 2 Atk. 279; Harrison v. 
 Naylor, 2 Cox. Rep. 247; S. C, 3 Bro. C. C. 108; Woolmore v. 
 Bun-ows, 1 Sim. 512, and this might still be necessary ia some 
 cases. 
 
 Life Estates. 
 
 Impeachment for waste. — The question whether life estates 
 limited in pursuauce of an executory trust are to be made im-- 
 peachable for waste is discussed ia Leonard v. Sussex, 2 Vern. 
 526; White v. Brigys, 15 Sim. 17, 2 Ph. 583; Davenport v. Daven- 
 port, 1 H. & M. 775; Stanley v. Coulthurst, L. E. 10 Eq. 259; and 
 West V. Holmesdale, L. li. 4 H. L. 543. The principle appears 
 to be that if the settlor or testator has expressly directed a life 
 estate to be given, it must be made liable to impeachment for 
 waste; but, on the other hand, if the words used would per se 
 give the first taker an estate of inheritance, the life estate to 
 which it is cut down is not to be made impeachable for waste; 
 see 3 Dav. Conv. p. 280, note (c). 
 
 Life estate without p)oicer of anticipation. — In Clive v. Clive, 20 
 W. K. 477, where, by the articles, a life estate was given to a 
 woman without power of anticipation, it was held that 
 it should not be sans waste, *as a life estate saus waste [*547 ] 
 would be inconsistent with a life estate without power 
 of anticipation. 
 
 Covenant to settle chattels by reference to limitations of re- 
 alty. 
 
 Rule 197. — Covenant to settle chattels by reference to strict 
 settlement of realty. — If freeholds be settled in strict settlement, 
 and there be a covenant to settle chattels on like trusts, a proviso 
 must be inserted that they shall not vest absolutely in any tenant 
 in tail by purchase who dies under the age of twenty-one with- 
 out leaving issue. 
 
 Jekyll, M. R., considered that the proper plan was to insert a 
 gift over on the death of the tenant in tail under twenty-one; 
 Stanley v. Leigh, 2 P. Wms. 090. Lord Hardwicke, C, suggested 
 that it should ])e on his death without issue before twenty-one; 
 Goiver v. Grosvenor, Barn. Ch. R(^p. 63; S.C, 5 Mad. 348; and 
 Lord Loughborough, C, made an express decision to this effect 
 in Neivcasfle v. Lincoln, 3 Ves. 387, but before the appeal to the 
 House of Lords (12 Ves. 218), the first tenant in tail hud at- 
 tained th(i age of twenty-one, and therefore the only jwint de- 
 cided was that he had become aljsolutely entitled. \. collection 
 of forms used by eminent conveyancers will be found in West v. 
 
 491
 
 * 548 PERSONALTY. 
 
 Holmesdale, L. R. 5 H. L. C. 93, note, from which it appears 
 that the form making a gift over on death under twenty-one with- 
 out issue had been adopted by the Court. 
 
 Personalty. 
 
 Articles and ivills distinguished. — It is difficult to lay down any 
 rule for the construction of articles for the settlement of person- 
 alty. The cases of settlements directed by wills throw but little 
 light on the construction of marriage articles, because, in the 
 former case, there is nothing to guide us except the words of the 
 will; while in the latter case we must remember that the parties 
 must probably have intended to provide for the wife and issue of 
 
 the marriage. 
 [ * 548 ] * Restraint on anticipation. — If the articles expressly 
 provide for the settlement of the wife's property on her 
 for life " for her separate use," the Court will not add a restraint 
 on anticipation, but will leave the parties to their remedy by a 
 suit to rectify; Symonds v. Wilkes, 13 W. R. 1026, reversing 
 S,C., 12 W. R. 541; but if separate use is left to implication the 
 restraint on anticipation will be inserted; Stanley v. Jackman, 23 
 Beav. 450; possibly the real distinction between these cases is 
 that in Symonds v. Wilkes the articles were not strictly speaking 
 executory; and see Re DunnilVs Trusts, Ir. R. 6 Eq. 322 (a will 
 case). 
 
 Children take as tenants in common. — It appears that the Court 
 inclines to make children take as tenants in common rjither than 
 as joint tenants; Mayn v. Mayn, L. R. 5 Eq. 150; Liddard v. Lid- 
 dard, 28 Beav. 266; but see Re Bellasis' Trust, L. R. 12 Eq. 
 218. 
 
 At twenty -one, or in case of daughter's marriage. — Where mar- 
 riage articles provided for the -wife's property being vested in 
 trustees, " the trusts of the income being for the benefit of the 
 said husband and toife during their lives, and the trusts of the 
 capital being for and amongst the children according to the ap- 
 pointment of the said husband and tvife, or the survivor of them; 
 and in default of appointment, for the childi'en equally; and in 
 the event of there being no children, and of the said husband 
 being the survivor, the trust property to be at his absolute dis 
 posal;" held, that the articles ought to be carried into effect by 
 giving the wife the first life interest to her separate use, and by 
 making the shares of sons contingent on their attaining twenty- 
 one, and of daughters on their attaining twenty-one or marrying, 
 or by inserting clauses of survivorship and accruei', on the deaths 
 of sons under twenty-one, and of daughters under that age un- 
 married; Cogan v. Duffield, 2 Ch. D. 44. 
 
 Hotchpot.— A hotchpot clause will not be inserted without an 
 express direction to that efPect; Lees v. Lees, Ir. R. 5 Eq. 549. 
 492
 
 "issue'' iMEANING CHILDREN. * 550 
 
 Trusts in default of children. — Where a fund of personalty was 
 given by deed, apparently voluntary, by a man to his daughter 
 to be settled '' upon her and her issue," so that " the 
 same * might not be liable or subject to the debts, con- [ * 549 ] 
 trol, or engagements of any hiasband " whom she might 
 marry during her lifetime, held, that the settlement ought to give 
 the daughter a power of appointment by will in default of issue; 
 Stanley v. Jadanan, 23 Beav. 450; but see Re Bellasis' Trust, L. 
 R. 12 Eq. 218. 
 
 The case of By am v. Bijam, 19 Beav. 58, is so special in the 
 facts that it is not worth stating in this place. 
 
 Ultimate tinists. — In Kentish v. Neivman, 1 P. Wms. 234, the 
 covenant was to invest a sum of money in the purchase of an 
 annuity to be settled on the husband and wife for their lives, re- 
 mainder to the heirs of their bodies, remainder to the husband in 
 fee, and until the settlement should be made, the money was to 
 be applied for the separate use of the wife; if no settlement were 
 made during the joint lives of the husband and wife, the money 
 was to be to the sole use of the wife, if living, but if she died 
 before her husband, to her brorher and sister. It was held that 
 the brother and sister of the wife took only if she predeceased her 
 husband without leaving issue. 
 
 A father, on his daughter's marriage, agreed by a memorandum 
 in writing " to charge his property with £1000 as her fortune, to 
 be vested in trustees for her benefit, she to receive the interest at 
 5 per cent, on her sole and separate receipt during the term of 
 her natural life; but if she has a family, she is to have the power 
 of disposing of it amongst her children in such shares and pro- 
 portions as she and her husband may think proper; the father to 
 have the power to lodge the £1000, with her consent and that of 
 her trustee, in any security they might agree upon." No set- 
 tlement was ever executed, and the wife died without issue. Held, 
 that the husband, as his wife's administrator, was entitled to the 
 £1000 and to specific performance against the father, notwith- 
 standing the contention of the father that there was a resulting 
 trust for him; Dennehy v. Delany, Ir. R. 10 Eq. 377. See ante, 
 p. 294. 
 
 Rule 198. — " Issue,^^ meaning ^'children.'''' — AVhether 
 the subject of the articles * be realty or personalty, the [ * 550 ] 
 word " issue " may bo explained to moan " children." 
 See ante, Rule 128, p. 320. 
 
 Examples.— By articles made for value after marriage it was 
 agreed that leases for lives and years should be conveyed to 
 trustees, in trust for A. and B. successively for life, and after the 
 death of B. for the " issue" of B. and C. (his wife) as B. should 
 
 493
 
 * 551 "issue" meaning children. 
 
 appoint, and in default for "such children" share and share 
 alike, and in default of " such issue," for the heirs, executors, and 
 administrators of the said B. during the said leases; and that a 
 sum of money, or the lands agreed to be purchased therewith 
 should go (after the death of B. and C. ) to "the issue" of the 
 said B. and C. as B. and C. or the survivor should appoint, and 
 in default- should be equally divided among " such children " 
 share and share alike, and if there should be no." issue " of the 
 said marriage, or if all "such issue" should die under tvpenty- 
 one, over; held, that "issue" must be read "children;" Camp- 
 bell v. Sandys, 1 Sch. & Lef. 281. 
 
 By marriage articles a reversionary interest in personalty was 
 agreed to be settled on the husband and wife successively for life, 
 and after the death of the survivor on the " issue of the mar- 
 riage " living at the death of the survivor of the husband and 
 wife as the husband should appoint, and in default of appoint- 
 ment then on "such issue" in equal shares if more than one, and 
 if but one, then the whole go to "such only child; " and if there 
 should be no "issue of the marriage" living at the death of the 
 survivor of the husband and wife, then as the husband should 
 appoint; held, that " issue " meant "chikh-en;" SiHft \. Siciff, 
 8 Sim. 168. 
 
 Articles on marriage to settle freeholds, iafter the death of the 
 husband, " to go to and be vested in the issue of " the husband 
 and wife, " and that-such issue should also be entitled to a fiirther 
 sum of £1,000 " (to be charged on other property) " in such shares 
 and proportions as" the husband should appoint; in 
 [* 551 J default, as the wife * should appoint; and in default, 
 " in equal shares if there should be more than one of 
 such issue born in the said (husband's) lifetime, or in a reason- 
 able time after his death; held, that " issue " meant "children;" 
 Thompson v. Simpson, 1 Dr. & War. 459. 
 
 By marriage articles it was agreed that the trustees of a money 
 fund, after the decease of the husband, should pay the residue 
 of the interest and also the principal sum (subject to an annuity 
 byway of jointure for the wife) to the "issue of the said in- 
 tended marriage," as the husband should appoint; and in default 
 of appointment, to "all the issue" in equal shares "t© such of 
 the said issue " as should be sons, at twenty-one, and to such of 
 them as should be daughters, at twenty-one or marriage; and 
 that there should be a power of advancement for "the said issue 
 of the marriage" to the extent of one-half of the share of " such 
 child respectively;" and if there should be "no issue of the in- 
 tended marriage, or all such issue should die in the lifetime of " 
 the husband, then the whole trust fund should (subject to the 
 jointure) vest and be assigned, and go to the husband, his heirs, 
 executors, &c., absolutely, for his and their sole use and benefit. 
 And it was further agreed that a regular deed of settlement should 
 494
 
 POWER OF APl'OINTMENT RESTRICTED TO CJIILDREN. * 552 
 
 be executed, which should contain the several clauses and cove- 
 nants in such cases usual and proper; held, that the word " issue " 
 was to be read '"children;" Roche v. Roche, 2 Jo. & Lat. oGl. 
 
 Power to cq)poiut to " intiue,'' — In Bell v. Bell, 13 Ir. Ch. R. 
 517, a power of appointment in favour of issue, was on the con- 
 text explained to mean a power to appoint life estates only to the 
 children alive at the date of the deed, with remainders to their 
 issue in sti'ict settlement. 
 
 By marriage articles it was agreed that personalty should be 
 settled upon trust (after the death of the husband and wife) for 
 "the issue of the intended marriage " as the husband should ap- 
 point, " but if only one child," for " such only child." There was 
 no trust for the children in default of appointment. It 
 was held (p. 558) that * "issue " must be construed [ * 552 J 
 "immediate issue, or children;" Lees v. Lees, Ir. K. 5 
 Eq. 549. See Kule 142, ante, p. 363, as to the implication of a 
 gift in default of appointment. 
 
 General power of appointment cut doicn to j^oicer to ajypoint 
 among children. — Where, according to the terms of the articles, 
 the husband was to have a general power of appointment, and in 
 default of appointment the trust fund was to be divided among 
 "the issue of the marriage," it was held, first, that the power in- 
 tended must, from the circumstances and purpose of the instru- 
 ment, be taken to be only a limited power to appoint to "issue 
 of the marrage," and, secondly, that "issue of maiTiage" was to be 
 construed " children:" SrisfoR" v. Warde, 2 Ves. Jun. 336. Lord 
 St. Leonards observes (Sugd. Pow. 8th ed. 439) that this case 
 must not be considered as establishing a general rule; and 
 see Chance on Powers, Ch. 5, sec. 2, p. 143; Gould v. Gould, 
 25 L. J. N. S. Ch. 642; S. C, 2 Jur. N. S. 484. The latter 
 case, however, was on a settlement executed; see Farwell on 
 Powers, 78 et seq., where the distinction is pointed out between 
 executed and executory instruments as to the construction cut- 
 ting down a power of appointment which is in its terms general. 
 And in Wood v. Wood, L. R. 10 Eq. 220, Lord Romilly, M. R., 
 refused to follow Qoiild v. Gould, in construing an executed 
 settlement. His Lordship said: — " The general principle is that 
 a general power of appointment cannot be cut down to a limited 
 power of appointment among children, except by express words;" 
 and he held that " on the general scope of the deed " before him 
 the general power could not be cut down. 
 
 As to the poirers to be inserted (e). 
 
 Probably the powers to be inserted in the settlement would be 
 the same whether the instrument directing the settlement to be 
 
 (e) See 1 Chance on Pow., ch. 3, s. (i, p. i)."). 
 
 495
 
 * 554 POWERS TO BE INSERTED. 
 
 made is a will, marriage articles, or other instrument. It was 
 formerly considered that no powers ought to be inserted 
 [ * 553 ] in the settlement, unless they were * expressly authorized 
 by the instrument directing the settlement to be made; 
 see Wheats v. Hall, 17 Ves. 80; Breivster v. Angell, 1 J. & W. 
 625. There is a palpable difference (seeper Shadwell, V.-C , Hill 
 V. Hill, 6 Sim. at p. 144) between powers of management, such 
 as powers of leasing or of sale, which are to be, exercised for the 
 benefit of the estate, and powers of charging the estate, such as 
 powers of jointuring, and of charging portions. According to 
 the modern practice, powers of the former class will generally be 
 inserted in the settlement (unless they are omitted in reliance 
 on the Settled Land Act, 1882), while powers of the latter class 
 will not. 
 
 Maintenance, education, and advancement (/). — Powers of 
 maintenance, education, and advancement, which appear not to 
 fall under either class mentioned in the preceding paragraph, 
 were dii'ected to be inserted in the settlement in Turner v. Sar- 
 gent, 17 Beav. 515, where by codicil the testator directed as fol- 
 lows: — •'! further direct that all the property, real or personal, 
 given in my said will to my daughter J., shall be so settled, to 
 the exclusion of her present or any future husband, that the same 
 may belong to my said daughter during her life, and be secured 
 for the benefit of her children, if more than one, equally, after 
 her death, so that the issue of any such child dying in my daugh- 
 ter's lifetime may take his or her parent's share." 
 
 New trustees. — Power to appoint new trustees was inserted in 
 Sampayo v. Gould, 12 Sim. 426, where the contract of marriage 
 was drawn up in the Portuguese language and executed accord- 
 ing to the law of Portugal where the parties were residing, and 
 contained a statement that the parties wished that it should be 
 regulated, made binding, and carried into full and complete effect 
 under the laws of England. A like power was inserted in a set- 
 tlement made in pursuance of the directions contained in a will; 
 Turner v. Sargent, 17 Beav. 515; Lindoiv v. Fleetivood, 6 Sim. 
 
 152. 
 [ * 554 ] * Potcer to vary securities. — A power to vary securities 
 was inserted in Sanqjayo v. Gould, 12 Sim. 426. 
 
 Powers of leasing, sale, exchange, &c. — In Hill v. Hill, 6 Sim. 
 136, the V.-C. 'was of opinion that a direction to settle authorized 
 the insertion of {inter alia) "powers of leasing, of sale and ex- 
 change, and where there is any joint property or there are any 
 mines, or any land fit for building purposes, powers of partition, 
 of leasing mines, and of granting building leases," such powers 
 being beneficial to all parties. But where the articles stipulated 
 for a power to lease for twenty-one years, and all other usual 
 
 (/) The powers of maintenance and education may in most cases be omit^ 
 ted, in reliance on the Conv. Act, 1881, ss. 42, 43. 
 496
 
 POWERS TO BE INSERTED. * 555 
 
 powers, it was hold that the insertion of a power to grant build- 
 inor leases for a longer term was not authorized; Pearse v. Baron, 
 Ja". 158. 
 
 'Where the articles (on a man'iage in Scotland) stipulated that 
 a settlement of estates in Ireland should contain '• all the cove- 
 nants, provisions, and conditions usually contained in marriage 
 settlements made in England," and the draft settlement con- 
 tained powers to grant building, repairing and mining leases, a 
 reference was ordered to inquire whether the proposed powers 
 were common in that part of Ireland in which the estates were 
 situated; Dtike of Bedford v. Marquess of Abercorn, 1 My. & Cr. 
 312. 
 
 Mining leases. — In a settlement of personal property, the parties 
 covenanted to settle all future-acquired property upon the same 
 trusts, &c., and subject to the same powers, &c., or as near thereto 
 as the nature and tenure of the property would admit; held, that 
 this covenant authorized the insertion in the settlement of subse- 
 quently-acquired freeholds, of a power to grant mining leases, 
 the prior owner having granted such leases, though the mines 
 had never been efFectually worked under them; Scott v. Steward, 
 27 Beav. 367. 
 
 Partition. — A power to partition may be inserted; see Hill v. 
 Hill, 6 Sim. 136. 
 
 Sale and exchange. — It was formerly thought that a power of 
 sale and exchange could not be inserted without express author- 
 ity; Wheate v. Hall, 17 Ves. 80; Home v. Barton, Jac. 437; 
 and Breicster v. Angell, 1 Jac. & W. 625, all cases of wills. 
 However, it appears now to be the rule that, whether 
 * there be a simple direction to settle ( Turner v. Sar- [ * 555 ] 
 gent, 17 iieav. 515; Wise v. Pi2yer, 13 Ch. D. 848) or a 
 direction that the settlement shall contain all usual clauses (Hill 
 v. Hill, 6 Sim. 136; Peake v. Penlington, 2 V. & B. 311; Duke of 
 Bedford v.' Marquess of Abercorn, 1 Myl. & Cr. 312); a power of 
 sale and exchange ought to be inserted. 
 
 Realty subject to same trusts as persoiialty. — In Williams v. 
 Carter, Sugd. Pow. 8th edit. Append, p. 945, and in Elton v. 
 Elton, 27 Beav. 634, where realty became, by the operation of a 
 covenant for settling after -acquired property, subject to the same 
 trusts as personalty, as to which latter there was a power to vary 
 investments, it was held that the settlement of the real estate 
 ought to contain a power of sale and exchange, such power being 
 as to realty analogous to the power to alter and vary as applied 
 to personalty. 
 
 AVhere a settlement of personalty contained a power to the 
 trustees to invest in the purchase of land to be held "upon such 
 trusts as would best correspond with the then subsisting trusts," 
 and that such purchased laud " should be considered as personal 
 estate for the purposes of the settlement," and there was no ex- 
 
 32 INTKliPltlCTATION OK DEEDS. 497
 
 * 556 POWERS TO BE INSERTED. 
 
 press power of sale over the lands so to be purchased, but there 
 was a power to vary the investments of the settled personalty; 
 held, that the trustees had a power of sale over purchased land; 
 Tali v. Lathbury, L. R. 1 Eq. 174. 
 
 Power to raise money. — Where by marriage articles the hus- 
 band covenanted to settle his estate, subject to raising by any 
 wavs or means that he should think proper the sum of £15,000 
 by mortgage or otherwise; held, that he might, raise the £15,000 
 by sale;''Tasfcer v. Small, 6 Sim. 625; S. C, 3 Myl. & Cr. 63. 
 
 Power to give receipts (g). — Where a power of sale is given to 
 the trustees, a power to give receipts would formerly also be given 
 to them; Turner v. Sargent, 17 Beav. 515. But where on the 
 construction of a will a power of sale by the tenant for 
 [ * 556 ] life was to be inserted in the settlement, he was not * al- 
 lowed a power to give receipts; Cox v. Cox, 1 K. & J. 
 
 251. 
 
 Powers to portion or jointure — Powers to raise portions; Hig- 
 genson v. Barneby, 2 S. & S. 516; Grier v. Grier, L. R. 5 H. L. 
 688; to jointure; Duke of Bedford v. Marquess of Abercorn, 1 
 My & Cr. 312; were not allowed to be inserted in the absence of 
 special directions. But in Sackville-West v. Holmesdale, L. R. 4 
 H. L. 543, under special circumstances the insertion of these 
 powers was authorized. 
 
 Expressio unius, &c. — It was once thought that the doctrine of 
 expressio unius est exclusio alterius was applicable in determin- 
 ino- what powers should be inserted, and that if the executory in- 
 strument expressly directed the insertion of specified powers, the 
 words "usual powers" coming afterwards would only authorize 
 the insertion of such usual powers as were ejusdem generis with 
 those specially authorized; Pearse v. Baron, Jac. 158; Hill v. 
 Hill, 6 Sim. 141; or even that they would not authorize the in- 
 sertion of any other powers; Brewster v. Angell, 1 J. & W. 625; 
 Home V. Barton, Jac. 437; unless the words were in a distinct 
 clause; Lindow v. Fleetwood, 6 Sim. 152. But it is probable 
 that the doctrine would not now be followed. 
 
 Aliens (h). — In Master v. De Croismar, 11 Beav. 184, where 
 the husband and some of the children were aliens, it was held 
 that realty, becoming by virtiie of a covenant to settle after-ac- 
 quired property subject to trusts similar to those of personalty, 
 must be sold. 
 
 {g) The power to trustees to give receipts can now be omitted, in reliance 
 on the Conv. Act. 1881, s. 36. 
 
 {h) An alien can now acquire, hold and dispose of land in the same man- 
 ner in all respects as a natural born British subject. The Naturalization 
 Act, 1870, 33 & 34 Vict. c. 14, s. 2. 
 
 498
 
 GLOSSARY. 
 
 358 
 
 *CHAPTER XXXIII. [*557] 
 
 GLOSSARY (a). 
 
 Abatement. — See Deforcement. 
 
 * Acre.— See Measures of Land. — Land may pass by [ * 558 ] 
 the words " a certain number of acres of land," and be- 
 fore 5 Geo. 4, c. 74, a jury might determine whether customary 
 
 (a) Tlie purpose of the authors in this Chapter has been rather to indicate 
 sources from which further information may })e derived than to write 
 a treatise on the various matters comprised in it: and tiiey have accordingly, 
 in most cases confined themselves to citations from, and references to, the 
 aiith'irities, and have made no attemi)t to discuss moot points. 
 
 Aiifhoritiffi to ((ncicnt terms. — On the meaning of many ancient terras re- 
 lating to land and its tenure, and tlie ancient courts and jarisdictious, the 
 following authorities may be mentioned: — 
 
 Bacon. Abridgment: Britton (Ed. Nichols, 1805, with the Glossary); 
 Bracton: Brooke. Abridgment; Chitty on the Prerogative of the Crown; 
 Comvns. Digest: Cruise, Digest: Digby, History of the Law of Keal Property; 
 Dncange. Glossary; Ellis. Introduction to Domesday; Elton, Tenures of Kent; 
 EvtoUj^Kev to Domesday; Fleta; Glanville; Hale, Domesday of St. Paul's 
 (Canulen Soc). and Register of Worcester Priory (Camden Soc. ); Madox, 
 History of the Exchequer, and Firma Burgi; Maine, "Village Cimimunities 
 and Earlv Law and Custom; Manwood. Forest Laws; Morgan, England un- 
 der Norman Occupation; Nasse, Agricultural Community of the Middle Ages 
 (translated bv Col. Ouvry for the Cobdcn Club); Nelson, Lex Maneriorum; 
 Reeves, History of English Law; Spelman, Glos.sary; Stubbs' Constitutional 
 History, and Select Charters with Glossary; Termes de La Ley. 
 
 Lixt'of ivords in Co. LiU. l (i, rt scry. —In Co. Lit. 4 a. to 5 b. (inclusive) is 
 given a list of words occurring in old deeds, with explanations: as they 
 have never been indexed we give here an alphabetical listofthem: Alnetum, 
 Aqua, Arundinetum. Bercaria, Ber(|uarium, Brnera, Bye. Clough, Coieberti, 
 Combe, Cope, Dcna, Dene. Deime. Drenchs, Drofden, Dm, Druden, Druf, 
 Drufden, Duna. Dnnum, lOy, Falesia. Fermeholt, Filicetiim, Flelh, Fras- 
 setura, Fraxinetum, Frustum, Frythe. Fundus, (iirdland, (ilyn, Grava, Haga, 
 Haugh, Hirst, Tbdnie, Holt, Hoo, Hope, Howe,'Howgh, Hulmus, Hurst, Ing, 
 Jampn-i, .Lmcaria, .rnncaria. Knol, Lacerta, Lactarinm. Lactitinm, I.anne- 
 manni, I^aw, Lawe. Lawnd. Lea. Ley. Leswes, Lesues. Lenga, I,e\vad, Lewe. 
 Lewed. Lonnd. Liipnlicetuni, Man'ttMm, Mari.scus, .Mesinl. Mesuil, Mora, 
 Pen, I'oicaria. Radchemistres, Radinan, Koncaria. Ros, K'nncaria, R'uscaria, 
 Salieetiim. .Saliva, Sawcee. Selda. Senticetum. Shaw, Sodienum, Sokemanni, 
 Solinum or Solinns. Stadium, St:ignu7u, Stanlawe, Slede, Stethc. Stowe, 
 Siillerye. Snllings, Tacke. Taini, Tainland. Thainns regis. Twaite. Vaccaria, 
 Varectum. Vervactum, Warectuin, VVareccum. Wic. Wike, Worth.
 
 * 559 GLOSSARY. 
 
 or statute acres were meant; Waddy v. Newton, 8 Mod. 275; 47 
 Ed. 3, 18, pi. 35. 
 
 It is not clear whether a contract for the sale of land by the 
 customary acre is affected by 41 & 42 Vict. c. 49, s. 19, or by the 
 repealed Act of 5 Geo. 4, c. 74; but it is probable that such a 
 contract is not unlawful; Giles v. Jones, 11 Ex. 393; though, if 
 the word "acres" is used alone, it must mean statute acres, ac- 
 cording to Rule 13, ante, p. 65; G'Donnell v. O^Donnell, 1 L, R. 
 Ir. 284; but consider Portnian v. Mill, 2 Russ. 570. 
 
 As to the connection of an acre with the quantity of land that 
 can be ploughed with a team in a day, see Seebohm, Eng. Vill. 
 Comm. 124; Ducange, s. v. Diurnalis; Spelm. Gloss, s. v. Jor- 
 nale, or Jurnale, Juchus. It must be remembered that the ox 
 team in England has generally consisted of eight oxen, while in 
 the south of Europe it has generally consisted of a pair (yoke) 
 of oxen. 
 
 Advantag'e. — " Commodities, emoluments, profits, and ad- 
 vantages . . . . all of which four w^ords are of one sense and 
 nature, implying things gainful;" London v. Southivell, Hob. at 
 p. 304. 
 
 Advowson, Advocation. — The right of presentation or col- 
 lation to a church; Co. Litt. 119 b; see Co. Litt. 17 b; Spelm. 
 Gloss, c. V. Advocatus ; 1 Burn's Eccles. Law, tit. Advoicson. 
 
 The advowson of a church in T. passes by the words " here- 
 ditaments situate, &c., in T. ; " Dj. 323 b; pi. 30. An advowson 
 may pass by the words " lands and tenements," 33 Ed. 3, cited 
 London v. Southivell, Hob. at 304 (we have been unable to verify 
 the reference) ; " Ecclesia,^' Co. Litt. 17 b; Rex v. Bishop of No7''- 
 wich, 1 Roll. Rep. at p. 237. As to what words pass it in a dne, 
 see Shep. Touch. 12. 
 
 An advowson may be appendant to a manor, or reputed manor; 
 Long v. Hemmings or Heming, 1 Leon. 207; S. C, Sav. 103; Cro. 
 El. 209; Eveleigh v. Turner, Dy. 299 a, pi. 52, or to an honour; 
 De Courtenay v. Lucy, 12 Ed. III., at p. 32 (RecPub.), 
 [ * 559 ] * but it is more properly appendant to the demesnes of 
 the manor, and not to the rents or services; Co. Litt. 
 122 a. In this ease it will pass by a conveyance of the manor, 
 reputed manor, or demesnes alone, even without the words " with 
 the appurtenances; "' Whistler^s Case, 10 Rep. 63 a. See Bedle 
 y. Beard, 12 Rep. 4; HamHngton''s Case, Dy. 70 b, pi. 41, note; 
 Baivell & Lucas' Case, 2 Leon. 221. See as to the effect of a 
 charter of feofi'ment of the manor granting the advowson sepa- 
 rately, Dy. 48 b, pi. 3. 
 
 An advowson may also be appendant to a tenement; 32 Ed. 1, 
 89 (this reference is given in Viner, Ab., but we are unable to 
 verify it); or to an acre; 18 Ed. 3, 52; 39 Ed. 3, 36 b, and see 
 500
 
 GLOSSARY. * 560 
 
 other cases as to an advowson being appendant, collected in 2 
 Viner, Ab., "Appendant." Where an advowson appendant to a 
 manor was sold for a term of years created in the manor and 
 advowson, which ceased as to the manor, the advowson, i. e., the 
 reversion of the advowson, passed by a subsequent conveyance of 
 the manor with general words; Rooper v. Harrison. 2 K. & J. 86. 
 
 As to grants of advowsons by the crown, see Stat, de Preroga- 
 tiva, 17 Ed. 2, Stat. 1, c. 15; Co. Litt. 121 b, note 2; Holdsworth 
 V. Fairfax, 3 CI. & Fin. 115; S. C, 8 Bing. N. S. 882; Att.-Oen. 
 V. Eivelme Hospital, 17 Beav. 360, and some of the cases cited 
 above. 
 
 As to the difFerence between the advowson of half the church 
 and half the advowson of the church, see Co. Litt. 17 b, 18 a; 
 Windsor Y. Canterbury, Cro. El. 687; S. C, sub nam. Witidsor^s 
 Case. 5 Rep. 102. ^ 
 
 Ager. — An acre, a hide; Spelm. Gloss, s. v.; Seebohm says 
 (Eng. Vill. Comm. p. 167) that ager, agellus, or agellulus, was 
 the word used by the ecclesiastical writers in the charters for the 
 land belonging to a " ham." 
 
 Allodium. — " In the law of England we have not, properly, 
 allodium, that is, any subject's land that is not, as it is, i. e., ac- 
 cording to the present law holden, unless you will take 
 allodium for ex solido, as * it is often taken in the book [ * 560 ] 
 of Domesday; and tenants in fee simple are there called 
 alodarii or aloarii; " Co. Litt. 1 b; see also 5 a, and Spelm. Gloss, 
 s. v. Aloarius. Ellis, Introd. Domesd., Vol. L, pp. 54, 55. 
 
 Altaragium. — Properly that which is offered on the altar, and 
 the protit which arises to the priest by reason of the altar; 
 Spelm. Gloss. It is sometimes said to include all vicarial or 
 small tithes; but this construction will not be adopted unless the 
 word occurs in an old endowment, and is supported by usage; 
 Frayiklyn v. St. Cross, Bunb. at p. 79. 
 
 Amerciament. — Explained and distinguished from a fine; 
 Beecher's Case, 8 Rep. 58 a; Godfrey^ s Case, 11 Rep. 42 a; Co. 
 Litt. 126 b, et seq. : where the Latin for Amerciament is said to 
 be misericordia ; Spelm. (Gloss, s. yv. Amerciamentum, Miseri 
 cordia) gives an explanation differing from that of Coke. The 
 reason why an unsuccessful defendant was said in old time "to 
 be in mercy, &c.," was that he was liable to be amerced for not 
 having obeyed the King'.s writ immediately; see the references to 
 Coke, supra. 
 
 See also as to Amerciament and Misericordia, 1 Madox, Exch. 
 526, Mad. Firma Burgi, 80, note (e); Nelson, Lex Maneriorum; 
 
 501
 
 *561 GLOSSARY. 
 
 ScriveB on Copyholds; Baldwin v. Tiidge, 2 Wils. 20, cited posi, 
 Manor, note (a); and Reeves' Hist. English Law, ed. Finlason, 
 vol. i. p. 280. 
 
 Ancient Demesne.— See Madox, Firma Bmgi, 5; Y. B. 8 Ed. 
 2, 265; 9 Ed. 3, 18, pi. 2; Doe d. Rust v. Roe, 2 Burr. 1046; 
 Challis on Real Prop. c. 5, citing 2nd Instit. 542; 4th Instit. 269; 
 Coke, Compleat Copyholder; Hob. 188, Hunt y., Burn, 1 Salk. 57; 
 Abbot of Strata Mercella'' s Case, 9 Rep. at 31 a; Nelson, Lex 
 Maneriorum ; Burton, Comp. s. 1031; Scriven on Copyholds; 
 Hale, Hist. Com. Law, 112 et seq. 
 
 Annats, or Annates. — The first fruits of an ecclesiastical 
 benefice; see 25 H. 8, c. 20; 26 H. 8, c. 3; 12 Rep. 45; Spelm. 
 Gloss, s. V. Annatce. ^ 
 
 [ *561 ] * Appropriation. — ^The annexing of an ecclesiastical 
 benefice to the proper and perpetual use of a spiritual 
 corporation or college. See the cases collected in 3 Viner, Ab. 
 33 et seq.; Britton v. Wade, Cro. Jac. 515; Grendon v. Bp. of 
 Lincoln, Plowd. 493; S. C, Bendl. 293; Wright v. Gerrard, Hob. 
 306 It does not pass by the word Advowson; London v. South- 
 well Hob. at 304. See Phillimore, Eccl, Law, 272. 
 
 Approvement.-- — Where a man has common in the lord's 
 waste, and the lord encloses part of the waste for himself, leaving 
 sufficient common for the commoners. See this fully discussed 
 in Williams on Commons, p. 103 et seq. ; Hall on Profits a Pren- 
 dre, ch. xxiii., pp. 344 et seq. See also 5 Viner, Common, Z. Aa; 
 3 Cruise, Dig. 76; Shelf ord, Real P. Statutes, 49. 
 
 Assart. — Grubbing woods in a man's own lands in a forest, so 
 as to make the same arable. See Manwood, c. 9, s. 1, cited in 
 Williams on Commons, 231. Terra assarta is also used for land 
 recently reclaimed out of the lord's waste; see the Hundred Rolls, 
 cited Seebohm, Eng. Yill. Comm. p. 34; Spelm. Gloss, s. v. Es- 
 sartum; 4th Instit. 306, 307. 
 
 In the manor of Rotherfield, the descent of assart lands is dif- 
 ferent from that of the other copyholds; and in the manor of 
 Bosham, assarts are called "Forrep" lands; 6 Sussex Archseol. 
 Collections, 176. 
 
 Aumone.— Tenure by divine service as distinguished from 
 fraiikalmoigne; Co. Litt. 96 b, 97 a; see 2nd Instit. 460; Britton, 
 164; Cowell, Law Diet. 
 
 Average. — Avera, averice, averii, affri; beasts of burden, oxen, 
 farm horses; Averagium, the work done by them; particularly 
 502
 
 GLOSSARY. * 563 
 
 where it was done as a service due to the lord; Spelra. Closs. s. 
 V. Accra; 1 Ellis, Introd. Domesd. 268; Seebohm, Eng. Vill. 
 Comui. 57, *297. Averum, means revenue, effects, goods; Spelm. 
 Gloss, ubi sup.: Hale, Domesd. of St. Paul's (Camd. Sue), In- 
 trod. Ixvi. 
 
 * Balk. — The unploughed strip between two seliones; [ * 5G2 ] 
 Seebohm, Eng. Vill. Comm. 2, 20. But he also says (p. 
 3), that the seliones themselves are called balks by the country 
 folk. See also the last quotation from the Vision of Piers 
 Ploughman, at p. 19. The strips dividing the shots or furlongs 
 are also called balks; Seebohm, 4. See post, Common Fields. 
 
 There appears to be no presumption of law that the balks are 
 the property of the owners of the adjacent soil; Godmanchester 
 V. PliiUi2)s, -4 Ad. & El. at pp. 560—5(31. 
 
 Baronia. — Formerly consisted of 13^ knight's fees (not, as 
 stated in 2nd Instit. 7, of 13^ knight's fees), but afterwards it 
 was more or less. The income of a knight's fee was £20, so that 
 13?5 knight's fees gave an income of 13^ X £20= 13)5X400 shill- 
 ings =400 marks, the yearly income of a barony; Co. Litt. 69 a, 
 et seq.; Selden, Tit. Hon., 2nd Ed., part 2, c. 5, s. 26, considers 
 that a barony never consisted of a definite number of knight's 
 fees. Baronia is also sometimes used for a manor or the lands 
 comprised in it; for a house in London; for a hundred, especially 
 in Ireland. The Caput Baronice was the principal house or castle 
 on it; see Co. Litt. 31b, 69a, et seq.; Spelm. Gloss, s. v. Baro. 
 See also 3 Cruise, Dig. Tit. XXVI., Dignities, Ch. 1, ss. 30 et seq. 
 
 Beast Gate. — The same as Cattle Gate (g. v.). 
 
 Beneficium. — Used in the Civil and Canon Law for fee. Ec- 
 clesiastical Benefice " extendeth not only to Benefices of Churches 
 Parochial, but to Dignities and other Ecclesiastical Promotions, 
 as to Deaneries, Archdeaconries, Prebends, &c. And it appeareth 
 in our Books that Deaneries, Archdeaconries, Prebends, &c.. are 
 Benefices with Cure of Souls; but that they are not comprehended 
 under the name of Benefices with Cure of Souls within the sta- 
 tute of 21 H. 8, c. 13, by reason of a special proviso, which they 
 had been, if no such proviso had been added, viz.. Deans, Arch- 
 deacons, Chancellors, Treasurers, Chanters, Prebend, or a Par- 
 son, where there is a Vicar indowed;" 3rd Inst. 155. See Sjielm. 
 Gloss. 8. V. 
 
 *Benerth. — Service of the plough and cart; Co. Litt. [ * 563] 
 86a; Spelm. Gloss, s. v. ; Cowell, Law Diet. s. v. Benereth. 
 Elton (Ten. K(!nt. 34), says, " Bfin-eri/t was precarious lillage ser- 
 vice v.ith horse and cart: (javcl-erth was tillage serviro certain: 
 
 503
 
 *564 GLOSSARY. 
 
 ben-rip is a precarious service of reaping, gavel-rip was the same 
 service only certain." 
 
 Benework, or Boonwork. — See Pkecabi^. 
 
 Bercaria or Berquarilim.— A tan-house, a sheep-fold; Co. 
 Litt. 5b; 2nd Inst. 476; Spelm. Gloss, s. v.; Cowell, Law Diet. 
 s. V. (where some examples are given from old records). 
 
 Berewica or Berewit. — A town (vill); Co. Litt. llGa; a manor, 
 or rather a detached member of a manor, a town, a hamlet, a sub- 
 manor, a corn farm; Spelm. Gloss, s. v.; Cowell, Law D. s. v. 
 Berivica; see also Ellis, Introd. Domesd. Vol. L, p. 240. 
 
 Bocland or Bookland. — See Co. Litt. 6a, 58a; Spelm. Gloss. 
 s. v. Bocland; 1 Stubbs Constit. Hist. Ch, 5, 4th ed., p. 81; Ellis. 
 Introd. Domesd., Vol. I., p. 230n. 
 
 Boon. — See PRECAEiiE. 
 
 Borde; Bordarii; Borduanni. — Cottage and cottagers; Co. 
 Litt. 5b; Spelm. Gloss, s. v. Bordarii; Evton, Key Domesd. 47; 
 Elton, Ten. Kent, 106, 120; Seebohm, Eug. Vill. Comm. 77. 
 
 Bordlands.^^Lands kept by a lord in his own hands for the 
 maintenance of his table; Termes de la Ley, 100; Bract, lib. 4, 
 tr. 3, cap. 9; Spelm. Gloss, s. v. Bordarii; Du Cange, Gloss, s. v. 
 Dominicum (3); Elton, Ten. Kent, 120, note (e), gives an in- 
 stance in modern times. See post, p. 571. 
 
 BOSCIIS. — See Wood, and ante, p. 89. 
 
 Bote. — House bote; a sufficient allowance of wood to repair, or 
 of wood or gorse to burn, in the house; the latter is also called 
 Fireboot. Ploughbote and cartbote are wood to be 
 [ * 564 ] * employed in making or repairing instruments of hus- 
 bandry. Haybote or Hedgeboot is wood for repairing hedges 
 ("feai/e3")or fences. Common of Estovers is the right to cut 
 wood for these purposes in another man's land; Spelm. Gloss, s. 
 vv. Bota: Estovarium; Williams on Settlements, 230; Williams 
 on Commons, passim. It may also mean amerciament or com- 
 pensatioD, as theft bote, man bote; or freedom from the same, as 
 brigbote, castlebote, burghbote; Co. Litt. 127a; Eleta, c. 47; Spelm. 
 Gloss, s. v. Bota. 
 
 Bovate; Bovata terras; Oxgang or Oxgate. — Half a yard- 
 land. {See Common Fields.) — It is said to be as much as an ox can 
 plough; Co. Litt 5a; Spelm. Gloss, s. v. Bovata. There is a manifest 
 504
 
 GLOSSARY. * 565 
 
 absurdity in this statement; for in most parts of England, an ox 
 could not draw a plough. It appears rather to be the holding of 
 the tenant who contiibuted one ox to the manorial team of eight 
 oxen. See Seebohm, Eng. Vill. Comm. 60 et seq. ; Elton, Ten. 
 Kent, 126, 130, 131. Land may be demanded (Co. Litt. 5a), and 
 therefore conveyed by the name of a borate. 
 
 Bruera: Bruarium; Bruyrium. — A heath. Land may oe 
 demanded and therefore passed by a conveyance of Bruera; Co. 
 Litt. 5a; Spelm. Gloss, s. v. Bruarium. 
 
 Butt. — A piece of land; e. g., Register of Worcester Priory, 
 fol. 4yb (Camden Soc. ). Where a selio abruptly meets others, or 
 'abuts upon a boundary at right angles, it is sometimes called a 
 butt; Seeb. Eng. Vill. Com. 6. 
 
 Cablish. — Brushwood, or, more properly, windfalls; Spelm. 
 Gloss, s. V. Cablkcx browsewood; 4 Inst. 308. 
 
 Cantaria. — See Chauntry. 
 
 Cantred or Kantred. — Welsh for a hundred; Spelm. Gloss, 
 fi. V. Cantredus; used in 28 H. 8, c. 3, and 26 Ass. pi. 54. 
 
 Carucate or Carve. — A ploughland or hide. (See Hide, 
 Ploughlamd.) Co. Litt. 69a; Spelm. Gloss, s. v. Carua. 
 *It may contain houses, mills, pasture, meadow, wood, [ * 565 ] 
 &c., pertaining to the plough, &c. ; Co. Litt. 86b. It is 
 said (Dublin v. Blount, 21 Ed. 1,402 (Record Publ.), that " a 
 carucate of land draws to itself manor meadow wood and pasture 
 as things that are appurtenant." This seems to be an example 
 of Rule 51, ante, p. 188. Land may be demanded, Co. Litt. 5 a, 
 and therefore pass by the name Carucate. 
 
 Castle. — " Regularly every castle containeth a manor and 
 
 by the name of the castle the manor .shall pass, and by the name 
 of the manor the castle shall pass;*' 2nd Inst. 31. "By the name 
 of a castle one or more manors may be conveyed;" Co. Litt. 5a. 
 As to when the castle alone, or the castle and land attached to it 
 passes by grant of the "castle;" see Shep. Touch. 92; Mad. 
 Baron. Anglic. 17. Land may be parcel of a ca.stle either V)y es- 
 cheat where a man holds by castle guard, 5 H. 7, 9, p. 20; Bro. 
 Ab. Comprise, 18; or where it is contained in the castle. See 
 Spelm. Gloss, s. v. Castellum; and Ellis. Introd. Domesd. I., 211. 
 
 Cattlegate, also called Beastgate.- Sometimes the soil is 
 vested in the owners as tenants in common in fee; The King v. 
 Whixley, 1 T. R. 137. See also Mcllington v. (,'oodtitle, Andr. 
 
 505
 
 *566 GLOSSARY. 
 
 106, and on app. sub nom. Bennington v. Goodtitle, 2 Stra. 1084: 
 a dictum in Barnes v. Peterson, 2 Stra. 1063; The King v. Watson, 
 5 East, 480; where the beasts were turned out by such burgesses 
 as chose to do so, according to a stint by the leet jui'y. Some- 
 times it is a mere right of pasture, the soil remaining in the lord 
 of the manor; Lonsdale v. Rigg, 11 Ex. 654; on app. 1 H. & N. 
 923. See Williams on Commons, 81 et seq. ; Hall on Profits a 
 Prendre, 23 et seq. 
 
 Cell ; Oella. — A monastery appertaining to a larger. Spelm. 
 Gloss, s. V. Cella. 
 
 Chase. See Forest. — A chase differs from a forest chiefly in 
 that it is not subject to the Forest laws; Chitty, Prerog, 137. 
 
 If the King, seised of a forest, grants to another in fee; the 
 grantee has no forest, because he has not power to create 
 I * 566 J * judges or officers to hold forest courts; but he has a 
 chase; 4th Inst. 314. 
 
 By the grant by a subject of a chase in his own land, not only 
 the privilege but the land itself passes; Co. Litt. 5b. See Wil- 
 liams on Commons, 236 et seq. : Hall on Profits a Prendre, 325; 3 
 Cruise, Dig. tit. xxvii., s. 10 et seq. 
 
 A chase may bo in a warreu; 22 Ed. 1, 528 (Record Pub. ). 
 
 Chauntry ; Cantaria. — A foundation for the maintenance of 
 priests to say mass' for the souls of the founder and his relations; 
 also a chapel or altar endowed for that purpose : Adams and 
 Lamberfs Case, 4 Rep. 1046; Ducange, s. v. Cantaria; Spelm. 
 Gloss, s. V. Cantaria. In a grant by Henry 8th, to the Earl of 
 Arundel, the words ecclesia collegiata, collegium, ana cantaria, 
 are used as synonyms; see Norfolky. Arbuthnot, 4 C. P. D. at p. 302. 
 
 Chimin, Chiminage. — See Way. 
 
 Church. — A private person can have a fee simple in a building 
 constituting to the eye, and being in fact, an integral part of the 
 fabric of a parish church, whether it occupies the place usually 
 occupied by the chancel and Lady -chapel (D. of Norfolk v. Ar- 
 buthnot, 4 C. P. D. 290; S. C, 5 C. P. D.390; 30 Sussex Archa^ol. 
 Coll. 31 et seq.), or a lesser chancel or aisle; and in the latter 
 case, it may be (Churton v. Frewen, L. R. 2 Eq. 634), but is not 
 necessarily (Chapman v. Jones, L. R. 4 Ex. 273), claimed as ap- 
 purtenant to a manor or manor house. In Clmrton v. Frewen, 
 ubi sup., it was held that the lord of the manor might have the 
 exclusive use of the building, though the freehold was in the 
 rector. 
 
 Common. — See Bote; Herbage; Fishery; Pasture; Pannage; 
 Turbary. 
 
 506
 
 GLOSSARY. * 568 
 
 Common Fields. — Furlongs, Balks, Ridge or seJio. — The 
 arable hinds of a township were generally cultivated on the three- 
 fold course, i.e., in three successive seasons of tilth ^'fain, etch 
 grain, and fallow. They were generally divided into iarge par- 
 cels called furlongs, shots, or quarentense, separate. I 
 from each other by broad strips loft * untilled, generalJy [ * 567] 
 covered with bushes, called balks (in Latin, porca'). 
 The shots were subdivided into a number of parallel strips; each 
 of which was called a stiche or ridge (in Latin selio), of uncer- 
 tain dimensions, but \isually forty rods in length by four in 
 breadth, so as to make an acr.e. The stiches were .separated by 
 balks of untilled earth. In some places the word balk (and its 
 equivalent porca), were used to denote the stiche. 
 
 Headland. Gore. — Generally, access to the stiches was obtained 
 by a road running along the edge of each shot; but when this 
 was not the case, a strip at right angles to and at each end of 
 the stiches, called a headland (in Latin, forera), w-as left un- 
 ploughed till the last, so that the oxen could turn on it while 
 ploughing the other stiches. Sometimes, from the shape of the 
 field, besides the stiches, there were some plots broader at one 
 end than at the other: these were called gores, fothers, or pykes. 
 
 Virgate or yardland. — The normal holdirg of a tenant was 
 called a virgate or yardland, which consisted of a number of 
 seliones (and perhaps of gores), in the several common fields. It 
 consisted of an uncertain number of acres; Co. Litt. 69a; Nasse, 
 Agricult. Community (trans, by Ouvry), p. 9: but there is some 
 evidence to show that the normal virgate was from about thirty 
 to forty acres. (In Wimbledon it consisted of fifteen acres.) As 
 to the size of a virgate there is a source of confusion which 
 should be rememoered, namely, that the size may be estimated 
 either in statutory or in customary acres. The holder of a virgate 
 in old days appears to have contributed two oxen towards the 
 common team of eight oxen by which the common fields were 
 ploughed. A half virgate was called an oxgang or bovate, pro- 
 bably because the owner contributed one ox towards the common 
 team. 
 
 See Seebohm, passim; Fitzherbert on Surveying; Nasse, Agric. 
 Comm. ; Maine. Village Communities, Lect. III.; Morgan, Eng. 
 under Norman Occup. passim. 
 
 Conmote or Commote. — "A commote is a great seigniory, 
 and may include one or divers manors;" Co. Litt. 5a. See She;^. 
 Touch. 92; Alt. Gen \. Ret^eley, printed but not pub- 
 lished, *]870 (in Lincoln's Inn Library). It also [* 568 ] 
 equals half a cantred (which see). Spelm. Gloss, s. v. 
 Comviotum. See the Statutum Wallia% 12 Ed. 1. " It is a tract 
 of country like the hundred of a sheriff; " 22 Ed. 1, 374. (Re- 
 cord Pnl>.') 
 
 507
 
 * 569 GLOSSARY. 
 
 Coopatura. — A thicket of wood; 4th Inst. 307; Spelm. Gloss. 
 8. V. Coopertum. 
 
 Cope. — A hill; Co. Litt. 4b. It is said in Tomlins' Law Diet, 
 to be a custom or tribute, due to the King, or lord of the soil, out 
 of the lead miues in some parts of Derbyshire. 
 
 Cottage ; Ootagium. — " A little house without land to it; " 
 Co. Litt. 56b. But it may extend to a curtilage, and implies a 
 court and backside; Emerton v. Selby, 2 Ld. Raym. 1015; S. C, 
 6 Mod. 115; 1 Salk. 169; Holt. 174. See Shep. Touch. 94; 
 Spelm. Gloss, s. v. Cofa. By 31 EI. c. 7 (repealed by 15 Geo. 3, 
 c. 32), it was enacted that no new cottage should (with some 
 exceptions) be built without having at least four acres of land 
 annexed to it. See this discussed, 2nd Inst. 736. 
 
 County. — Co. Litt. 50a; Spelm. Gloss, s. v. Comitatus: Schira. 
 Where " Counties, Ridings, and Divisions," are mentionecl in an 
 Act of Parliament, " County " applies to e\;ery county except 
 Yorkshire and Lincolnshire; " Riding" to the Ridings of York- 
 shire and " Division " to the Divisions of Lincolnshire; Evans 
 V. Stevens, 4 T. R. 459; and since 7 Will. 4 & 1 Vict. c. 53, s. 7, 
 to the Isle of Ely; Reg. v. Isle of Ely, 15 Q. B. 827. As to the 
 Counties Palatine, see 4th Instit. 20i to 222; Spelm. Gloss, s. v. 
 Comites; Chitty, Pr-erog. 77. 
 
 Court. — Defined Ca Litt. 58a; Spelm. Gloss, s. v. Curia. A 
 full account of most of the old Courts will be found in the 4th 
 Instit. See also the index to Co. Litt.: the remarks of Sir H. 
 Maine on the Manorial Courts, Village Commun. 639; and as to 
 courts exercising criminal jurisdiction, Stephen, Hist, of Criminal 
 Law, Vol. I. 
 
 Croft. — " A little close or pightle adjoining to a house, used 
 either for pasture or arable, as the owner pleases. In 
 
 [ * 569 ] many * places such close is called a ham;" Shep. Touch. 
 95. In Latin, Croftum, Croftus, Cruftum; Spelm. 
 
 Glass, s. V. Croftum. 
 
 Curtilage. — " A little croft or court or place of easement to 
 put in cattle for a time, or to lay in wood, coal, or timber, or such 
 other things necessary for household;" Fitzherbert on Survey- 
 ing, Chap. 1. Spelmau considers it to be "the yard not the gar- 
 den;" see s. V. Curtilagium, Curtillum; though it may be used 
 for garden, he says: see per Fairfax, 21 Ed. 4, 52, pi. 15; and per 
 Frowike, Keilvv. 57, pi. 7, cited post, House. , 
 
 Custom: Consuetude. —"This word cmisuetudo hath in law 
 
 508
 
 GLOSSARY. *570 
 
 divers siguilications; 1. For tho Common Law, as consueludo 
 Anglicc; 2. For statute law, as contra consuetudinem communi 
 concilio regni edit.', 3. For particular customs, as gavelkind, 
 Borough English, and the like; 4. For rents, services, «&.€., duo 
 to the lord, as consuetudines et sermtia; 5. For customs, tributes, 
 or impositions, &c., as de novis cotisuetudinibus levatis in regno 
 sice hi terra sive in aqud; 0. Subsidies or customs granted by 
 common consent, that is, by authority of Parliament, pro bono 
 publico;" 2nd lostit. 58. Consaetudo signifies also "tolls, mu- 
 rage, frontage, paviage, and such like newly granted by the King;" 
 Co. Litt. 58 b. See on this latter point, Egremont v. Saul, G A. 
 & E. 924, and the cases there cited. 
 
 Custom is distinguished from prescription in Co. JLitt. 113b; 
 and as to within what places a custom may be alleged, see Co. 
 Litt. 110b. 
 
 In 22 Ed. 1, 364 (Record Publ. ), customs are distinguished 
 from services as follows; "Customs are things which are done 
 Bnd demanded by reason of bodily service; services are things 
 which are demanded of the tenant by reason of the tenement 
 which he holds of the demandant, to wit, rent and things of that 
 kind, or suit demanded by reason of the tenement." 
 
 Day-work. — In Kent a very common measure of land==4 
 square perches of 16 ft.=5xj oi an acre; Elton Ten Kent, 13U: 
 it bears the same meaning in other places, see post, p. 572, 
 n. (b). 
 
 * Deforcement. — A disseisin is a wrongful putting [*570] 
 out of him that is actually seised of a freehold. (See 
 Co. Litt. 153b.) See also the discussion of disseisin in Taylor 
 d. Atkyns v. Horde, 1 Burr. 60; S. C. 2. And abatement is when 
 a man died seised of an estate of an inheritance, and between the 
 death and the entry of the heir an estranger doth interpose him- 
 self and abate. 
 
 Intrusion: First, properly is when the ancestor died seised of 
 any estate of inheritance expectant upon an estate for life, and 
 then tenant for life dieth, and between the death and the entry 
 of the heir, a stranger doth interpose himself and intrude. Sec^ 
 ondly, he that entreth upon any of the King's demesnes, .and 
 takcth the profits, is said to intrude upon the King's possession. 
 Thirdly, when the heir in ward entreth at his full ago without 
 satisfaction for his marriage, the writ saith quod intrusit. 
 
 Deforciamenfum comprehendeth not only these aforenamed, 
 but any man that holdeth land whereunto another man hath right, 
 be it by descent or purchase, is said to be a deforceor;" Co. Litt 
 277a; Co. Litt. 331 b. 
 
 Delfs. — This word " probably means open pits or diggings;" 
 
 509
 
 * 571 GLOSSABY. 
 
 Att. Gen. for the Isle of Man v. Mylchreest, 4 App. Cas. 294, at p. 
 
 308. 
 
 Demand. — Co. Litt. 291 b; Altham's Case, 8 Rep. at p. 153b. 
 Lease at a rent " for all exactions and demands." These words 
 discharge the lessee from all rents and services, but not of suit of 
 Court, or such things as are not then in demand; and therefore, 
 the lease being made by a parson, not of tithes; Pfirkins v. Hinde, 
 Cro. El. 161; Stile v. Miles, Ow. 39; S. C. sub uom. Stile and 
 Miller's Case, 1 Leon. 300. 
 
 Demesne : Demeine : Domain : Dominiciim : Terrae domini- 
 cales. — "Demains, according to the common speech, are the 
 lord's chief manor place with the lands thereto belonging; terroe 
 dominicaJes, which he and his ancestors have from time to time 
 kept in their own manual occupation for the maintenance of them- 
 selves and, their families; and all the parts of a manor, except 
 what is in the hands of freeholders, are said to be demains. Copy- 
 hold lands have been accounted demains, because they 
 [* 571 ] that are the tenants thereof are judged in law to *have 
 no other estate but at the will of the lord; so that it is 
 still reputed to be, in a manner, in the lord's hands; but this word 
 is oftentimes used for a distinction between those lands that the 
 lord of the manor hath in his own hands, or in the hands of his 
 lessees demised at a rack-rent, and such other land appertaining 
 to the manor which belongeth to free or copyholders; Bract, lib. 
 4, tract. 3, c. 9; Fleta, lib. 5, c. 5;" Jacob, Law Diet., where it is 
 said to be derived from dominium, and not, as some have sup- 
 posed, from " de mamC' (Cp. the Eng., "in hand," and Lat., 
 "in manu," as used in the civil law.) 
 
 Britton, 205 b (Bk. IIL ch. 15), says "Demeyne proprement 
 est tenement qe chescun tient severalment en fee." 
 
 " 'Demesne Lands in the ordinary legal sense include all lands 
 of whatever use or character held by the tenant in chief, and oc- 
 cupied by him in connection with his residence, the mansion 
 house of the estate,' per FitzGibbon, L. J., Griffin v. Taylor, 16 
 L. R. Ir. 203. In S. C. at p. 202, per Sullivan, C. ' The true 
 definition of demesne lands is, lands held by the owner with the 
 mansion house." ' - 
 
 See also Cowell, Law Diet, s. v. Demain, and see Du Cange 
 (Gloss.), under Demainum; Demainiuni; Domanium; Domini- 
 cum; Bracton, f. 263a, where it is said to have the same meaning 
 as BoRDLANDS (ante). 
 
 The demesnes pass by a conveyance of the manor of which they 
 form part. Shep. Touch. 92. It is therefore of importance on 
 the sale of a manor to except any lands belonging to the vendor 
 within the manor, which are not intended to be sold, as they may 
 be demesne lauds. 
 510
 
 GLOSSARY. * 572 
 
 Kelham, Diet., gives Demeigne, demenie, demeine, lueaniug 
 "owu,"' a sense in which the word demesne (or some other form 
 of the same word) is frequently used in the Year Books and other 
 early documents (a). Prof. Skeat (Etym. Eng. Diet), connects 
 it with dominium, and says " demesne " is a false spelling, prob- 
 ably due to confusion with old Fr. mesnee, or niaisnie, a house- 
 hold. 
 
 "■ Seisitus in dominico sua tit (or sicid) de feodo sua,'' seised in 
 his demesne as of fee; Glanv. Lib. xiii., c. c. 2, 3. See Williams 
 on Seisin, p. 6. See Wrotesleif v. Adams, Plowd. at p. 191; and 
 per Lord Alvanley, C. J., Slade v. Don-land, 2 Bos. & P. at p. 
 577; S. C. in error, 5 East, 272. 
 
 If a man " alleges seisin of things manurable "(6), as 
 of * lands, tenements, rents, &c., he shall say quod fuit [ * 572 ] 
 seisifns i)i dominico suo ut de feodo; if of things not 
 manurable, as of an advowson, &c., he shall say ut de feodo et 
 jure, omitting in dominico suo;^' Com. Dig. Pleader, C. 35, cit- 
 ing Litt. s. 10. The words of Littleton, rendered in Com. " things 
 manurable" are "cho.ses que home poet aver un manuell occu- 
 pacion, possession ou resceit; " things whereof a man may have 
 a manual occupation, possession, or receipt; Co. Litt. 17a. 
 
 As to the proper mode of pleading the seisin of the sovereign, 
 see 1 Rep. 28b [the case of Alton Woods); 2 Chitty on Pleading, 
 7th ed., 405 ("seised in her demesne as of fee (c) in right of her 
 crown of England " ) ; Mounson v. Redshaw, 1 Wms. Saund. 187 
 (vol. l,p. 185", Ed. 1871). 
 
 As to the proper mode of pleading the seisin of husband and 
 wife, see 1 Wms. Saund. 253, n. (4) (vol. 1, p. 343, Ed. 1871). 
 
 Denariata, Denariatus Terrse.— An acre; Spelm. Gloss, s. v. 
 
 Fardella. See Measdres of Land. 
 
 (a) Britton, 32 a: " nos ministres deraeynes," our own officers: ih., 212 a 
 "en son noun denieyne," in hisownname. , , ^ 
 
 (h) •• Manurable:" tlie old sense was simply "capable ol being worked at 
 with the hand " . Manure is a contraeted form of" nnuKeuvre, Low Lat. 
 
 Mann opera, or Manopera: Bkeat, Etym. Diet. s. vv. Manure, Manu-uvre. 
 
 WedL'wood (Diet. Eng. Etym.) gives the derivation from Fr. manouvrer 
 (manu operare) and the meaning to "hold, occupy, or possess." See also 
 Cowell, Law Diet. .s. v. Minnwry. Kelham (Norman Diet.) gives Mayneur, 
 Mainour, Mavnoeure, as meaning "work, manure, oecuiiy," 
 
 See also Spelin. (Jloss. .s. v. M((nopcr(i, where it is said that " manopera) in 
 our manors at the present day are called ' dales works.' " 
 
 (c) The words "as of fee " cannot, tlierefore, in this case, have tlie mean- 
 in" ascribed to them in Williams (m Seisin (p. «), viz.: "an estate held feu- 
 dallv of another person." In the case of a fee tail, the words were ut de 
 feodo taUiaio:' Cowell (Law Diet. s. v. Demain) explains the wonis '■«( de 
 feodo " to m<"an held of a superior lord; and says that " the application ol 
 these words to the King and Crown land is crept [in] by error and ignorance 
 of the word lee." But, P.ritton, '.>(i.'-, b., 20(1 a., speaks of Seism '■ rom dc 
 fee " as of fee. in contradistinction to less estates; and this is the meaning 
 given by Littleton, s. 1, supjxirted by Coke and ilargrave. As to " fee," see 
 also Digby, Hist. U. V. :5rd edit. 31 (n.), 5!) (n.), 70 (n.). 
 
 511
 
 * 574 GLOSSARY. 
 
 Dene. — A valley. Dena silvae, a thicket of wood in a valley; 
 Co. Litt. 4b; Co. Litt. 5b; see Spelm. Gloss, s. v. Dena. Bat it 
 may mean a tovrn ; Co. Litt. 4b. 
 
 Deodand. — " Whatever personal chattel is the immediate oc- 
 casion of the death of any reasonable creature, which is forfeited 
 
 to the King, to be applied to pious uses, and distributed 
 [*573] * in alms by his high almoner; " Jaco^), Law Diet. ; see 
 
 Spelm. Gloss, s. v. Deodanda; Chitty on Prerog. 153 
 sqq.; Coke, 3rd Instit. cap. 9; and for two curious examples in 
 which a horse and a tree were deodands, see Y. B. 30 & 31 Edw. 
 L (Eecord Publ., Appendix II., pp. 528, 529). 
 
 Dismes are TIT^ES. 
 
 Disseisin. — See ante, DEFOKCEMENr. 
 
 Dole. — The share of any man in a lot meadow, or common 
 meadow which is divided yearly and distributed by lots among 
 the owners; see Co. Litt. 4a; Spelm. Gloss, s. v. Dolae; Pratt v. 
 Groome, 15 East. 235; Elton on Comm. 31; Williams on Com- 
 mons, 90. The owner of a dole may have a freehold in the soil; 
 Co. Litt. 4a, 343b; or he may have only vestura terras; Tenants 
 of Owning' s Case, 4 Leon, 43. See also as to lot meads, Wms. 
 on R. P., Appendix C. 
 
 Driftway. — See Way. 
 
 Duty, Debitum. — Extends to things due that are certain, not 
 to what may become due on taking an account; Co. Litt. 291a, 
 
 Erw. — The W^elsh acre. See Meastjkes of Land. 
 
 Essart. — See AssAET. 
 
 Estover. — See Bote. 
 
 Estra^y.— .See Williams on Commons, 286. Spelm. Gloss, s. v. 
 Extrahura: 1 Blackstone, Comm. 297; 1 Bend. & Dal. 19; Britt. 
 c. 17; Constat)le's Case, 5 Rep. at 108b. Nelson, Lex Maneriorum, 
 8. v.; Fitzherbert, Surv. 54, Chitty, Prerog. 151 et seq. ; Co. Litt. 
 200a, A subject may prescribe for estrays, Foxleifs Case, 5 Rep. 
 109a; Abbot of Strata Mercella^s Case, 9 Rep, at 276. 
 
 Estrepement. — Waste done or permitted by a tenant for life 
 or years: Spelm. Gloss, s. v. Estrepamentum. As to the 
 [ * 574 ] * writ of Estrepement, see the Statute of Gloucester, 6 
 Ed, L c. 13; 2nd Instit. 327. 
 
 512
 
 GLOSSARY. * 575 
 
 Fair. — See Market. 
 
 Faldage. — See post, FoLDCOtmsE; Fbankfoldage. 
 
 Fallow. — .See Warkectum. 
 
 Fardella; Ferdella; Fardendela ; Fardingdela; Fard- 
 ing; Ferdingel; Farthindel; Farundel; Ferlingus.— A rood; 
 
 Spelm. Gloss, s. v.; see Measures of Land. Cp. Fartliinijctle or 
 Fardingale, a hooped petticoat;- see Skeat, Etym. Diet., where it 
 is connected with old French verdugalle: Span, verdugo, a rod; 
 and see Latham, Eng. Diet., giving the iorm ferdigew. See also 
 Eyton, Key Domesd. 14n. 
 
 Farm. — " Farm is a collective word, consisting of divers things 
 collected together, whereof one is a messuage, and the others 
 are the lands, meadows, pastures, woods, commons, and other 
 things lying or appertaining thereto. And the messuage is not a 
 common messuage, nor are the lands of the quality of other lands 
 commonly lying to other messuages in the same town, but it is a 
 capital messuage in a town, and the lands lying to it are great de- 
 mesns, and more extensive in quantity than the demesns which 
 lie to other messuages. And yet all this does not make it to be 
 called a Farm, if it has not other things also, and that is, that it 
 has been let or demised to another for life, for years, or at will, 
 for if it has been always reserved in the hands of the inheritor 
 thereof, it has not the name of a Farm (see Roberfs Case, Moor, 
 176), so that a farm contains divers things; .... and it is a 
 capital messuage and a great demesn which have been let and de- 
 mised, and so it is commonly taken in every place And 
 
 such is the definition of a Farm as to the lessor and the lessee. 
 But a farm is oftentimes used in other senses, for as to the lessee 
 only, he may be said to be a farmer or Avhatever thing he lias in 
 lease; and that which he holds may, as to him, be called his Farm. 
 
 . . . Also i^ar»i has another sense, viz., it is called a rent 
 reserved, and that is a common sense of the word;" Wrote- [ * 575 ] 
 sley V. Adams, Plow, at p. 195a; see Co. Litt. 5a; Shep. 
 Touch. 93. 
 
 " By the name of a ferme or fearme, finna, houses, lands, and 
 tenements may pass. . . . Note, a farm in the north parts is 
 called a tack; in Lancashire, a fermeholt; in Essex, a wike;" 
 Co. Litt. 5a; Plowd. 169. See other meanings of " Farm," 
 Spelm. Gloss. 8. V. Finna. 
 
 Farthing" Land. — Probably this was land in the common fields, 
 but we have been able to find no authority on the subject. 
 
 " Everie tenement is parcell of the demaynes or services of 
 some manor. Commonly thirtio acres make a farthing land, nine 
 
 33 INTEUI'EpyrATION OF DKUOS. 513
 
 * 576 GLOSSARY. 
 
 farthings a Cornisli Acre, and four Cornish Acres a Knight's fee. 
 But this rule is overruled to a greater or lesser quantitie, accord- 
 ing to the fruitfulnesse or barrennesse of the soyle. That part 
 of the demaines which appertaineth to the Lord's dwelling house 
 they call his Barten or Berton." Carew's Survey of Corniuall, 
 1602, p. 36. 
 
 Farthing of Land. — Stated in Tomlins' Law Dictionary to be 
 a large quantity of land: sed query, see Measukes or Land. 
 
 ♦ 
 
 Fee Farm. — See post, Rents. 
 
 Ferry. — A liberty, by prescription or the king's grant, to have 
 a boat for passage upon a river for carriage of horses and men 
 for reasonable toll; Termes de la Ley, 388. Its termination must 
 be in places where the public have rights, as towns, or vills, or 
 highways leading to towns or vills; pe? Lord Abinger, C. B., 
 Huzzey v. Field, 2 C. M. & R. at 442; see also Neivton v. Cubitt, 
 12 C. B. N. S. 32; on app., 13 C. B. N. S. 864; or on ground 
 that the owner of the ferry has a right to use; but he need not 
 have the ownership of the soil at either end of the ferry; Peter 
 V. Kendal, 6 B. & C. 703; nor need he have the ownership of the 
 water; Inhabitants of Ipswich v. Broum, Sav. 11, 14. See the 
 form of the king's grant in Pirn v. Curell, 6 M. & W. at 236. As 
 to ferries, see also Woolrych on Ways, prx 363 sqq. ; Coulson & 
 Forbes on the Law of Waters, ch. 8, p. 486: and see the cases 
 collected '7 Fisher's Dig., p. 786 sqq., tit. Way. 
 
 Fine. — See Amerciament. 
 
 Firma Burgi is fally explained in 1 Stubbs, Constit. Hist., 4th 
 ed., 445 (see Madox, Firma Burgi). It appears that the king 
 
 often agreed with the inhabitants of a vill to let to them 
 [ * 576 ] the vill at fee farm. This did not pass to them * any 
 
 rights over the soil, but only the profits of the nature of 
 those included in the farm of the shire. The inhabitants of the 
 ' vill appear to have exercised the right of deciding as between 
 themselves how the rent payable to the Crown (sometimes called 
 the annual fine), should be contributed by the holders of land in 
 the vill. See an example of this in 29 Sussex Archfeol. Collections, 
 120. As to the farm of a county or shire, see 1 Stubbs, Constit. 
 Hist, 4th ed., 410. 
 
 Fishery: Piscary. — There appears to be some confusion be- 
 tween the names given to fisheries of different sorts. They are 
 divided by Holt, C.J. {Smith v. Kemp, 2 Salk. 637; S. C, 4 Mod. 
 186; Carth. 285; Holt, 322; reported differently by Skin. 342), 
 into (1) Separalis Piscaria, where he who has the fishery is 
 514
 
 GLOSSARY. *577 
 
 owner of the soil; (2) Libera PiscaHa, which is where a mere 
 right of fishing is granted; and (3) Communis Piscai'ia. 
 
 But the term " several fishery " is sometimes applied to a right 
 of fishing in public waters, which may be exerciseable by many 
 people, and the term " free " fishery is sometimes applied to a 
 several fishery, either in private or in public waters, and some- 
 times to a right of fishing in common with others; see 6 Bac. 
 Abr. tit. Pischary, and Blqomfield v. Joh)usto)i, Ir. R. 8 C. L. 68, 
 at pp. 107, 108, where Fitzgerald, B., after observing that, ac- 
 cording to Blackstone, the name " free fishery " is properly 
 applicable only to a several fishery in public waters (see 2 Bl. 
 Comm. 39), said that the "free fishery when used, as all admit 
 it may be used, in the sense of a right of fishing not exclusive, 
 is, if in alieno solo, not distinguishable tropi common of fishery." 
 
 In Malcomson v. O'Dea, 10 H. L. C. 593, where the question 
 related to a fishery granted by the Crown before Magna Chart a, 
 Willes, J. (delivering the unanimous opinion of the judges), said: 
 "Some discussion took place during the argument as to the pro- 
 per name of such a fishery, whether it ought not to have been 
 called in the pleadings (following Blackstone) a 'free' instead 
 of a ' several ' fishery. This is more of the confusion which the 
 ambiguous use of the word 'free' has occasioned, from 
 a period so early as that of the Y. B. of 7 H. 7, * fol. 13, [ * 577 ] 
 down to the case of Holford v. Bailey (13 Q. B. 426), 
 where it was clearly shown that the only substantial distinction 
 is between an exclusive right of fishery, usually called ' several,' 
 sometimes ' fi'ee ' ( used as in ' free warren ' ). and a right in com- 
 mon with others, usually called ' common of fishery,' sometimes 
 ' free ' (used as in ' free port '). The fishery in this case is suf- 
 ficiently described as a ' several ' fishery, which means an exclu- 
 sive right to fish in a given place, either with or without the pro- 
 perty in the soil." 
 
 See the meaning of "free" fishery discussed in Woolrych on 
 Waters (2nd ed. ), pp. 122 et sqq., where it is said that "to con- 
 sider the free fishery as the same with common of fishery will be 
 a reasonable as well as a legal conclusion." 
 
 Waters are either (a) Public or (6) Private : — 
 
 (a) Public iratei's. — In Public waters, i.e., the sea and navigable 
 rivers so far as they are tidal, the right of fishing prima facie be- 
 longs to the public; but the Crown had power to create, either in 
 favour of one person, or of a class of persons, a several lishery 
 in public waters, until tin; passing of Magna Charta (9 Hon. III. 
 c. 16), by which this power was taken away with a saving of 
 grants made not later than the reign of Henrv II.; see Salla.'^li 
 (Mayor of ) v. Goodman, 5 C. P. D. 431: 7 Q. B. D. 106; 7 App. 
 Cas. 633; Woolrych on AN'aters (2nd ed. ), 131; Malcomsou v. 
 O'Dea, 10 H. L. C. 593, at p. 618; per Lord Blackburn, Neill v. 
 Duke of Devonshire, H App. Cas. at p. 180; Williams on Commons, 
 
 515
 
 * 578 GLOSSARY. 
 
 267, 268. See the law as to public waters stated by Lord Black- 
 burn, in Neill v. Duke of Devonshire, 8 App. Cas. at pp. 176sgg. ; 
 and see Woolrych on Waters (2nd ed.), ch. 5, pp. 76 sqq. 
 
 See further as to a several fishery in a tidal navigable river, or 
 in an arm of the sea; Carter v. Murcot, 4 Burr, at 2164; Mayor 
 of Orford v. Richardson, 4 T. R. 437 ; Free Fishers of Whitstable 
 V. Gann, 11 C. B. N. S. 387; in Ex. Ch. 13 C. B. N. S. 853; in 
 Dom. Pro. 20 C. B. N. S. 1. 
 
 (6) Private icaters. — In Private waters there may exist (1) 
 Common of Fishery, or Piscary; Wms. on Comm. 259; Hall on 
 Prof, a Pr. 307; which can exist only in non-tidal rivers or in 
 lakes, and is non- exclusive; and (2) Several Fishery, 
 [ * 578 ] which is * exclusive, and the owner of which may or may 
 not be owner of the soil; Wms. on Comm. 259; Hall on 
 Prof, a Pr. 313 : and it may exist in gross; Wms. on Comm. 264. 
 
 The general public cannot acquire by user, however long, a 
 common fishery or right to fish in private waters; Wms. on Comm. 
 
 268, citing Hiidsonw Macrae, 4 B. & S. 585; and see Hargreaves 
 V. Diddams, L. R. 10 Q. B. 582; Miisset v. Burch, 35 L. T. N. S. 
 486. 
 
 Ownership of soil. — There has been much discussion as to 
 whether the grant of a several fishery in private waters by the 
 owner of the soil x>rimd facie implies a grant of the soil; see 
 Woodrych on Waters (2nd ed.), pp. Ill sqq. According to Co. 
 Litt. 4 b, the soil does not necessarily pass. See Mr. Hargrave's 
 note, Co. Litt. 122 a; and Shep. Touch. 97. Plowden (170) men- 
 tions "pi.scarjes" as examples of hereditas incorporata. It ap- 
 pears, however, from the recent decisions that the presumption 
 now is that the soil passes : see Smith v. Kemp, 2 Salk. 637; S. 
 C, Holt, 322; Seymour v. Courtenay, 5 Burr. 2814; Duke of 
 Somerset v. Fogwell, 5 B & C. 875; King v. Ellis, 1 M. & S. 652; 
 Holford v. Baileij, 8 Q. B. 1000; S. C, 13 Q. B. 426; Marshall 
 v. Ulleswater Co., 3 B. & S. 732; S. C, 6 B. & S. 570: see these 
 cases discussed and disapproved, Wms. oa Comm. p. 259 et seq., 
 where it is stated (in accordance with the judgment of Cockburn, 
 C.J., in Marsliall v. Ulleswater Steam Nac. Co., 3 B. «& S. 732, at 
 p. 746) that though the modern authorities have established the 
 doctrine of a presumption that the soil does pass to the grantee; 
 yet this doctrine is opposed both to principle and to the more an- 
 cient authorities. But see Bloomfield v. Johnston, Ir. R. 8 C. 
 L. 68, esp. per Fitzgerald, B., at p. 105 seq. In the last-mentioned 
 c^se it was held that the grant of a "■free'''' fishery over the soil of 
 the grantor is, as a matter of construction, and especially in a 
 grant by the Crown, the grant of a fishery not exclusive : and 
 evidence cannot be received to show that it was intended to ex- 
 clude the grantor. The difference between the grant of a " sev- 
 eral " and that of a "free" ashery was also considered with re- 
 spect to the passing of the soil, and it seems to have been thought 
 516
 
 GLOSSARY. *5S0 
 
 that, in the former case, the presumption is iu favour of 
 
 the soil passing, in the latter, against it. See * the [ * 579 ] 
 
 cases collected in 3 Fisher's Dig., 1786 ef seq., and Neill 
 
 V. Duke of Devonshire, 8 App. Cas. 135. 
 
 A several fishery may be appurtenant to a manor-, Rogers v. 
 Allen, 1 Campb. 309; and if the manor is destroyed, the right 
 may still subsist in gross; per Lord Selborne, C, Neill v. Duke 
 of Devonshire, 8 App. Cas. at p. 153; per Lord O'Hagan, ib., at 
 p. 169. 
 
 Common of fishery. — Common of fishery sometimes also called 
 free fishery, is the right of fishing in another man's water iu 
 common with the owner of the soil and perhaps also with ether 
 persons who may be entitled to the same right; Williams on 
 Commons, 259. As this right is a profit & prendre it cannot be 
 claimed by the inhabitants of a parish; Bland \. Lix)scomhe, ^ 
 El. & Bl. 713 (note); S. C, 3 C. L. K. 261; or of a parish and 
 manor; Allcjood v. Gibson, 34 L. T. 883; S. C, 25 AV. R. 60. 
 
 Common fishery. — A common fishery (called by Hale, de Jur. 
 Mar., cited 8 App. Cas., p. 177; " a public common of piscary "), 
 which must be carefully distinguished from a common of fishery, 
 or piscary, is a fishery which is free to all the public; Benett v. 
 Costar, 8 Taunt. 183; S. C, 2 J. B. Moo. 83. It is submitted 
 that a common fishery being a profit a prendre can only, exist in 
 a tidal river or the sea; Pearce v. Scotcher, 9 Q. B. D. 162, and 
 the cases there cited. 
 
 See the cases collected in 16 Vin. Ab., ^' Pischary: " and see 
 
 Coulson & Forbes on the Law of Waters, p. 338. 
 
 ■*•. 
 
 Foldcourse: Sheepwalk: Cursus Ovium.— The right of a' 
 man to pasture his sheep on the commonable grounds of a manor 
 or superior lordship, without being obliged to fold them in the 
 lord's fold. See x^ost Frankfoldage ; Spelm. Grloss. 8. V. Fal- 
 dagium; Williams on Commons, p. 277, and the cases there 
 cited; and Robinson v. Duleep Singh, 11 Ch. D. 798. Mr. Wil- 
 liams appears to have fallen into error in saying that this right 
 is called " Libertas faldagii " and "cursus ovium;" Spolman 
 (?t6i sup.) explains " libertas faldagii " as the lord's right to have 
 the tenant's sheep folded on his land; and this view is borne out 
 by Punsany and Leader'' s Case, 1 Leon. 11. 
 
 * Sometimes " Foldcourse " or " Sheepwalk " is used [ * 580 ] 
 for the land itself on which the sheep feed; ('o. Litt. 6a. 
 
 Forera. — A headland; Spelm. (lloss., s. v. Forcra ; see ante., 
 Common Fields. 
 
 Foreshore. — The sea shore up to the point of high water of 
 medium tides, between spring and neap tides, is called the fore- 
 shore, and is ordinarily and primO, facie, vested in the Crown 
 
 517
 
 * 581 GLOSSARY. 
 
 subject to the rights of the Queen's subjects of fishing and navi- 
 gation, not only in the sea, but in all tidal navigable rivers, and 
 of passing over the foreshore itself; but it may belong to a sub- 
 ject, either by itself, or as part of a manor: See the cases cited 
 in Williams on Commons, 265 et seq., Att.-Gen. v. Burridge, 10 
 Pri. 350; Att.-Gen. v. Parmenter, 10 Pri. 878; Att.-Gen.. v. Tom- 
 line, 14 Ch. D. 58. And see Co. Litt.- 261a, note; Woolrych on 
 Waters (2nd ed. ), 23 sqq.'- Coulson & Forbes on Waters, pp. 12 
 sqq. ; Chitty, Prerog. 207. See as to foreshore passing under 
 ancient grants, ante, pp. 71, 72; and 6 Fisher's Dig. 1080 etseq. 
 Bathing. — There is no right at common law for the public to 
 cross the foreshore for the purpose of bathing in the sea; Blundell 
 V. Catterall, 5 B. & Aid. 268; Rex v. Crunden, 2 Campb. 89: 
 Woolrych on Waters, p. 7 et seq. ; Coulson & Forbes on Waters, 
 p. 40 et seq. 
 
 Forest (see ante. Chase), defined Spelm. Gloss, s. v. Foresta, 
 Manwood, c. 1, s. 1. A subject may hold a forest by grant from 
 the Crown; Co. Litt. 238a; provided that the grant contains a 
 provision that on request made in Chancery, the grantee and his 
 heirs shall have justices of the forest; 4 Inst. 314. See the Case 
 of Leicester Forest, Cro. Jac. 155. 
 
 By the grant of a forest in a man's own ground, not only the 
 privilege'; but the land itself passes; Co. Litt. 5 b; Shep. T. 96. 
 
 A forest may be appendant to an honor, and may be part of a 
 manor, honor,* or castle; Jenk. 29, pi. 55; 26 Ass. 131, pi. 60. 
 See also Ke.r v. Bridges, Palmer, 60, 87; S. C, sub nom. R. v. 
 
 ,,,-, Briggs, 2 Rol. Rep. 189. 
 
 [ * 581 ] * See 4th Instit. 289 etseq.; Spelm. s. v. F'oresta; 
 Manwood on the Forest Laws; Williams on Commons, 
 p. 228 et seq.; 3 Cruise Dig. tit. xxvii., s. 2 et seq.; 13 Vin. Abr. 
 "Forests:" Chitty on the Prerogative, 137 sqq.; Att. Gen. v. 
 Downshire, 5 Pri. 269. 
 
 Franchise or Liberty. — A royal privilege belonging either to 
 the Crown or to a subject by virtue of a grant from the Crown, 
 either express, or implied from long enjoyment; Williams on 
 Commons, 228. The principal franchises are (1) Liberties to 
 hold Courts; (2) grants of Jura Regalia and Counties Palatine; 
 (3) grants of Forest Courts; (4) liberty to make a park; (5) the 
 right of freewarren; (6) to have the goods of felons, &c.; (7) to 
 have waifs and strays; (8) to hold a fair or market; (9) to keep 
 a ferry. 
 
 See on Franchises, 3 Cruise, Dig. tit. xxvii., p. 244 sqq; 2 Bl. 
 Comm. 37; Chitty on the Prerogative, 118 sqq., where it is said 
 that "the jwra coronce, or rights of the Crown, as long as they 
 are attached to the king are called prerogatives; but when such 
 prerogatives are delegated to a subject, they acquire the appella- 
 tion of franchises." 
 518
 
 GLOSSARY. * 582 
 
 Where a common person has, by prescription or grant, liberties, 
 which, if he had not, the King would have enjoyed throughout 
 England, such as waif, estray, wreck, &c., there, if they come to 
 the Crown by forfeiture or otherwise, they are extinguished and 
 cannot afterwards come to the hands of a common person with- 
 out a fresh grant; but on the other hand such liberties as a com- 
 mon person hath by grant or prescription, which the King would 
 not have had by his prerogative, if such prescription were not, 
 are not extinguished by their coming to the Crown, and v.'ill pass 
 by the grant of a manor or a market " with all liberties, &c., in as 
 full and ample a manner as A. had it; " see Heddy v. Wheel- 
 house, Cro. El. 558, 591; The Abbot of Strata MerceUa'fi Case, 
 9 Kep. 24 ; Whist ler^s Case, 10 Rep. at p. 65a; Reniger v. 
 Fogossia, 1 Plowd. at p. Tia. Notwithstandihg Rex v. Capper, 
 5 Pri. 21-7; Att.-Gen. v. Downshire, 5 Pri. 269, this doctrine 
 appears to be still law; Northuinberland, Duke of, v. 
 Houghton, L. R. * 5 Ex. 127: approved Saltash, Mayor [ * 582 ] 
 of v. Goodman, 5 C. P. D. at p. 442. 
 
 Frankfoldage -Faldag-ium is the right of the lord of a 
 manor or other person to have all the sheep within his manor, or 
 within a certain vill or town, or other district, folded at night on 
 his land, for the purpose of manuring it; see Williams on Com- 
 mons, 274 et seq., and the cases there cited; Anon., Keilw. 198. 
 The duty of the tenants to fold their sheep on the lord's land was 
 called suit of fold, secta faldoe; Spelm. Gloss, s. v. Faldagium. 
 See examples of frank foldage in 3 Ed. 3, 3, pi. 7; 8 Ed. 3, 37, 
 pi. 48; stated 8 Rep. at p. 125 b; The City of London'' s Case. 
 See ante, Foldcouese. 
 
 Frankpledge. — See post, Leet. 
 
 Freewarren. — See post, Waeren. 
 
 Frith or Frydd (in Wales) a close. Att.-Gen. v. Reveley, 
 printed for private circulation (in Lincoln's Inn Library). 
 
 Furlong : Ferlingus, or Ferlingum.— Is a furrowlong, which 
 in ancient time was the eighth part of a mile; and land will 
 pass by that name; Co. Litt. 5b. 
 
 It is also used for a division of the common field; Seebohm, 4; 
 Spelm. Gloss, s. v. Furlongus. 
 
 See Common Fields; Measures of Land. 
 
 Gabel, Gavell, Gablum, Gaulum, Gabellum, Gabettum, 
 
 Galtellethum, and Gavelletum. A rent, custom, duty or ser- 
 vice, yield(ul or done; to the king or any other lord; Co. Lit. ,142a, 
 A rent: Elton, Ten. Kent, 29. A tax; Stnbbs' Select Charters 
 
 519
 
 *583 GLOSSARY. 
 
 (Gloss.). See other meanings, Spelm. Gloss, s v. Gabella. From 
 the above comes — 
 
 Gale, still used for the taking of a mine in the West of Eng- 
 land. To gale a mine, to acquire the right of working it; and 
 gale is the common word in Ireland for a payment of rent, or for 
 the rent dae at a certain term; Wedgwood, Diet. Eng. Etym. 
 s. V. Gabel. , 
 
 [ * 583 ] * Gorce, Gors, or Gort .— " A deep pit of Avater, con- 
 sisteth of water and land, and therefore by the grant 
 thereof by that name the soil passeth; " Co. Lit. 5b; and a widow 
 shall be endowed of it; Challenor v. Thomas, Yelv. 143. It is 
 also used for Weir; Spelm. Gloss, s. v. Gors. 
 
 See the meaning of " gurgites," " gors," and " wears," discussed 
 per Willes, J., in Malcomson v. O'Dea, 10 H. L. C. at p. 619. In 
 the Register of Worcester Priory (Camd. Soc. ), fol. 39 b, gurgites 
 seem to be fisheries; seeib., Hale's Introd., p. xcix., citing 25 Ed. 
 3, stat. 3, c. 4, and post, Kidel. 
 
 Gore, Fother, or Pyke. — Parcels in the common fields; "and 
 they are called so, because they be broad in the one end and a 
 sharp pyke in the other end;" Fitzh. Surveying, ch. sxi. ; Re- 
 gister of Worcester Priory, fol. 49 a; Seebohm, 6, 20. See 
 Common Fields. 
 
 Grange. — " By the name of Grange, Grangia, a house or edi- 
 fice, not only where corn is stored up like as in barnes, but neces- 
 sary places for husbandry also, as stables for hay and horses, and 
 stables and styes for other cattle, and a curtilege; and the close 
 wherein it standeth shall pass; and it is a French word and sig- 
 nifieth the same as we take it;" Co. Litt. 5a. See Spelm. Gloss, 
 s. V. Grangia. " Where land, meadow, and pastux'e, &c., belong- 
 ing to such houses are called altogether by the name of a grange, 
 then perhaps by this word the whole may pass;" Shep. Touch. 
 93a. See OgneVs Case, 4 Rep. 48b, where a farm was called 
 Creweltield Grange. In Lincolnshire and some of the northern 
 counties every solitary farmhouse is called a grange; Tomlin's 
 Law Diet, sub voe. 
 
 Ground. See Land. — Demise of "all that piece of ground or 
 garden plot" passed houses built upon part of it; Burton \. 
 Broume, Palm. 319; S. C, 2 Rol. Rep. 261—265; the reports are 
 not easily reconcilable. 
 
 Haia, a park. 4th Inst. 294; Spelm. Gloss, s. v.; also a net 
 for caj^ching conies; ibid., and see Latham's Eng. Diet. s. v. Hay; 
 and 1 Ellis, Introd. Domesd. pp. 114, 115. 
 520
 
 GLOSSARY. * 5S5 
 
 * Halymote. Spelman (Gloss. 8. vv. Haligemot, Halt- [ * 584 ] 
 motus, and Halinot) explains this word to n^ean a meet- 
 ing of the Lords Court Baron, or of wards and societies (guilds) 
 in boroughs and cities (ex. gr., the Court of a London Company; 
 4th Instit. 249). The word is still in use in some places; Toml. 
 Law Diet. s. v., not only for vhe Court, but also for the manor 
 itself, as in Smith v. Brownhw, L. R. 9 Eq. 241. 
 
 Spelman, ubi sup. says that it is also used to mean an Eccle- 
 siastical Court; see 4th Instit. 32L 
 
 Ham, properly a house; 4th Instit. 294 : a vill; a piece of 
 ground shaped like the ham of the leg; Spelm. Gloss, sub roce. 
 We have not found any reported case in which a manor passed by 
 the name of "ham;" but see Seebohm, Eng. Yill. Comm. 126, 
 254, 127. In many places a croft is called a ham; Shep. Touch. 95. 
 
 Hamlet, in common acceptation used for a vill; per Kenyon, 
 C. J., King V. Mortns, 4 T. R. at 552. Spelman (Gloss, s. v. 
 Hamel) and Holt, C.J., (Anon., 12 Mod. 546, pi. 912) consider it 
 to be apart of a vill. See 14 Ass. pi. 8. Dyer, 142 b; Articuli 
 Statu ti Exonie, 14 Ed. 1 (9 Ruff. App. 15). The distinction 
 seems to be that a vill has a constable, and a hamlet has none; 
 Rex V. Heivson, 12 Mod. 180, S. C. sub nom. Chorley's Case, Holt, 
 153; 1 Salk. 175; R. v. Norton, 1 T. R. 374 at 376, perBuller, J. 
 
 See Township, post. 
 
 Haybote. i.e., hedgebote. See s. v. Bote. 
 
 Hedge.^"No man making a ditch can cut into his neigh- 
 bour's soil; usually he cuts it to the very extremity of his own 
 land; he is of course bound to throw the soil which he digs up on 
 to his own land; and often ... he plants a hedge on the top of 
 it: " per Lawrence, J., Voivles v. Miller, 3 Taunt, at p. 138. See 
 Gujj v. West, 2 Selw. N. P. 1287. 
 
 In many parts of England it is considered that the land of the 
 owner of the hedge and ditch primd facie extends for 3 feet 
 from the stake of the hedge; but it appears that this is 
 * not correct, and that it really extends to the edge of [ * 585 ] 
 the ditch adjoining his neighbour : Vowles v. Miller, 
 ubi sup. 
 
 At common law, the owners of adjoining closes are not bound 
 to fence either against or for the benefit of each other, but in the 
 absence of feuces each owner is bound to prevent his cattle or 
 other animals from trespassing on his neighbour's premises. By 
 prescription, hinvevor, a landowner may bo bound to maintain k 
 fence on his land for the benefit of the owner of the adjoining 
 close: Lawrence v. Jenkins, L. R. 8 Q. B. at 278. The same rule 
 
 521
 
 * 586 GLOSSARY. 
 
 in the absence of agreement appears to hold between landlord 
 and tenant: Erskine v. Adeane, L. R. 8 Ch. 756. 
 See Hunt on Boundaries. 
 
 Herbage. Vestura terrse. — " If a man hath 20 acres of land 
 and by deed granteth to another and his heirs vesturam terrce, 
 and maketh livery of seisin secundum forman chartce, the land 
 itself shall not pass, because he hath a particular right in the 
 land; for thereby he shall not have the houses, timber-trees, 
 mines, and other real things, parcel of the inheritance, but he 
 shall have the vesture of the land, (that is) the corn, grass, un- 
 •dervv^ood, sweepage, and the like, and he shall have an action of 
 trespass qua re clausum f regit The same law, if a man grant 
 herbagium terrce, he hath a like particular right in the land, and 
 shall have an action quare clausam f regit ; but by grant 
 thereof and livery made, the soil shall not pass, as is aforesaid. 
 If a man let to B. the herbage of his woods, and after grant, all 
 his lands in the tenure, possession or occupation of B., the woods 
 shall pass, for B. hath a particular possession and occupation 
 which is sufficient in this case;" Co Litt. 4 b. 
 
 It is pointed out in Williams on Commons (p. 19) that Coke 
 did not mean to say that livery was necessary in this case, but 
 that, if there be a grant by deed, notwithstanding the livery the 
 soil does not pass. 
 
 On the other hand, it is said that by a grant of the profits of 
 land or vestura terrce (14 H, 8, 6 b), or of vestura terras for term 
 of life (Anon., Keilw. 118 pi. 60) ^he land itself passes. In the 
 Bishop of Oxford's Case, Palmer, 174, a distinction is 
 [ * 586 ] * drawn between a grant of vestura terroi and prima 
 vestura terrce., and it is said that the soil passes bj a 
 grant of vestura, but not of prima vestura. In Potter v. North, 
 1 Vent, at 398, it is argued that vestura terrce must mean all the 
 profits of the land, so that the land must pass by a grant of it. 
 But The Tenants of Owning'' s Case, 4 Leon. 43, pi. 118; S. C, 
 Ow. 37, is in favour of Coke's opinion. See post, Rents and 
 Profits. 
 
 A man may prescribe or allege a custom to have and enjoy 
 solam vesturam terroi from such a day till such a day, and hereby 
 the owner of the sail shall be excluded to pasture or feed there: 
 Co. Litt. 122 a. Sir G. Sparke's Prescription, Winch. 6. 
 
 The meaning of " herbage " was much discussed in Earl de la 
 Wart^ V. Miles, 17 Ch. D. 535. 
 
 Sweepage. — Spelman (Gloss, s. v. Herbagium) restricts ves^wra 
 fejTffi to that which is taken by the mouths of animals; but " sweep- 
 age " in the passage cited from Co. Litt. appears to mean " by 
 mowing." See Duncange, s. v. Herbagium. 
 
 See also as to the herbage, prima vestura, &c., Hall, Prof, a Pr. 
 Ch. 3, pp. 18 sqq. 
 522
 
 GLOSSARY. * 587 
 
 Hereditament. — "Whatsoever may be inherited is an heredita- 
 ment, be it corporeal or incorporeal, real or personal, or mixed;" 
 Co. Litt. 6 a. 
 
 " There is no question but a manor may pass by the word 
 "hereditaments; " per Ld. Hardwicke, Norn's v. Le Neve, 3 Atk. 
 82. 
 
 A use is a hereditament: Plowd. 58; 3 Rep. 2 b. 
 
 A condition is a hereditament: 3 Rep. 2 b. 
 
 An annuity in fee is a hereditament: "A mere personal thing, 
 as an annuity may be an hereditament, though held for a chattel 
 interest, or an interest merely of freehold, when that interest is 
 carved out of a larger estate which is of inheritance." . , . 
 " Though an estate for years be not a hereditament, it may be an 
 estate in a hereditament, and therefore the subject may pass:" 
 Shep. Touch. 91. 
 
 Hcereditas corporata is such a messuage, land, meadow past- 
 ure, rents, and the like, which have substance in them and 
 may continue always. But liareditas incorporata is 
 such as * advowsons, villains, ways, commons, courts, [ * 587 ] 
 piscaries, and the like, which are or may be appendant 
 or appurtenant to inheritances corporate; and such things are and 
 may be termed appurtenances'" Plowd. 170. 
 
 " Here is implied a division of fee or inheritance, viz., into 
 corporeal, as lands and tenements which lie in livery, compre- 
 hended in this word feoflPment, and may pass by livery by deed, 
 or without deed, which of some is called hcereditas corporata : and 
 incorporeal (which lie in grant, and cannot pass by livery, but by 
 deed, as advowsons, commons, &c., and of some is called ha'veditas 
 incorporata, and by the delivery of the deed, the freehold and in- 
 heritance of such inheritance as doth lie in grant doth pass), 
 comprehended in this word grant, -^^ Co. Litt. 9 a (d). 
 
 There are some remarks on the word " hereditament " as used 
 in the Statute of Frauds in the judgment in Buckeridge v. In- 
 gram, 2 Ves. Jun. 652, 662 et seq. 
 
 Hide or Hyde. — See the meaning of this discussed in 1 Stubbs, 
 Constit. Hist. (4th ed.), 21, 79, 185, 287; Elton, Ten. Kent, 126; 
 Spelm. Gloss, s. v. Hida ; Ellis, Introd. Domesd. vol. i. pp. 145 
 sqq. ; Eyton, Key to Domesd. See ante, Carucate; post, Meas 
 URES OF Land, Plough Land. 
 
 "One plowland, carncata teircp, or a bide of land, hida trrrce. 
 (which is all one), is not of any certain content, but as much as 
 
 a plow can by course of husbandry plow in a year And 
 
 a plowland may contain a messuage, wood, meadow, and pasture, 
 
 (d) Tlie Act to amend the Law of ProiMTiy. H ct 9 Vict. c. KXi. ntulera 
 every feofTment, except a f'eofl'ineiit iikkIc imdcr a custojii by an infant, void 
 unles.s evidence l)y a deed, and l)y the .same .Vet, alleorporeal licieditament.s 
 are made to lie in grant. 
 
 523
 
 * 589 GLOSSARY. 
 
 because that by them the plowmea and the cattle belonging to 
 the plow are maintained;" Co. Litt. 69 a. See post, Measures 
 OF Land, as to the distinction between the hide as a measure of 
 land and as the unit of taxatiou. In Anglo Saxon times it was 
 sometimes used as terrce familice, mansus. Land may pass by 
 the name of Hide; Shep. Touch. 12. 
 
 See, as to the size of the ancient hide in Kent (40 
 [*588] acres), * Elton, Ten. Kent, 127; but ibid., p. 128, in 
 later times a hide was a piece of arable land containing 
 in general 120 acres. In the manors of St. Paul's the hide gen- 
 erally contained 120 acres, or 4 virgates of 30 acres, but there 
 were local variations; Domesday of St. Paul's (Camd. Soc. ) In- 
 trod., p. xiii. ; ibid., Ixii. 
 
 Honour. — " By the name of an honor which a subject may 
 hold divers manors and lands may pass;" Co. Litt. 5 a: Shep. 
 Touch. 92. See more as to the nature of an honour, The King 
 V. Level, 1 Buls. 194; 2 Rol. Ab. 72; 14 Vin. 308 et seq. : Co. 
 Litt. 108 a; Mad. Bar. Ang. Bk. 1; Spelm. Gloss, s. v. Honor. 
 
 A list of the Honours now existing will be found in Tom! ins' 
 Law Diet, sub voce. 
 
 House.— (See Messuage.) In Keilw. 57, pi. 7. Frowike, C.J., 
 seems to draw a distinction between domus, house, and messua- 
 gium; '^ Domus ne poit estre intende auter chose forsque les 
 choses en building, mes messuagium serra dit tout le mansion 
 lieu, et les curtelages serra prise come parcel del domus, mes 
 garden nemy en lun case ne en lauter, &c." See Co. Litt. 5 b, 
 Mr. Hargrave's Note (1): Doe d. Clements v. Collins, 2 T. R. 498; 
 Gulliver\ Jeffreys v. Poijntz, 2 W. Bl. 726; S. C, 3 Wills. 141; 
 Doe d, Lempriere v. Martin, 2 W. Bl. 1148. (These were cases 
 on Wills. ) " There is no difference between domus and mes 
 suage," per Fairfax, 21 Ed. 4, 52, pi. 15. "An acre or more may 
 pass by the name of a house;" Co. Litt. 5 b. See also Shep. 
 Touch. 94, where it is said that as much passes by " house " as 
 by " messuage." By house the curtilage passes: St. John v. Fiott, 
 2 Buls. ^1 113. 
 
 " By the grant of a house, the doors, windows, locks and keys 
 do pass as parcel of it, albeit at the time of the grant they be 
 actually severed from the house;" Shep. Touch. 90. 
 
 Hundred. — As to the meaning of Hundred, see Spelm. Gloss. 
 
 8. vv. Hundredus, Wapentachium ; 1 Stubbs, Constit. Hist. (4th 
 
 ed. ) 103 et seq. ; Ellis, Introd. Domesd. L 184 sqq. ; 
 
 [ * 589 ] * Com. Dig. sub voc. ; Palgrave, Eng. Comm. I., 96 foil. 
 
 As to the Hundred Court, see 4th Inst. 267. 
 
 A Hundred, i. e., the Court of the Hundred (which is of the 
 
 nature of a Court Baron; 8 H. 7, 1; 12 H. 7, 17) belongs to the 
 
 Crown of common right, and can only be acquired by a subject 
 
 524
 
 GLOSSARY. *590 
 
 by grant from the Crown, or prescription; 11 H. 4, 80, pi. 44; 
 Co. Litt. 114 b. This Conrt can neither tine nor imprison, but 
 can amerce; Godfrey'' s Case, 11 Rep. at p. 43 b. 
 
 A grant by the Crown passes (1) the Hundred Court, with im- 
 plied powers of making a bailiff; (2) generally, the Leet of the 
 Hun.ii-ed (see Davief, v. Lowden, Cart. 28; Exeter v. Smith, Cart. 
 177); (3) sometimes, the retorna hrevium: ^jer Hale, C. B., 
 Aikynfi v. Clare, 1 Vent, at 403. As to whether the Leet passes 
 by a grant of the Hundred, see Style v. Abbot of Teirkcsbury, 8 
 H. 7, 1; 12 H. 7, 15. 
 
 A grant of the Hundi-ed by a subject passes only the franchises, 
 and not his lands within the Hundred: per King, C, Bays v. Bir-d, 
 2 P. Wms. at p. 400. 
 
 A Hundred may be parcel of a castle or manor: iMttreVs Case, 
 4 Rep. at 88 b; and may be appurtenant to a manor, 11 H. 4, 89, 
 pi. 44. 
 
 By 2 Ed. 3, c. 12, and 14 Ed. 3, c. 9, Hundreds that had been 
 granted by the Crown for any estate less than a fee simple were 
 rejoined as to the bailywick of the same to the counties; and all 
 grants made of the bailywick of the Hundred since that time are 
 void; 4th Instit. 267: The King v. Kingsmill, 8 Mod. 199; Cole 
 V. Ireland, 2 Show. 98; S. C, T. Raym. 360; T. Jones, 194. . 
 
 In Yorkshire, Lincolnshire, Nottinghamshire, Derbyshire, 
 Northamptonshire, Rutland, and Leicestershire, the word " Wa- 
 pentake " (see Ellis, Introd. Domesd. vol. i , pp. 180, sqq. ) is used 
 instead of Hundred; and to the north of these districts the word 
 Ward is generally instead of Hundred; 1 Stubbs, Constat. Hist. 
 (4th ed. ) 103 et seq. In Ireland a hundred is sometimes called 
 a Barony; Spelm. Gloss, s. v. Baronia. 
 
 Husbandland, used for yardland in the North of England; 
 Seebohm, Eng. Vill. Comm. 61. 
 
 * Inland. — Demesne land; Spelm. Gloss, s. v. But [ * 590 ] 
 see Elton, Ton. Kent, 33. See Hale, Domesd. of St. 
 Paul's Introd. xxii. ; 1 Ellis, Introd. Domesd. p. 230; andante, 
 8. V. Demesne. 
 
 Kidel or Kiddle. — " Kidels is a proper name for open weirs 
 whereby fish are caught;" 2nd Instit. 38. "Weirs (kidelli or 
 gurgites) were the means usual in ancient times for appropriating 
 and enjoying several fisheries iu tidal waters:" per Lord Sel- 
 borne, C, Neill v. Duke of Devonshire, 8 App. Cas. at p. 144; see 
 Spelm. Gloss, s. v. Kidellus. As to the meaning of " gurgites," 
 see ante, Gorce. 
 
 Knightsfee. — "The word 'knight's fee' is a compound word, 
 and may comprehend many things, and therefore by the grant of 
 this [a knight's fee] may pass land, meadow, and pasture as par- 
 
 525
 
 * 591 GLOSSARY. 
 
 eel of it. And sometimes by this doth pass so much land as to 
 make a knight's fee; and some say that it doth contain 8 hydes 
 of land. And it seems also that a manor may pass by this name, 
 if it be usually called so;" Shep. Touch. 92, 93; Co. Litt. 5 a; 
 Mich. 12 Ed. 2, 358; and see Cowell, Interp. s. v. 
 
 Probably it does not contain any certain number of acres. See 
 this discussed Co. Litt. 69 a; 2nd Instit. 596; Spelm. Gloss, s. v. 
 Feodum, p. 218 b; 1 Stubbs, Constit. Hist. 287;.l.Mad. Exch. 
 322. Digby, Hist. Real Prop, 3rd ed., pp. 35, 60 n, 72. See post, 
 Measures or Land. 
 
 Lammas Meadows. — Meadows in which rights of common 
 exist, formerly after the 1st August, but now, by virtue of 24 
 Geo. 2, c. 23, after the 12th August. See Maine, Village Com- 
 munities, and per Jessel, M. R., Bayliss v. Tyssen Amhurst, 6 
 Ch. D. at p. 507. 
 
 Land. — " Terra, in the legal signification, comprehendeth any 
 ground soil or earth whatsoever; as meadows, pastures, woods, 
 moors, waters, marishes, furzes, and heath. Terra est yiovien 
 generalissimum, et comprehendit omnes species terrce ; but pro- 
 perly, terra dicitur a terendo quia vomere teritur; and anciently 
 
 it was written with a single r: and in that sense it 
 [ * 591 ] * included whatsoever may be plowed; and is all one 
 
 with arvum ab arando. It legally includeth also all 
 castles, houses, and other buildings; for castles, houses, &c., con- 
 sist upon two things, viz., land or ground, as the foundation or 
 structure thereupon; so as, passing the land or ground, the 
 structure or building thereupon passeth therewith. . , . And, 
 lastly, the earth hath in law a great extent upwards, not only of 
 water, as hath been said, but of air and all other things even up 
 to heaven; for citjns est solum ejus est usque ad caelum;^- Co. 
 Litt. 4 a. See as to this maxim, Doe v. Burt, 1 T. R. 701 ; Cor- 
 bett V. Hill, L. R. 9 Eq. 671; Iw re Metropolitan District Ry. Co. 
 and Cosh, 13 Ch. D. 607, per Fry, J., at p. 612; per Jessel, M. 
 R., at p. 620. 
 
 " The word ' land,' strictly doth signify nothing but arable 
 land; but in a larger sense it doth comprehend any ground, soil, 
 or earth whatsoever.- And therefore by a grant of all lands, do 
 pass arable lands, meadows, pastures, woods, moors, waters, 
 marishes (marshes), furzes, heath, and such like, and the castles, 
 houses, and buildings thereupon, but not rents, advowsons, and 
 such like things. Also by grant of any land in possession, the 
 reversion thereof will pass. And yet by the grant of a rever- 
 sion of land, the land in possession will not pass; " Shep. Touch. 
 91. 
 
 Houses, mills, and wood; Ewer v. Henden, Ow. at 75; S. C, 
 2. And. 123; 2 Rol. Ab. 57, pi. 7, sub nom. Eiverv. Hay den, Cro. 
 526
 
 GLOSSAKY. * 592 
 
 El. 476, 658; LuttreVs Case, 4 Rep. at 87 b; the grantor's interest 
 in a common field; Co. Litt. 4 a: mines, earth, clay, quarries; 
 14 H. 8, 1: Shep. Touch. 90; running water: Canham v. Fisk, 2 
 Cr. & J. 126; S. C.,2T\rw. 155; may pass by the name of "land." 
 See unte, Ground. 
 
 In the King's letters patent, land passed by the name of " The 
 Serjeanty of C; " Mich. 12 Ed. 2, 358. 
 
 See post. Rents and Profits. 
 
 Law Day: — "Alias dicitur de Visu franci plegii, valgo Leta; 
 alias de curia comitatus juxta Stat. 1 Edw. 4, c. 2;" Spelm, 
 Gloss, c. v.; Shep. Touch. 92 note (96). See instances of Law 
 days of a Hundred Court, Y. B. 40 Ed. 3, pp. 191, 193 (Record 
 Publication). 
 
 * Leet. — A court leet, or view of frank pledge, is [ * 592 ] 
 a court of record, and is derived out of the sheriff's 
 Tourn; Rex v. Hetvson, 12 Mod. 180. It is holden before the 
 Steward, who is judge thereof; 4th Instit. 261: and has the same 
 power as the sheriff in his Tourn; 22 Edw. 4, 22; and may be 
 created by the King; Brownl. 36. See more about leets, 2nd 
 Instit. 70 et seg. ; 4th Instit. 261; Spelm. Gloss, s. vv. Folkes 
 mote: Leta: Stubbs, Constit. Hist.; Williams on Commons, 
 272; and 6 Viner. Ab. tit. Court Leet 
 
 As to whether a leet passes by the grant of a hundred or manor 
 see ante, Hundred, post, Manor. 
 
 That a Court leet can fine but not imprison, see Godfrey's Case, 
 11 Rep. 43 b; and that it can amerce, see Brook v. Hustler, 11 
 Mod. 75; S. C, 1 Salk. 56. See it distinguished from the Ct. 
 Baron in Delacherois v. Delacherois, 11 H. L. C. 62; S. C, 4 N. 
 R. 501. 
 
 Librata Terrse :=^249 acres; Spelm. Gloss, s. V. Fardella. 
 See post. Measures of Land. For other meaning, see Tomlins' 
 Law Diet. s. V. « 
 
 Lot Meads. — See Dole. 
 
 Lynches or Linces. — The banks between the terraces formed 
 where a common field is on a hill side by ploughing, so as to turn 
 the sod down hill: also the terraces themselves; Seebohm, Eng. 
 Vill. Comm. 5. 
 
 Manor. — The meaning of manor is discussed in 1 Cruise, Dig. 
 tit. Tenures, Ch. 3. It consists of demesne lauds, i. e., those re- 
 tained by the lord or granted out of an estate less than fee simple 
 (see ante. Demesne), tenemental lands, i. e., those granted by the 
 lord in fee simple at certain services, and a Court Baron, which 
 
 527
 
 *594 GLOSSARY. 
 
 is incident to it of common right; 34 H. 6, 49; Coke Compleat 
 Copyholder, s. 31; see Rex v. Staff erton. 1 Buls. 54; see also, as 
 to Courts Baron, Holroyd v. Breare, 2 B. & A.. 473, and Baldwin 
 V. Tudge, 2 Wils. 20 (where it was held that the amerciament of 
 a freeholder by the Ct. Baron must be affeei-ed by his peers, i. e., 
 freeholders of the manor); Com. Dig. tit. Copyhold, R. 
 [ * 593 ] * Where there was formerly a manor in several ham- 
 lets, each hamlet may become a manor by long continu- 
 ance; per Herle, J., Mich. 8 Ed. 2, 250. 
 
 A manor may contain several towns; Co, Litt. 5a, 58a; and a 
 town may contain several manors; Whittier v. Stockma?i, 2 Buls. 
 at p. 87: see post, p. 625, note (s). 
 
 A manor very seldom extends over more than one parish, but 
 there are often several manors in one parish; 1 Black. Comm. 113; 
 Com Dig. Advotvso7i, A. 
 
 See as to the origin and growth of Manors, Digby, Hist. Real 
 Prop., especially Ch. iv. ; Stubbs, Const. Hist. Bishop Stubbs 
 says (Vol. I., 4th ed., p. 290), that "the name 'manor' is of Nor- 
 man origin, but the estate to which it was given existed in its es- 
 sential character long before the Conquest." And again. Vol. I., 
 c. 11, 8. 129, " The manor itself was, as Ordericus tells us, noth- 
 ing more nor less than the ancient township, now held by a lord 
 who possessed certain judicial rights varying according to the 
 grants by which he was infeoffed." According to Sir H. Ellis, 
 " Villa in the Domesday Survey was another term for a manor or 
 lordship" (Introd. Domesd., Vol. I, p. 240). 
 
 See further as to the connection between the mark or village 
 community and the manor, Maine, Village Communities, lect. 3, 
 lect. 5, pp. 131 sqq. ; and Maine, Early Law and Custom, pp. 302, 
 313, and note A, p. 329 .s-gg. ; Seebohm, Eng. Village Comm., 
 passim; and see pos^, Township; particularly the quotations from 
 Britton, Bracton, and Fleta there given. 
 
 Much light is thrown upon the constitution and details of the 
 ancient manors by the Hundred Rolls (temp. Hen. III. — Edw. I.): 
 and the 4 Edw. I., Stat. 1, called Extenta Manerii, with which 
 compare the particulars given in the Register of Worcester Priory, 
 fol. 24b; and see the note thereon by Archd. Hale (Camd. Soc. 
 1865). 
 
 "This word 'Manor' is a word of large extent, and may com- 
 prehend many things (Plowd. 168). And therefore by the grant 
 of a manor, without the words of cum pertinentiis, do pass de- 
 mesnes, rents, and services (see Co. Litt. 310b, 319b), lands, 
 meadows, pastures, woods, commons, advowsons appendant (5 
 Rep. 11 b. ), villains regardant, courts baron, and 
 [*594] * perquisites thereof, that are in truth at the time of 
 the grant parcel of the manor. But nothing that in truth 
 is not parcel of the manor, albeit it be so reputed, will pass by 
 the grant of the manor; and therefore if one have a manor, and 
 528
 
 GLOSSARY. * 595 
 
 after purchase the law day {i. e., the Leet; see ante, Law Day), 
 or a warrant to it, and then he grant away the manor, hereby 
 the law day or the warrant will not pass (Dy. 30b, pi. 209). 
 And yet if by union time out of mind [or for a short period] 
 tbej have gotten a reputation of appendancy, perhaps by the 
 grant of the manor cum 2^(^i'tineHtiis these thing may pass (see 
 Plowd. 168a). By the grant of a manor also divers towns (Co. 
 Litt. 5a) [the lands in divers towns] may pass. An honor also 
 may pass by this name; and so also may a castle or a hundred. 
 And one manor also, that is parcel of another manor, may pass 
 by the grant of that manor whereof it is parcel, [viz., the seig- 
 uory of the inferior manor] {Marshe and SmHh''s Case, 1 Leon. 
 20);" Shep. Touch. 92. S. C, Cro. El. 38. See also Co. Litt. oSa; 
 Darell v. Wijbarne, Dy. 207a, pi. 14. The freehold interest in 
 the copyhold passes; Delacherois v. Delacherois, 11 H. L. C. 62; 
 S. C. (with the Irish Judgments), 4 N. R. 501. 
 
 If a man creates a particular estate in the whole or part of a 
 manor, the reversion remains parcel of, and passes by a grant of 
 the manor; but if he creates a particular estate of freehold in the 
 whole manor except Blackacre, and during the continuance of 
 that estate grants the manor, Blackacre does not pass: secus if 
 the particular estate be for years (Co. Litt. 324b, 325a). Ac- 
 cordingly, where a prior and convent leased the site and all the 
 demesnes of a manor for life at a rent, held, that the rent and re- 
 version of the denoesnes passed by a grant of the manor; Ajjrice 
 V. Rogers, Dyer, 233a, pi. 10 and 11; so did trees excepted from a 
 lease for years (secus a lease for life). Ives^ Case, 5 Rep. 11a. 
 
 Rent may be parcel of a manor by prescription; 22 Ass. pi. 53; 
 31 Ass. pi. 23. 
 
 A carucate may pass by the name of a manor; 27 H. 6, 2, pi. 14. 
 
 By the grant of a manor with the appurtenances a castle or 
 cantred (i. e., hundred) 26 Ass. pi. 54, and land bought in and 
 occupied with the manor; Symonds v. Green, Cro. Car. 308, may 
 pass. 
 
 * Manor may pass by the word " messuage," " land," [ * 595 ] 
 "priory," "chauntry," "Knight's fee;" seethe authori- 
 ties cited in argument Rex v. Staffcrton, 1 Buls. 54; by " castle," 
 Co. Litt. 5 a. 
 
 A.S to the convevance of part of a manor, see Co. Litt. 324 a, 
 325 b; Marshe &^ Smith's Case, 1 Leon. 20; S. C, 4 Cro. El. 38, 
 sub nom. Montis v. Smith; Finch's Case, 6 Rep. 62 b. The cases 
 are collected in 2 Bythewood, by Sweet (3rd ed. ), 551, &c., 6 id. 
 589 et seq. 
 
 Repided manor. — By a grant of a " reputed manor," the free- 
 hold interest in the waste does not pass, nor does any specific 
 tenement of the grantor; Doe d. Clayton v. Williams, 11 M. & 
 W. 803. 
 
 By " manor " a reputed manor may pass in w deed, but not in 
 
 34 INTEIU'KKTATION OK I)KP:i>S. 529
 
 * 596 GLOSSARY. 
 
 a fine or recovery; Mallet v. Mallet, Cro. Eliz. 524, 707; Finches 
 Case, 6 Rep. at p. G4 a; but see Treswallen v. Penhules, 2 Rol. 
 Rep. 66. 
 
 If the lord conveys g,way the fee simple of a copyhold tene- 
 ment, the copyholder can convey his interest by a common law 
 assurance. Phillips v. Ball, 6 C B. N. S. 811. 
 
 See generally as to manors, Com. Dig. tit. Copyhold, Q. ; 15 
 Vin. Abr. s. v. Manor. 
 
 Ma-nurable. — See ante, s. v. Demesne, note (b). 
 
 Market. — A man can only have a market or fair (which is a 
 great market held once or twice a year), by grant from the crown 
 or prescription. The owner of a fair or market has, without any 
 express grant, the right to ho d a Court of Record, called a Court 
 of Piepoudre (see, as to this Court, 4th Instit. 272), as incident 
 thereto; but he has no right to take tolls without express grant 
 or prescription, 2nd Instit. 220, 221; Heddy \. Wellhouse, Moor. 
 474. 
 
 A market may be granted so as not to be confined by metes and 
 bounds; Alt. -General v. Horner, 14 Q. B. D. 245. As to distur- 
 bance of market, see the cases collected in Goldsmid v. Great 
 Eastern Rail. Co., 25 Ch. D. 511; S. C, 9 App. Cas. 928. 
 
 See 15 Vin. Abr. Market: and post, Stallage, Tolls. 
 
 Meadow. — Land passes by the grant of a meadow; Co. Litt. 
 
 4 b. It is said (Woodfall, Landlord and Tenant), that 
 [ * 596 ] * meadow means ancient meadow only ; Tresham v. 
 
 Lambe, 2 Brownl. 46, but query; for the case applies to 
 the Stat, of Gloucester only. 
 
 Mease ; Mese. — Idem quod messuagium; Spelm. Gloss, s. v. 
 
 Measures of Land (e). — (1) Domesday Measures. — Very 
 little is known as to the Domesday measures. Mr. Eyton, in his 
 "Key to Domesday (Dorset)," distinguishes between the geld 
 hide, i.e., the hide used as the unit of taxation, and the hide used 
 
 (p) " In the simpler stages of society, land was admeasured more by 
 quality than by extent. The fields capable ot being titled by one plough 
 in the" course of one year constituted the Carmcate or Ploughland. This 
 mode of calculation, though rude, was equitable. It defined the value ot 
 the donation better than an enumeration of superficial acres. The term of 
 measurement designated the capability and worth of the land which it com- 
 prised. In various parts of England therefore, the carruoate differed ex- 
 ceedingly in quantity. The same denomination was applied to 60, 80, 
 100, 112, 120, and 150 acres;" Palgrave, Eng. Commonwealth, vol. 2, p. 
 ccccxlvii; see also Mr. Elton's remarks, Tenures of Kent, 12;? .s^g. And see 
 Kemble, Saxons in England, Vol. I., Appendix, B., on the Hide; and Eng- 
 land under the Normans, by J. F. Morgan, Ch. II. 
 
 530
 
 GLOSSARY. 
 
 597 
 
 as a land measure, which was also called a carucate. He says 
 that a geld hide was sub-divided as follows: — 
 
 Hide. 
 
 Virgate. 
 
 Ferndel.* Acre. 
 
 1 
 
 I 
 
 4 
 
 16 
 
 48 
 
 
 1 
 
 4 
 
 12 
 
 
 
 1 
 
 3 
 
 where the acre ("acra ad gheldum") was aboat five statute 
 acres. 
 
 Mr. Eyton is of opiniou that the linear measures were:— 
 
 Feet. 
 
 Yards. 
 
 Virgse or 
 pertica;. 
 
 AcriB. 
 
 Quareotense. 
 
 Leucaj or Leugse 
 or Leuna;. 
 
 161 
 
 5i 
 
 1 
 
 
 
 
 66 
 
 22 
 
 4 
 
 1 
 
 
 
 660 
 
 220 
 
 40 
 
 10 
 
 1 
 
 
 7920 
 
 2640 
 
 480 
 
 120 
 
 12 
 
 1 
 
 * and that the areal measures were:- 
 
 [ * 597 ] 
 
 Square 
 yards. 
 
 Squaie 
 perches. 
 
 Acres. 
 
 Quarentenaj. 
 
 Leuca;. 
 
 301 
 
 1 
 
 
 
 
 4840 
 
 160 
 
 1 
 
 10 
 
 
 — 
 
 48400 
 
 1600 
 
 1 
 
 580800 
 
 19200 ' 
 
 120 
 
 12 
 
 1 
 
 It should be observed that the acra (linear) was the same as 
 the modern chain, and thjit the acra and quarentena (areal) were 
 respectively equal to 10 square acriX' or quarentenoo (linear). 
 
 Professor Pearson (England during thc^ early and Middle Ages, 
 654) comes to the conclusion that there were two hides, the first 
 or " Bede's hide," i.e., before Domesday, of from 25 to HO acres, 
 which he says, is conceivably the Domesday virgate; the other, 
 which was used in later times, of from 100 to 120 acres. 
 
 531
 
 * 598 GLOSSARY. 
 
 See also as to tbe measurement of land in Domesday, Ellis, In- 
 trod. Domesd., Vol. I., pp. 145 et seq. 
 
 (2) Mediceval Measures. — Ridge, selio. — As was stated above, 
 the shots in the common field were divided into strips called 
 "rido-es," or selio; see ante, Common Fields. A ridge was of 
 uncertain size (Co. Litt. 5 b), for it appears ^to have been as much 
 land as could be ploughed by a team of eight oxen in a day, a 
 quantity which necessarily varied according to the nature of the 
 soil; but the normal size was 40 perches in length by 4 perches 
 in width, i.e., an acre. It sometimes happened that contiguous 
 ridges and the balk between them were thrown into one. 
 
 A source of uncertainty arises from the common confusion be- 
 tween statute and customary acres; but it appears probable, 
 though we can adduce no definite authority for the statement, 
 that a ridge was a customary acre. See, on all these questions, 
 Seebohm, Eng. Viil. Comm. -passim. 
 
 hide, carucafe ploughland. — Abide, or carucate, or ploughland, 
 was of uncertain extent; Co. Litt. 69 a. According to Spelman 
 (Gloss s. V. Hida), it was the extent that could be ploughed by 
 a team in the course of a year; so that, assuming that 
 [*598 ] the owner of each yardland * contributed two oxen to the 
 common team, its normal size would be 30 X 8 =120 
 acres. In the Eegister of Worcester Priory above mentioned, 
 the carucate appears to have contained 6 virgates = 180 acres : 
 see Hale's Introd. pp. xix., xlv. See ante, Carucate, Hide; post, 
 Ploughland. 
 
 Virgate, Yardland.— The normal yardland or virgate consisted 
 of 30 ridges, or 30 acres; but its size varied in different places; 
 Co. Litt. 5 a, 69 a; Spelm. Gloss, s. v. Virgata terrce. In the Re- 
 gister of Worcester Priory (Camd. Soc. 1865, ed. Hale), fol. 25 b, 
 among the inquiries directed to be made of the particulars of 
 manors is one — " Quot acrce faciunt virgatam secundum diversa 
 Zoca." See ib. fol. 36 a, 48 a,"62 a, and the Editor's notes, show- 
 ing that the normal virgate, in the manors of the Priory, con- 
 tained 30 acres, but that the size was not always the same even in 
 the lands of the same manor. 
 
 Fardella terra; was the fourth part of a virgate; fardingdeale 
 was the fourth of an acre, i.e., a rood; and sometimes the 160th 
 part of an acre, i.e.; a square perch. See Spelm. Gloss, s. v. Far- 
 della, Eyton, Key Domesd. 14 n. 
 
 Measurement by divisions of a pound sterling or mark. — There 
 was another manner of measurement (derived from the subdi- 
 visions of a pound into shillings and pence), in which Librata 
 terrce was 240 acres, solidata terra', 12 acres, denariata terrce, 1 
 acre, obolata terra', ^ acre, and quarantata terra, \ of an acre. 
 Sometimes the form of measurement was derived from the divi- 
 sion of a mark, 160 pence; according to this method, denariata 
 terrce would be a square perch, obolus terrce and quadrans ten^ce, 
 532
 
 GLOSSARY. * 50!> 
 
 the ^ and ^ of a square perch respectively; Spelm. Gloss, s. vv. 
 Fardclla, Obolata. Coke, on the other hand, says that "by the grant 
 de centum libratis terrce, or 50 libratis terrce, or centum solidatis 
 terroe, SiC, land of that valne passetb;'' Co. Litt. 5 b. See on 
 this mode of admeasurement, Palgrave. Eug. Commonwealth, L, 
 98 seq. 
 
 (8) Customai^y measures. — Formerly, the size of the perch, and 
 therefore that of the customary acre, which generally contained 
 160 perches, varied in different parts of England. This may pos- 
 sibly be explained by supposing that the acre was taken of such 
 a size as to be a day's ploughing with a team of oxen; see Spelm. 
 Gloss, s. vv. Jornale, Jurnale. 
 
 * Sometimes there were two or more customary acres [ * 599 ] 
 in use in the same place for different purposes. 
 
 The following list of customary measures is taken from the ap- 
 pendix to the 2nd Report of the Commission on Weights and 
 Measures, (314) Parliamentary Papers for 1820, Vol. VII. 
 Scotch Acre: 6,150j^jj square yards. 
 
 Irish Acre: 7,840 sq. yds.=160 perches (Irish) of 7 yards 
 square instead of 5^. 
 
 The Acre, in different parts of England, was as follows, viz., 
 in — 
 
 Bedfordshire : sometimes 2 roods. 
 
 Cheshire : in some places 10,240 sq. yds. 
 
 Cornwall: sometimes one of the Welsh acres of 5,760 sq. 
 
 yds. 
 Dorsetshire: generally 134 perches. 
 
 Hampshire : from 107 to 120 perches, but sometimes 180. 
 Herefordshire : two thirds of a statute acre. 
 
 of hops, about half an acre, containing 1,000 plants; 
 of wood, 1-5^ statute acres or 256 perches. 
 Leicestershire : 2,308f sq. yds. 
 
 Lincolnshire: 5 roods, particularly for copyhold land. 
 Staffordshire: nearly 2\ acres. 
 Sussex: 107, 110, 120, 130, or 212 perches, 
 short acre, 100 or 120 perches, 
 foi'est acre, 180 perches. 
 Westmoreland: 6,760 sq. yds. or 160 perches of 6\ square; 
 
 in some places the Irish acre was used. 
 Worcestershire: hop acre, 1,000 stocks or 90 perches; 
 
 sometimes 132 or 141 perches. 
 N. Wales : Erw, or true acre, 4.320 sq. yds. ; Stang, or custo- 
 mary acre, 3,240 sq. yds., making bh Llathen ^\Q0 
 perches (Welsh), of 4h yards square, called /)a7a</r; 8 
 acres making an oxlaod, and 8 of these a ploughland in 
 Pembrokeshire. 
 Ache sometimes denoted a measure of the lengtli following, 
 i.e., in — 
 
 583
 
 * 601 . GLOSSARY. 
 
 . , , . (a chain of 4 poles or 22 var-ls. This is 
 
 Bedfordshire: \ ^^^ ^^^^ ^^ ^^^ Domesday '« Acra," 
 
 Buckinghamshire: | ante, ^. mi. 
 [ * 600 J * Derbyshire : 4 roods each of 7 or 8 yards 
 
 Yorkshire: 28 yards. 
 Lug or Luqg: — 
 
 Dorsetshire: of land, 15 feet, 1 inch, call also a goad, and 
 
 used instead of a pole of 16^ feet. 
 Herefordshire: of coppice wood, 49 sq. yds. 
 Hertfordshire : 20 feet. 
 
 Wiltshire: a pole or rod of 15, 16|, or 18 feet. 
 OxLAND. — Glamorganshire and Pembrokeshire: 8 customary 
 acres. 
 
 Paladr. — Anglesea: the perch of 4| yards square=204 sq. 
 yds. 
 
 Perch, Rod, or Pole. — A measure of length=5| yards. In 
 many counties a perch of 8 yards was used in fencing. The 
 forest pole was 7 yards; in Sherwood forest 25 feet. A coppice 
 pole was 6 yards. 
 
 Perch. — Berkshire : sometimes 18 feet for rough work. 
 
 Devonshire: of stone-work, 16|^ feet in length, 1 inch in 
 height, and 22 inches in thickness; of cob-work, 18 feet 
 in length, 1 in height, and 2 in thickness. 
 Herefordshire: of fencing, 7 yards in length; of walling, 5|. 
 Hertfordshire:, sometimes 20 feet; sometimes called a lug. 
 Lancashire: 5|, 6, 6|, 7, 7| or 8 yards in different parts of 
 
 the country. 
 Leicestershire : of hedging 8 yards; sometimes 8 yards square 
 
 for land. 
 Oxfordshire: of draining, 6 yards. 
 Westmoreland: near Lancashire, 7 yards. 
 Guernsey: 7 yds. sq. for land measure, making If perches. 
 Jersey : 7^ yards square=22 feet square=^^^ of an acre. 
 S. Wales: of land (1) sometimes 9 feet square, 100 making 
 one stangell; 4 stangells 1 ervv of 5,760 sq. yds. 
 
 (2) Sometimes 10|^ feet square, called a quart, or 
 quarter of a Llath, 40 of which made a stangell, whence 
 the erAV was 7,840 sq. yds., equal to the Irish acre. 
 [ *601 ] (3) * Sometimes ll"^feet, called bat or eglwys haw, 
 making an erw of 9,384 sq. yds. ; or in Glamorganshire 
 ^ more=ll,261, reckoning 48 to the rood or 4 stang (/). 
 
 (4) Sometimes IH feet, called a Llath, 48 making 
 a quarter cyvar, and 4 cyvars an erw of 11,666 yards (/). 
 
 (5) Sometimes 12 feet, called a quart or quarter 
 Llath, giving an erw of 10,240 sq. yds., equal to the 
 Staifordshire acre. 
 
 (/) Sic in the Eeport, but there are manifest errors. 
 534
 
 GLOSSARY. 
 
 602 
 
 Ploughland.— TTa/es; 8 Oxlands=G4 customary acres. 
 Rood of Land=4 acre=^4() perches=^l,210 sq. yds., but it 
 was often provincially used for rod, or a measure approaching 
 to it. 
 
 Cheshire: of hedging, 8 yards; land, 8 yards square. 
 Cumberland: 7 yards. 
 
 Derbyshire : of bark was a pile 7 yards in length; of drain- 
 ing or fencing 7 or 8 yards; of digging about Matlock, 
 " 7 square yards; " perhaps, rather, 7 yards square. 
 Durham: of wall building, 7 yards. 
 Northumberland : 7 yards. 
 
 Shropshire: of hedging, 8 yards; of digging 8 yards square. 
 Warwickshire: of fencing, sometimes a perch, or 5 J yards. 
 Westmoreland : of slating, 6.^ yards square-=42.| sq. yds. 
 Yorkshire : in the moorlands, of fencing, 7 yai'ds. 
 Wales: of ditching, draining, and hedging, 8 yards. 
 But.— In S. Wales, a perch of 11 feet square. 
 Erw. — S. Wales: a measure of land varying from a little more 
 thau 1 to more than 2 acres, containing 4 stangell or cyvar, each 
 containing 160 perches. 
 
 Leap. — In "Wales, formerly, 6 feet 9 inches. 
 LiNK=Y^^ of a Chain=^7y^^2^ inches. 
 
 Llath. — S. Wales: sometimes 21 feet square, 160 making 
 an erw; sometimes llf feet square, 768 to the erw; 
 sometimes * 24 feet square, 100 to the ei^w. In Anglesey. [ * 602 ] 
 f>^ llathen made an acre of 3.240 sq. yds., each contain- 
 ing 30 perches of 13|^ feet square. 
 
 (4) Modern measures. — Under the provisions of 5 Geo. 4, c. 
 74, ss. 1, 2, repealed and re-enacted by 41 & 42 Vict. c. 49, the 
 standad yard is defined, and the lineal and superficial measures 
 of land are connected in the manner shown in the following 
 tables: — 
 
 Linear Measures. 
 
 Yards. 
 
 Rod, pole, 
 or perches. 
 
 Chain. 
 
 Furlong. 
 
 Mile. 
 
 H 
 
 1 
 
 
 
 
 22 
 
 4 
 
 1 
 
 
 
 220 
 
 40 
 
 10 
 
 1 
 
 
 1760 
 
 320 
 
 80 
 
 8 
 
 1 
 
 535
 
 603 
 
 GLOSSARY. 
 
 Superficial Measures. 
 
 Square 
 yards. 
 
 Square 
 perches. 
 
 Square 
 chains. 
 
 Rood. 
 
 Acre. 
 
 301 
 
 1 
 
 
 
 
 484 
 
 16 
 
 1 
 
 
 , 
 
 1210 
 
 40 
 
 n 
 
 1 
 
 
 4840 
 
 160 
 
 10 
 
 4 
 
 1 
 
 Messuag'e : — (See also House), is commonly used to denote a 
 dwelling-house, but properly means a house with a small piece 
 of ground attached to it; Co. Litt. 5 b, 56 b; Shop. Touch. 94, 
 and cases there cited; Plowd. 85 a; 108; 4 Cruise, Dig. tit. 32, 
 Ch. 21, 8. 40; Spelm. Gloss, s, v. messaagium ; it does not neces- 
 sarily imply more than a dwelling-house {g)\ Fenn v. 
 [ *603 ] Graf Ion, 2 Bing. N. C. 617; Spelman, * ^lbi sujjra. It 
 may mean a chamber, upper or lower, in which any 
 person dwells; 3rd Instit. 65; or a manor, farm, chapel (13 Ass. 
 pi. 2), or hospital; Shep. Touch. 94. Even without the words 
 "with the appurtenances," a garden may pass; Co. Litt. 5 b, 
 50 b; Doe d. N^orton'y Webster, 12 Ad. & El. 442 (where there 
 was a description of the parcels by reference to the occupation,' 
 and the garden was in fact occupied by the tenant of the house); 
 contra, Mooore, 21. pi. 82; Keilw. 57, pi. 7; see Hill v. Grange, 
 Plowd. 164. See Fenn v. Grafton, 2 Bing. N. C. 017; Smith v. 
 Martin, 2 Wms. Saund. 400 (vol. 2, p. 802, ed. 1871), and notes 
 there, ns to whether the words " with the appurtenances " were, 
 in deeds before 1882, of any use to convey more than Avould pass 
 without'them. 
 
 Mill: — Includes the stones, tackling, and implements neces- 
 sary for the working thereof; 14 H. 8, 25 B. Place v. Fagg, 4 
 Man. & Ry. 277; Shep. Touch. 90. 
 
 A mill will pass by the name of a messuage; Hill v. Grange, 
 Plowd. 170 a. The lord of a manor may prescribe that all the 
 resiants [residents] and inhabitants within his manor must grind 
 their corn at his mill. Such a right may also arise from tenure 
 or by custom; Hix v. Gardiner, 2 Bulst. 195; see 15 Viner, ab. 
 Mill. The corn must be grown within the manor; Cort v. BirJc- 
 
 (ff) Chaiuhers. — Which may consist of part only of a house, .3rd Instit. 6.1; 
 Fenn v. Grafton, uhi Kiqn-u; Ercnift and Finches Caf<e, Cro. Car. 473; S. C. W. 
 Jones, 394 (a set of chambers in the Temple), cited per Jcssel, M. E., York- 
 shire Insurance Co. v. Clayton, 8 Q. B. D. 423. 
 
 536
 
 GLOSSAUY. *604 
 
 beck, 1 Dougl. 218. See also Drakes v. Wiglesworih, Willes, 054; 
 Harbin v. Greene, Hob. 189; Conjton v. Lithebije, 2 Wins. Saund. 
 112; S. C, 1 Vent. 10 <; Chapman v. Flexman, 2 Vent. 280. See 
 Register of Worcester Priory (Camd. Soc), fol. 32 a, and the 
 Editor's note, p. Ixiii.; Domesd. of St. Paul's (Camd. Soc), p. 
 exxx.; lb. p. 172, where "• multnra niolendini'' and '' telonium 
 niolendini " are mentioned. 
 
 See also Tomlins, Law Diet. Secta ad Molendinum; Eyton, Key 
 to Domesd. 41. 
 
 Mines and Minerals : pass by the name of land (in a convey- 
 ance of the freehold); Shep. Touch. 90; see Toivnleij v. Gibson, 2 
 T. R. 701. A lease of land passes to the lessee the right to 
 work open mines, but not to open unopened mines; 
 * and if the words are " land and mines," and no mines [ ^004 ] 
 are open, he may open and work uaopened mines; Saini- 
 der's Case, 5 Rep. 12 a; but if any mines are open, he may work 
 them only; Astry v. Ballard, 2 Lev. 185; S. C. T. Jo. 71; see Co. 
 Litt. 54 b. As to the construction of a power to lease "land and 
 mines," see Clegg v. Roicland, L. R. 2 Eq. at p. 105. 
 
 By a grant of mines the land itself will pass; but formerly, if 
 there was no livery, only a right to work them passed: Co. Litt. 
 6 a. 
 
 '•Mines" do not include open cuttings; Bell v. Wilson, L. R. 
 1 Ch. 303. 
 
 Minerals include everything that can be got from underneath 
 the surface of the earth for the purpose of profit; Hext v. Gill, L. 
 R. 7 Ch. at 712; Aft- Gen. v. Tomline, 5 Ch. D. at 702. 
 
 Mines and minerals ''lying and being within or under" the 
 lands, include everything that can be got by quarrying a.s well as 
 by mining; Midland Rail. v. Checkley, L. R. 4 Eq. 25. But the 
 context may show that they are to be got by underground work- 
 ings only; Darvill v. Roper, 3 Drew. 294; Bell v. Wilson, L. R. 1 
 Ch. 303. 
 
 "Quarries, delfs of flagstone, or slate," moan open workings 
 and things got by such working; All. -Gen. of Isle of Man\. 
 Mylchreest, 4 App. Cas. 307. 
 
 ^Vhere an agreement for a lease contained a reservation to the 
 lessor of "all mines and minerals, sand, quarries of stone, brick 
 earth, and gravel pits," and it was proved that the custom of the 
 district was that the tenant might remove and sell the flints, 
 which came to the surface in the ordinary cour.^e of ploun-hiuo-, it 
 was held tiiat the reservation must bo construed, having regard 
 to the custom, as not including such flints; Tucker v. Linger, 21 
 Ch. D. 18; 8 App. Cas. 508. 
 
 See the primary raeaning.s of "mines" and "minerals " dis- 
 tinguished per Kay, J., Midland Rail. Co. v. Haunchirood, d'C, 
 Co., 20 Ch. D. 552, where it was held that the wo^d "mines" Id 
 
 537
 
 *606 GLOSSARY. 
 
 the 77th section of the Railways Clauses Act, 1845, includes min- 
 erals, whether got by undei'ground or by open workings. 
 
 [ * 605 ] * Next Presentation. — See Advowson. As to what 
 words pass it, see 2 Vin. Ab. Advoivson (B). 
 
 Noka — a half virgate, generally 7| acres. Register of Wore. 
 Priory (Camd. Soc. ), fol. 7, and notes, p. xxxvii.; and seeib., fol. 
 41b., 43a, 5Ca, and notes, p. Ixxv. 
 
 Nummata Terrse is the same as Denariata terrcc; Spelm. 
 Gloss, s. V. See ante, Measures of Land. 
 
 Offerings: Oblations^ Obventions. --Explained in 1 Philli- 
 more, Eccl. Law (Ed. 1873, p. 1596, citing Com. Dig. tit. ^'Pro- 
 hibition,'^ G. 11; Ayliffe's ParergoD, 11. See also 16 Vin. Ab. 77, 
 tit. Offerings. 
 
 Obolata Terrse. — Half an acre, or half a square perch. Spelm. 
 Gloss, s. vv. Fardella; Obolata. See a»ie. Measures of Land. 
 
 Occupation " is a word of art, and signifieth a putting out of 
 a man's freehold in time of war; and it is all one with a disseisin 
 
 in time of peace But occupatio is also applied t^ the 
 
 possession, be it lawful or unlawful;" Co. Litt. 249b. 
 
 The word ^^ occupationes^' is sometimes used for purprestures, 
 intrusions, and usurpations; 2nd Instit. 272. (See Spelm. Gloss. 
 8. V. Occ^ipatmn.) 
 
 In the conveyance to B. in fee of a cottage in which A. then 
 resided, there was a proviso that it should be lawful for A. "to 
 live in, inhabit, dwell in, and occupy the said cottage with the 
 appurtenances, as he heretofore has done and now does for and 
 during the term of his natural life;" held, that an estate for life 
 was reserved to A.; Kenyon, C. J., said: "If this question had 
 depended on the first words of the proviso, I should have thought 
 they would have been satisfied by determining that only a liberty 
 to inhabit the cottage was given to A. ; but the word ' occupy ' 
 carries the interest reserved still further, and shows that the whole 
 estate was intended to be reserved to him;" Rex v. Inhabitants of 
 
 Eatington, 4 T. R. 181. 
 [ * 606 ] * As to a devise of " the use and occupation," see 1 
 Jarman on Wills (4th ed.), 798. 
 
 Oxgang. — See Bovate. 
 
 Pannage or Pawnage, Pannagium.— The right of putting 
 
 swine into woods to feed on the acorns and mast of beech trees, 
 ■which is a species of common of pasture; 4th Instit. 308; Wil- 
 538
 
 GLOSSARY. * 007 
 
 liams on Commons, 168, 189 [h). It is also used for the payment 
 for the right of pannage; S[)olm. Gloss, s. v. ParDuti/iuni. See 
 the meanings of the word discussed, Moore, 46 pi. 18.' PcDina- 
 giiim is also used (by corruption for pavagiuni.) for the toll for 
 paving a city causeway or way; WebVs Case, 8 Rep. at 47a. See 
 the chapter (12) on Pannage, in Manwood's Forest Llw. Chilton 
 V. Corporation of London, 7 Ch. D. 562. 
 
 Park, Parous. — A great quantity of ground inclosed, privi- 
 leged for wild beasts of chase by prescription or the King's grant. 
 A forest and a chase are not, and a park must be inclosed; Co. 
 Litt. 233a. To a lawful park three things are required: (l)a 
 liberty, either by grant "or prescription; (2) Inclosure by pale, 
 wall, or hedge: (3) beasts savage of the park; 2nd Instit. 199. 
 
 A park may be parcel of a manor by grant or prescription. The 
 Queen v. Buccleiigh, 6 Mod. at p. 151. 
 
 See 16 Viner Ab., s. v. 
 
 Parens is also used for Pound or Pinfold; Spelm. Gloss, s. v. 
 Parous. 
 
 Particata Terrae. — A rood; Spelm. Gloss, s. v. 
 
 Party-wall. — may be used in four different senses: — 
 
 First. — A wall of which the two adjoining owners are tenants 
 in common; Wiltshire v. Sidford, 1 Man. & Ry. 404; Cubitt v. 
 Porter, 8 B. & C. 257; Stedman v. Smith, 8 E. & B. 1; Standard 
 Bank of British S. America v. Stokes, 9 Ch. D. 68; 
 * Watson v. Gray, 14 Ch. D. 192. This is the most com- [ ^607 ] 
 mon and primary meaning of the term; per Fry, J., 
 Watson V. Gray,' 1 4 Ch. D. 192. 
 
 Second.— A wall divided longitudinally into two strips, one 
 belonging to each of the neighbouring owners. In this case the 
 owners are not tenants in common, even if the wall was erected 
 at their joint expense; Matts v. Hajrkins, 5 Taunt. 20: but where 
 there has been a common user of the wall erected at the common 
 expense, that, in the absence of any other evidence, is sufficient 
 evidence for a jury to find that the wall is held by the two parties 
 as tenants in common; Cnbitt v. Porter, 8 B. & C. 257; Standard 
 Bank of British S. America v. Stokes, 9 Ch. D. 68. 
 
 Third — A wall which belongs entirely to one of the adjoining 
 owners, but is subject to an easement or right in the other to have 
 it maintained as a dividing wall between the two tenements. The 
 term is so used in the Metropolitan Building Act, 18 & 19 Vict, 
 c. 122, s. 3. Knight v. Pursell, 11 Ch. D. 412. Such a wall may 
 
 (/j) Accord in <; to KriUon. Col. 1 i:'>b (vol. i., liv. % vh. 2\. j). :J71 . «d. 
 Nicholsi. ciidi] jKisI, p. (Jl."), s. v. I'.\stiki;. " jx'.ssdii " or i)atin:iiii' i.s a siiccica 
 of pasture. In tliis IJrittoii appears to follow Hraoton, lib. 4, c. 38; and 
 Fleta, lib. 4. c. 19, agrees. 
 
 • 539
 
 * 608 GLOSSARY. 
 
 be a party-wall for some part of its height and above that height 
 the separate property of one of the adjoining owners ( Weston v. 
 Arnold, L. R. 8 Ch. 1084); and in the same way such a wall 
 may be laterally a party wall for such distance as it is used by 
 both owners and no further: Knight v. Pursell, 11 Ch. D. 412. 
 
 Foitrth—A. wall divided longitudinally into two iijoieties, each 
 moiety being subject to a cross easement in favour of the owner 
 of the other moiety. This meaning is suggested in the note to 
 Wiltshire v. SidforcU 1 Man. & "Ry. 404. 
 
 The cases are collected in 5 Fisher, Dig. 990 et seq., and see 
 Hunt on Boundaries, chap. 5. 
 
 Pasture. — That the soil passes by a grant of " pastures," and 
 as to the difterence between 2:)astura and pasciium, see Co. Litt. 4 
 b. For another distinction between Pascuum and Pastura, see 
 Lindewode, Prov. Angl. lib. 3, tit. de Decimis, c. quoniam, cited 
 Spelm. Gloss, s. v. Pastura. 
 
 Where the right conveyed is simply a profit a prendre, it is an 
 
 incorporeal hereditament, and cannot be granted without deed; 
 
 but where the land itself was to pass, the conveyance 
 
 [ * 608 ] * might formerly be by feoffment, or, as the old books 
 
 put it, ''by parol," *. e., livery of seisin: see Hall on 
 
 Profits a Prendre, Cb. 3, pp. 18 and 99. 
 
 A person entitled to the right of common of pasture, or to a 
 several pasture, can only take it by the mouths of his cattle; 
 Bract, lib. 4, c. 38; he must not meddle with the soil, even to 
 improve the property; 1 Roll. Ab. 406. pi. 10: Harcourt v. Spicer, 
 12 H. 8, 2; 13 H. 8, 15: Sambourne v. Harilo, Bridg. 9. 
 
 Common of Pasture is one of the class of rights called profits 
 a prendre, and may be claimed by prescription or grant, and 
 either in a que estate or i-i gross, but not (except by copyholders; 
 see infra) by custom. 
 
 If claimed in a que estate (i. e., as annexed to the estate of a 
 tenant in fee simple, and exercisable either by him or by persons 
 claiming estates derived from his (^l ) {Gateivard''s Case, 6 Rep. 
 59 b: Grimstead v. Marloive,4:T. R. lll:Att.-Gen. v. Gauntlett, SY. 
 & Jer. 93; Co. Litt. 120 b; 2 Bl. Comm. 264, 265) it may be 
 either (1) appendant, or (2) appurtenant (j). 
 
 (1) Common appendant " is of common right (see this ex- 
 plained Tyrringham^s Case, 4 Rep. 36 a; S. C, Tud. L. C, R. P.), 
 and therefore a man need not prescribe for it;" Co. Litt. 122 a. 
 This seems to be inconsistent with the doctrine in Co. Litt. 121 
 
 (j) But by the Prescription Act (2 & 3 Wni. 4, c. 71), s. 5, it is no longer 
 necessary to claim in the name or right of the owner of the fee. See Wms. 
 Comm. IG, 174. 
 
 (j ) In the old hooks the word " pertineiis " is often nsed, and appendant 
 and appurtenant arc not ahvays distinguished; see Co. Litt. 121 b; Vin. Abr. 
 Common, C. and M. : Musgravc v. Cave, Willcs, 319; and Tifrringham'' s Case, 
 4 Eep. at 38 a. 
 
 510
 
 GLOSSARY. • GIO 
 
 b, that appendants are ever by prescription; "but they may bo 
 reconciled; for as appendancy cannot be without prescription, the 
 former always implies the latter; and therefore if one pleads 
 common appendant, it is unnecessary to add the usual form of 
 prescribing;" Hargrave, note to Co. Litt. 122 a. And see re- 
 marks in Wms. K. P., Append. C. ; Hayes v. Bridges, liidg, 
 L. & S. 410.* 
 
 In Dunraven v. Lleifclli/ii (k), 15 Q. B. 791 (at p. 
 810), it is * said that not every tenant of a manor lias it [ * 609 ] 
 of common right, but " only certain tenants have it — not 
 by prescription, but as a right by common law incident to the 
 grant" (2 Inst. 85) ) and "it belongs only to each grantee be 
 fore the statute of Quia Emptores of arable land by virtue of his 
 individual grant, and as incident thereto." . . . And it is lim- 
 ited to commonable cattle, " whereas the right by grant or pre 
 scription " (meaning common appurtenant) " has no such limits, 
 and depends on the will of the grantor." 
 
 Mr. Digby, Hist. R. P. ch. iii. s. 17 (2), thinks that the name 
 '' common land " is a trace of the period when the commoners 
 were regarded as having rights of property over the soil itself, 
 instead of simply y«ra in alieno solo. He describes common ap- 
 pendant as being the rights of pasturage on the wastes of a manor 
 which were incident to all freehold land held of that manor. 
 
 For definitions of common appendant, see Tyi^ingham^s Case, 
 4 Rep. 36 a (S. C, Tud. L. C, P. R.) : Mellor v. S])ateman, 1 
 Wms. Saund. 346 d, note I, citing Com. Dig. Common B. : Ben- 
 net V. Reeve, Willes, 227; 2 Instit. 85 (these authorities are set 
 out in Appendix C. to Wms. on Real P.) : per Lord Hatherley, 
 C, Warrick V. Queen's College, L. R. 6 Ch. at p. 722; Hall, Prof, a 
 Pr. 244 sqq. From these authors it appears that it was an inci- 
 dent inseparably annexed at common law by implication on every 
 ancient conveyance of arable land to a free tenant to hold of the 
 feoffor : and can bo claimed only in respect of land which then 
 was arable ( Tyrringhani' s Case, and Carr v. Lambert, L. R. 1 Ex. 
 168); for commonable beasts only (i.e., horses, oxen, cows, and 
 sheep); and is limited by levancy and couchancy (see Bennett v. 
 Reeve, Willes, 227). If the right claimed does not conform to 
 these conditions, it must bo appurtenant. Fitzherbert on Survey, 
 
 c. 6. 
 
 Being incident to the creation of a tenure, common appendant 
 must have arisen before Quia Emptores (Vin. Abr., Common, 
 C. : 1 Roll. Abr., Common, 390, pi. 4; Com. Dig., Covimon, B.). 
 It must have been created before the time of legal memory; 
 Hall, Prof, a Pr. 248, citing Y. B. 26 Hen. VIII., T. T. 
 4, pi. 15; IRoll. Ab. 396; which follows from the *doc- [ *6]0] 
 trine laid down by Coke (Co. Litt. 1 22 a), that appendancy 
 
 {k} See this case discu-sscd in Williams on Real P., Apjujndix C. 
 
 541
 
 *611 GLOSSARY. 
 
 implies prescription. So it cannot be claimed in respect of land 
 approved within legal memory, 5 Ass. 8, pi. 2. 
 
 A consideration of the history of the ancient land system of Eng- 
 land, and of the connection between the village community or mark 
 and the manor (as to which see ante, s. v. Manor, and post, s. v. 
 Township) points to the conclusion that the origin of common ap- 
 pendant is to be traced to a period anterior to the Norman conquest, 
 when the waste lands of each vill or township were depastured by the 
 community of cultivators dwelling therein, whose rights were re- 
 cognized, or, at least, whose enjoyment was not interfered with, 
 at the Norman Conquest {I), whatever may have been the changes 
 in the ownership and tenure of land introduced at that period, 
 and notwithstanding the fact that the waste lands came to be re- 
 garded as the freehold of the lord. 
 
 In support of the conclusion, that the origin of the right is to 
 be traced to the constitution of the old English Township, seethe 
 evidence and authorities collected in Williams on Commons, Lect. 
 4 (m), and Nasse, Agricultural Community (trans. Ouvry. p. 60), 
 See also the remarks on the history of waste lands and the ex- 
 tracts from Bracton given in Digby's History of the Law of Real 
 Property (3rd ed., at pp. 18, 27, 44, 150, 161, 166), and ante, 
 Manor, post. Township. 
 
 Mr. Digby (p. 18), cites authorities tending to show that in the 
 period before the Conquest the waste lands were regarded as 
 public lands, and the rights of common of each village community 
 as being something more than mere jura in alieno solo. He re- 
 fers to Kemble's Codex Diplom. cclxxvi. (grant of a villa ''et 
 communionem marisci quae ad illam villam antiquitus 
 [ *611 ] * cum recto pertinebat;") i6., cclxxxviii.; and ?"6., Introd. 
 i. p. xl. 
 
 In the Domesday Survey, " Pastura ad pecuniam " (=^pecus, 
 cattle), '^villce" is a common entry in some counties; Ellis, In- 
 trod. Domesd. vol. i. p. liv. 
 
 So in the Domesd. of St. Paul's (Camd. Soc), circa a.d. 1122, 
 we find (p. 85) an entry: — " Villata so\\\i regi . . . ab antiquo 
 xvi.d. pro ccmmunitate pastoragii." And in the same work there 
 is mentioned an entry (see Introd. and notes, pp. Ixv., cxxii.) of 
 "pastura communis ad Parochiam." 
 
 The reader is referred to the Hundred Rolls (temp. Hen. III., 
 
 (?) See r)igby, Hist. R. P., ch. i. sect. 2, and Palgrave, Eng. Common- 
 wealth, vol. i. pp. 54, 57, 65, 79, 83, 239, and 584; Palgrave, History of 
 Normandy and Eng., vol. iii., p. 599; Stubbs, Const. Hist. vol. i., ch. 9 p. 
 273; Reeves, Hist. Eng. Law, vol. i. ch. 2, notes by Finlason, citing Hale. 
 Hist. Comm. Law, as to the retention of the Anglo-Saxon customary law, 
 
 (»«) Viz. [inter alia), the forms of writs relating to common of pasture in 
 Bracton, lib. 4, c. 38, p. 224; c. 39, n. 229; 2 Fitzherb. N. B.. 125. 179 (see 
 also the writs in Glanv.. lib. 12, c. 14; lib. 13, c. 37): Y. B. 11 Hen. 7, 14 a; 
 21 Hen. 7. 40 b; Vin. Abr., Common, K. 9 to 14; Co. Litt. 110b; 2 Bl. Comm. 
 ch. 3, p. 33; Ellardw Hill. 1 Sid. 226; Pate v. Broumlow, 1 Keb. 876. 
 
 542
 
 GLOSSARY. *C12 
 
 Ed. I. ) for further evidence aa to the relation of the vill to the 
 common pasture: see Rotul. Hundred. (Record ed.), vol. ii., pp. 
 420 ("Bercha"), -4*26 (Olmested), 484 (Swafham Prior); ib. 
 (presentment of a purpresture by \V. Talemache on the common 
 pasture); tb., 535 (Gantesden). See ib. 496, where the jurors 
 present that a certain *'domina Willielma" prevented the men of 
 Stowe from driving their cattle on to the common "quaudo 
 campus seminatur; " i.e., when the arable common field was sown). 
 At pp. 553, 554, the particulars of the vill of Little Shelford are 
 given. There were three landowners in the vill holding of the 
 kinof in capite, so that this vill was not in the hands of a single 
 lord. After describing their lands and tenants, &c., the entry 
 goes on: "Dictus dominus R. de F. (one of the three tenants in 
 capite) et tenentes totius viUae habent unam communem moram 
 continentem vi acras." See ib., 534, for a similar instance 
 (Gameling), and remarks thereon in Nasse, Agric. Comm. 60. 
 (Most of the above entries in the Hund. Rolls are referred to in 
 Nasse, Agric. Community, trans, Ouvry, p. 60, q.v. {n) ). 
 
 * " If common appendant be claimed to a manor, it is [ * 612 ] 
 appendant to the demesnes, and not to the services." 
 Co Litt. 122 a, and see Tyrringhani's Case, 4 Rep. 36 b; S. C, 
 Tudor, L. C. R. P.; see also Y. B. 32 Ed. L, p. 227 (Rolls el), 
 {Malfalent v. de Romyley), and Y. B. 4 Ed. II., 111. 
 
 Common, whether appendant or appurtenant, passed, even be- 
 fore the Conv. Act, 1881, by a conveyance of the land to which 
 it was appendant or appurtenant; see ante, Rule 50, p. 186. 
 
 (2) Common apmirtenant is created by grant or prescription; 
 Cro. Car. 482; Coivlam v. Slack, 15 East,Vl08; Ridg. L. & S. 410. 
 It extends to animals not commonable, as donkeys, goats, swine, 
 and geese; Co. Litt. 122 a; and may be claimed in respect of a 
 house, meadow, or pasture; Tyrringhain\s Case, 4 Rep. at 37 a; 
 (S. C, Tud. L. C. R. P. ). Ah it may commence by grant, it may 
 be presumed to exist after long enjoyment; Coivlam v. Slack, 15 
 East, 108. It may be either for a fixed number of animals, or 
 for animals "sans nombre." i.e., levant and couchant (o). See 
 further Williams on Comm., Lect. XII., pp. 168 sqq.; Hall, Prof. 
 a Pr. 258 sqq. 
 
 in) The following are some references to cases as to rights of comnioii in 
 the earlier Year Hooks: see Y. B. 20 Ed. I. 24; 21 Ed. I. (i7, 81, IGl; 22 VA. 
 I 419 427 45:}, 02:?; :}0 Ed. I. 17, 37, 279, :«7, :M:5: ;?! Ed. I. 41:5; :?2 Ed. I. 
 2:?, :W, 4:5. in, 1:5:5, 191, 227. 241, :521; :5:{ Ed. I. (Hil. & Pasch.l, :571, 417, 
 46.H, 475, 4H5, Append. .505; :5:5 VA. I. (Mich.), 7, 9:5, 2:51 note;;55 Ed. I. 449, 
 495, .507. (The preceding references are to the edition in the Kolls Series.) 
 1 Ed. II. 7, 9, 12, 17 (coninion jncadow), 2:5 (common arable field); :5 Ed. II. 
 C,H: 4 Ed. II. 111. 145; 5 Ed. II. 100, 170; Ed. II. 1K5; 7 Ed. U. 225 (com- 
 mon meadows), 2;W, 229 (common lields); 8 VA. II. 201; 10 Ed. 11. :514, :527. 
 Ca.ses from the Year B. Ed. III. to Hen. VIII., are collected in the Table, of 
 Cases in Woolrych on Commons; 1:5 VA. 111., 20(i, 208 (Rec. Pub.). 
 
 (o) That .srtn.s nomhrc. means levant and couchant in contradistinction to 
 stinted common, .see per Willes, C. J., Bennett v. Reeve, Willes, at p. 232. 
 
 543
 
 * 613 GLOSSARY. • 
 
 (3) Common in Gross, is claimed under a grant to a man and 
 his heirs, or by prescription of enjoyment by a man and his an- 
 cestors, unconnected with the ownership of land; Co. Litt. 122 a; 
 Williams on Coram., 9, 198; Hall, Prof, a Pr. 301. The right 
 may be acquired by a corporation either by grant (Wms. on 
 Coram. 201, citing The Queen v. The Chamberlains of Almcick, 9 
 A. & E. 444); or by prescription in them and their predecessors 
 (Wms. on Coram. 12, citing Johnson v. Barnes, L. R. 7 C. P. 592; 
 8 C. P. 527); and see Boteler v. Bristoiv, Y. B. 15 Ed. IV., 29, 
 pi. 7 (stated in Hall, on Prof, a Pr. 153; and by Lord Blackburn 
 in 7 App. Cas., p. 659); 6 Ed. II., 183. 
 
 Inhabitants.— l^o profit a prendre can be claimed by inhabitants, 
 occupiers, or residents, merely as such; see 1 Wms. Saund. 340 c, 
 note (3), 033 (ed. 1871), note (x). They cannot claim in a que 
 estate, for they have no permanent estate (see English v. Burnell, 
 2 Wils. 258), but are mere tenants at will; Boteler v. 
 [ *013 ] Bristoiv, * Y. B. 15 Ed. IV. 29; nor can they claim in 
 gross, for they are not incorporated, and therefore can- 
 not take by grant or by prescription (which presupposes a grant; 
 Addington v. Clode, 2 W. Bl. 989; per Jessel, M.R., Baylis v. 
 Tyssen Amhurst, G Ch. D. at p. 507); Gateward's Case, 6 Rep. 
 59 b; S. C, sub nom. Smith v. Gateicood, Cro. Jac. 152 (see re- 
 marks on this case in Goodman v. Mayor of Salfash, 7 App. Cas. 
 633, and see the English translation of Coke corrected, ib. p. 
 660; and Wms. on Coram. 17); Anon., 3 Leon. 202, pi. 254; Con- 
 stable V. Nicholson, 14 C. B. N. S. 230; Davies v. Williams, 16 
 Q. B. 546; Padu-ick v. Knight, 7 Ex. 854; Att.-Gen. v. Mathias, 
 4 K. &. J. 579; Knight v. King, 20 L. T. N. S. 494. 
 
 Nor can a profit a prendre be claimed by custom (except in the 
 case of copyholders, see infra); see Hall on Prof, a Prendre, 162 
 et seq.; Whiitier v. Stockman, 2 Bulst. 86; Fowler v. Dale, Cro. 
 El. 362; Weekly v. Wildman, 1 Ld. Raym. 405; Mellor v. Spate- 
 man, 1 Wms. Saund. 343; Grinstead v. Marlowe, 4 T. R. 717; E. 
 V. Churchill, 4 B. & C. 755; Blewitt v. Tregonning, 3 Ad. & E. 
 554; Race v. Ward, 4 E. & B. 702. 
 
 So " householders " cannot claim as such by prescription ; Orde- 
 way V. Orme, 1 Bulst. 183; nor by custom; Selby v. Robinson, 2 
 T. R. 758; see Hall, Prof, a Pr. 173. 
 
 See per Lord Kenvon, C. J., in Grinstead v. Marlotce, 4 T. R. 
 717; and 1 Wms. Saund. 345, note (2) (p. 623, ed. 1871), as to 
 declaring generally on the plaintiff's possession. 
 
 But inhabitants may take by grant from the Crown, incorpora- 
 tion being presumed; Willingule v. Maitland, L. R. 3 Eq. 103; 
 Chilton V. London, ( Corp. of ), 7 Cli. D. 735; Lord Rivers v. 
 Adams, 3 Ex. D. 361. 
 
 As to presuming tljat inhabitants exercise rights of common as 
 claiming through freehold tenants, see Warrick v. Queen's College, 
 L. R. 6 Ch. 716. 
 
 544
 
 GLOSSARY.. *G15 
 
 But the free inhabitants of ancient tenements in a borough 
 may, it seems, have a right of lishery under a presumed trust or 
 condition in their favour in a grant to the corporation of the 
 borough; Goodman v. Mayor of Saltash, 7 App. Cas. C33. But, 
 SGinble, in that case the right claimed was held not to bo a profit 
 a prendre in alieno solo. 
 
 As to presuming a lawfnl origin in support of long 
 usage, see * Goodman v. Mayor of Snltash, ubi sup.; [ * 614 ] 
 Warrick v. Queen's College, L. K. (3 Ch. 710. 
 
 It was held in Dunraven v. Lleicellyn, 15 Q. B. 791, that the 
 liberi homines or free tenants of a manor do not form a class so 
 as to let in evidence of reputation in support of rights Cjuimed 
 by them, a view contested hy Mr. Joshua Williams (Keal P., Ap 
 pendix C. ). Consider the remarks of James, L. J., in Earl de la 
 Warr v. Miles, 17 Ch. D. at p. 585. 
 
 Non-user. — As to whether common of pasture is lost In- aban- 
 donment presumed from UoU-user, see ^Voolrvch on Eights of 
 Common, 154; Bracton, f. 223; Britton, 344; Anon., 3 Leon. 202; 
 Y. B. 13 Hen. VII., 13, pi. 3; Hall on Prof, a Pr. 339; Wingrove 
 Cooke on the Inclosure Acts, 4th ed., pp. 59 foil., citing Moore v. 
 Rawson, 3 B. & C. 339, and other cases: see the remark of How- 
 ard, J., in Y. B. 35 Ed. I., 449 (Rec. Pub.); and per Lord Sel- 
 borne, C, '■ Abandonment is a tei'm which has no legal meaning 
 as to an incorporeal hereditament: " Neill v. D. of Devonshire, 
 8 App. Cas. at pp. 154, 155. 
 
 Copyholders claim by c^lstom as to rights of common over the 
 wastes of their lord (jj); Foisfon y.'Crachroode, 4 Rep. 31 b; 
 Potter v. North, 1 Wms. Saund. 340; Hoskins v. Robins, 2 Wms. 
 Saund. 320; AVnis. on Comm. 17; but they prescribe in his name 
 for common in land belonging to a stranger: 22 H. 0, 51 ; Foiston 
 V. Crachroode, 4 Rep. 31b: Roberts v. Young, Hob. 280; S. C, 
 Browne, 172. A copyholder can claim only for beasts levant and 
 couchant on his tenement, or for some ascertained number; Mor-t 
 ley v. Clifford, 20 Ch. D. 753. 
 
 Stinted common (q). — There appears to be some doubt as to 
 the meaning of stinted common. In 3 Cruise, Dig. tit. xxiii., 
 Common,?,. 21, it is said tobe where the right of common is confined 
 to a particular time of the year. But the term is more ccMumonly 
 used in the sense of the right being limited to a tixed number of 
 beasts, as distinguished from beasts levant and couchant, 
 * Williams on Commons, 150. Sometimes the word [* 015 ] 
 " stint " is used for the right itself. Common appurte- 
 
 ( p ) This is an exception to the rnlc (sec supra) thiit profits a inoiidic can- 
 not be claimed by cnstoin. lint lormerly custom and ])rcscri])tiiin were 
 sometimes confused: see Fowler v. Dtile, Cro. El. HtJIJ; Litt. Ten. s. 170; Ilall 
 on Piof. a Vv. 108; Co. Litt. 113 b; 2 lil. Comm. 2(i3; Foislon v. Crachroode, 
 4 Kep. at '.',2 a. 
 
 (</) Sec Fitzherbcrt. Survey, c. 4. 
 
 35 INTEKPl{l!rrATIOiV OK DKKUS. 545
 
 *616 GLOSSARY. 
 
 nant may be stinted by the terms of the original grant, and com- 
 mon appendant may be stinted owing to by-laws to that effect 
 made by the commoners. See examples of stinted commons in 
 Ellard v. Hill, 1 Sid. 226; Morse & Webb's Case, 13 Rep. 65; 
 Palmer v. Stone, 2 Wils. 96; Hall v. Byron, 4 Ch. D. 667; Fox\. 
 Amhiirst, L. R. 20 Eq. at 408; Austin v. Amhurst, 1 Cb. D. 689; 
 see the by-law at p. 691. As to by-laws made for regulating com- 
 mons by inhabitants, see Co. Litt. 110 b; Warrick v. Queen's 
 College, L. R. 6 Ch. at p. 727. 
 
 Common by reason of vicinage: see "Wms. on Comm. 183; Hall, 
 Prof, a Pr. 285 sqq.; 2 Bl. Comm. 33: Commissioners of Seicers 
 V. Glasse, L. R. 19 Eq. 134 : Cape v. Scott, L. R. 9 Q. B. 269. 
 
 Common of Shack is the right of common in the arable com- 
 mon fields after harvest; Corbefs Case, 5 Rep. 5a; Williams on 
 Commons, 68. 
 
 lu Britton, liv, 2, ch. xxiv. (Vol. I., p. 371, ed. Nichols) it is 
 said: "Pasture likewise is a general name for herbage, acorns, 
 mast, and nuts, and for leaves and flowers, and for all things com- 
 prised under the name of pannage." In this passage, Britton 
 follows closely his predecessor Bracton (lib. 4, c. 38, fol. 222), 
 and Fleta, lib. 4, c. 19, is to the same efifect. 
 
 Pastura forinseca, p. intrinseca : See the passage cited by the 
 editor of the Domesd. of St. Paul's at p. cxxiii. (from Book I., 
 Archives of St. Paul's). "Item est in dicto manerio pastura 
 forinseca quae communis est ad parochiam . . . pastura in- 
 trinseca, sc. super terram warectam"(i. e., the former is on the 
 common waste of the manor, the latter on the arable common, 
 field when lying fallow). See Fitzherbert, Survey, c. 4. 
 
 See also Cattle -Gate; Hekbagidm; Vebtuea. 
 
 Pathway. — See Wat. 
 
 Perch. — See ante, Measures of Land. See also Spelm. Gloss, 
 s. v. Pertica. 
 
 Perquisites. — Profits arising to the Lord from his Court Baron 
 above the yearly revenue, such as fines in respect of 
 [*616] * copyholds; Perkins, 20, 21. Perquisitum is also used 
 in the sense of purchase. Spelm. Gloss, s. v. Perquisi- 
 tum; Bracton, lib. 2, c. 30 num. 3. 
 
 Picle, Pickel, Pightel, Pitle, Pigtle.— A little close; Spelm. 
 
 Gloss, s. V. Pictellum. 
 
 Pischary. — See Fishery. 
 
 Ploughland, or Carucate, or Carve. — See ante, Caeucate, 
 Hide, and Measures of Land. It is " as much as a plough can 
 546
 
 GLOSSARY. 
 
 617 
 
 till ;" Co. Litt. 5a ; which is " not of any certain extent ;" Co. 
 Litt. 09a. It may contain " houses, mills, pasture, meadow, wood, 
 &c.;" Co Litt. 86b. Laud can be demanded and therefore con- 
 veyed by these names. See Spelm. Gloss, s. v. Caiiia : 43 Ed. 3, 27. 
 
 Pool. — '• Doth consist of water and land, and therefore by the 
 name of pool (stagnum), the water and land shall pass ;" Co. 
 Litt. 5a, 5b-, Plowd. 154, 157. 
 
 Porca. — Sometimes used for selio, sometimes for balk; see Co. 
 Litt. 5b: Spelm. Gloss, s. v. Selio; Ducange, Gloss, s. v. 
 
 Pound. — See Co. Litt. 47c; mite, Park. 
 
 Precariae or Boonwork. — Special work done by a tenant at the 
 request of his lord, as distinguished from fixed services; Seebohm, 
 78; Spelm. Gloss, s. v. Precarice siccce are "boon days without 
 allowance of drink;" Domesd. of St. Paul's (Camd Soc), notes, 
 p. cxxiv. Precarice is also used in the sense of Benefices (feuds); 
 Palgrave, English Commonwealth, Vol. II., p. ccv. 
 
 Prime way. — See Wat. 
 
 Purliew " contains such grounds which H. 2, R. 1, or King 
 John added to their ancient forests over other men's grounds, 
 and which were disafforested by force of the Statute of Carta de 
 Foresta, cap. 1, and cap. 3, and the perambulations and grants 
 thereupon;" 4th Instit. 303. As to rights of common in 
 * respect to purliew, see Rex v. Inhabitants of Eodley, [ * 617 ] 
 Hardr. 437; Jenning v. Roche, Palm. 93. 
 
 Purpresture or Pourpresture, is properly when there is a 
 house builded on an enclosure made of any part of the king's 
 demesnes or of a highway, or of a common street or public water, 
 or such like public things; Co. Litt. 277 b; but it may be used 
 of inclosures made against a subject; 2nd Instit. 272; Spelm. 
 Gloss. s. V. Purprestura. The cases as to obstruction of High- 
 ways will be found collected in 7 Fisher, Dig. p. 656 tt seq. 
 
 Quadrantata terrae. — See ante, Measures or Land. 
 
 Quarentena trerae. — A furlong; Co. Litt. 5 b; Spelm. Gloss. 
 sub voc. It is also used in the secondary meaning of a furlong 
 or shot (a division in the common field); Seebohm, Eng. Till. 
 Comm. p. 4; and for that reason, we suppose, "some hold that 
 Vjy that name land may be demanded;" Co. Litt. 5 b. See ante, 
 Measures of Land. 
 
 Rectory. — Kectorv is taken to mean " integra ecclesia paro 
 
 547
 
 *618 GLOSSARY. 
 
 chialis cum omnibus suis juribus, prsediis, decimis, aliisquo pro- 
 ventuum speciebus: alias vulgo dictum beneiicium;" or it is talien 
 " pro mansione seu domicilio Rectoris, quae iu Rectoria sua in- 
 star capitis vel aulse est;" Spelm. Gloss, s. v. Rectoria. 
 
 •' Tiie term Rectory is not confined to one parish;'' per Bur- 
 rough, J., Howman & Others* 8 Taunt. G83. 
 
 "The word rectory comprehends the parish church, with all its 
 rights, glebes, tithes, and ether profits whatsoever;" 5 Cruise, 
 Dig. Tit. 35, Ch. 0, 8. 14, p. 134. 
 
 As to the distinction between a rector and a vicar at the present 
 day, see Cripps on the Law of the Church, p. 160. 
 
 Rents are divided into rent service, rent charge, and rent seek; 
 see these explained Co. Litt. 141 b, et seq. ; 2 Bl Comm. 41 et 
 seq. A power of distress was conferred by 4 Geo. 2, c. 28, s. 
 5, on the owner of a rent seek. Rent reserved on a 
 [ '" 618] '■' lease for years and incident to the reversion (see as to 
 leases after 1881, the C.A., 1881, s. 10) is rent service; 
 see Co. Litt. 142 b, 143 a. 
 
 Rents are also divided into: — 
 
 {1) Redditus assinus, or redditus assisce, rents of assise; i.e., 
 the certain rents of the freeholders and ancient copyholders, be- 
 cause they bo assised and certain, and doth distinguish the same 
 from redditus inobiles, farm rents for life, years, or at will, which 
 are variable and uncertain. (2) Redditus albi, white rents blanch 
 farmes, or rents vulgarly and commonly called quit rents; they 
 are called white rents because they were paid in silver, to dis 
 tinguish them from workdays {see ante, Pkecaeije), rent cummin, 
 rent corn, &c, And again, these are called (3) redditus nigri, 
 blackmail, that is black rents, to distinguish them from white 
 rents. (4) Redditus resoluti ho rents issuing out ol the manors, 
 &c., to other lords; 2nd Inst. 19. 
 
 Fee farm, properly taken, is when the lord upon the creation of 
 the tenancy reserve to himself and his heirs, either the rent for 
 which.it was before letten to farm, or at least a fourth part of 
 that farm rent. But Britton saith '/ee formes sount terres tenuz 
 en fee a rendre j)ur eux 2^ar an la verreye value, ou plus, ou meyns ;' 
 and is called a fee farm because a farm rent is reserved upon a 
 grant in fee. And Tegularly, as it appeareth by this Act (Magna 
 Charta, c. 27) lands granted in fee farm are holden in socage, 
 unless an express tenure by knight's service be reserved; 2nd 
 Inst. 44, See iSpelm. Gloss, s. v. Feodifirma. i 
 
 Rents of Assize payable by freeholders (2 Bl. Com. 43) and 
 rent-charges are popularly called chief rents. 
 
 Rack rent is rent of or approaching to the full annual value of 
 the property out of which it issues. 
 
 Fluctuating rent. — A rent may fluctuate in amount according 
 to events; Ex p. Voisey, 21 Ch. D. 442. 
 548
 
 GLOSSARY. * C20 
 
 A rent cannot be granted out of an incorporeal hereditament; 
 Co. Litt. 144a; except a reversion or remainder; Co. Lilt. 47a; 
 unless it be granted to the King, or to a subject by Statute; Cbitty, 
 Prerog. 20U; Burton, Coin p. &. 1051. 
 
 As to the proper method of creating a rent de novo 
 to be the * subject of a strict settlement, see Fearne, C. [ *019] 
 R., 529, note xii.; Co. Litt. 298a, and Butl. note (2). 
 
 The grantee in tail of a rent de novo, without a subsequent 
 limitation of it in fee, acquires by a desentailing assurance, only 
 a base fee determinable on his death without issue; but if there 
 is a limitation of it in foe after the limitation in tail he acquires 
 a fee simple; Smith v. Famabi/, Cart. 52; S. C, Sid. 285; 2 Keb. 
 29, 55, 84; 1 Lev. 144; Weekes v. Peach, Nek. Lutw. 384; S. C, 
 Salk. 577; Chaplin v. Chaplin, 3 P. Wms. 229; S. C, 2 Eq. Ca. 
 Ab. 384, 385. 
 
 Rent granted out of gavelkind or Borough English land is of 
 the same nature; per Fitzh. 14 H. 8, 7 B. (Query, does not this 
 mean rent servive, not rent-charge?) 
 
 See further as to rents, Burton, Comp. ch. G, s. 2; 1250 cfseqr. 
 
 Rents and Profits. — By the conveyance of the rents and profits 
 of land the land itself passes. See an<e. Herbage. 
 
 '• If a man seised of lands in fee by his deed granteth to 
 another the profit of those lands, to have and to hold to him and 
 his heirs, and maketh livery secundum formam cbaitic, the whole 
 land itself doth pass : for what is land but the profits thereof : 
 for thereby vesture, herbage, trees, mines, and all whatsoever p;ir- 
 cel of that land doth pass;" Co. Litt. 4 b; Shep. Touch. 9^ Seo 
 aiso 14 H. 8,G b, where it is stated that by the grant of the profits 
 of land, or vestura teiira>, the land itself passes. The rule appears 
 to be founded on the old feudal law : per Lord Cranworth, L.J., 
 Blann v. Bell, 2 De G. M. & G. 781. 
 
 But by the grant of rent incident to a reversion • the reversion 
 does not pass; Co. Litt. 151 b, 152 a. 
 
 As to charges on rents and profits, see anie, p. 370; and seo to 
 charges on annual rents and profits, seo ante, p. 380 et seq. 
 
 Apparently a lease of. '• the profits of a wood" does not au- 
 thorize the lessee to cut the trees, but only to take tho profits, as 
 pannage, herbage, &c. ; 4 Leon. 8, pi. 37. 
 
 Ridge.— A sclio; Co. Litt. 5 b; seo ante. Common Fields. 
 
 Selda. — A Salt pit; Co. Litt. 4 b. A window; Spelm. 
 * Gloss, sub voc. : but is it not rather a stall in a market [ -"^ G20 ] 
 or shop? 
 
 Selion. — By tho grant of a selion of land tho land passes. Co. 
 Litt. 5 b; Spelm. Gloss, sub voc. See ante, Common Fiells and 
 Measures of Land. 
 
 5-1 a
 
 * 621 GLOSSARY. 
 
 " Selliones " occur as parcels of land in Reg. Worcester Priory 
 (Camd. Soc), fol. 47 a, 49 a, 56 b. See Elton, Tenures of Kent, 
 « Sulyng," &c. 
 
 Sheepheaves. — Small plots of pasture often in the middle of 
 a waste .... the soil of which may or may not be in the lord, 
 but the pasture is certainly a private property, and is leased and 
 sold as such; " Cooke, Inclos. Acts, 44. 
 
 Soke. — A manor or Lordship; Spelm. Gloss, s. v. Soca. See 
 an example in Beauchamp v. Winn, L. R. 6 H. L. at p. 243. 
 
 Solidata terrae.^ — Twelve acres. See ante, Measures of Land. 
 
 Solinus. — Probably = 180 acres, or two hides of 90 acres each. 
 See Domesd. of St. Paul's (Camd. Soc), Introd. p. xiv., where it 
 is said to be apparently the same as the Kentish Sulung, as to 
 which see Elton, Tenures, of Kent. 
 
 Sollar. — The lower part of a house — a room; Spelm. Gloss, s. 
 V. Solarium. An upper room in a house. Properly, simply a 
 flooring; then applied to floors or stages in different parts of the 
 house. Wedgewood, Diet. Eng. Etmy. 
 
 Stallage and Pickage. — See Market. Stallage is the right 
 of putting up a stall in a fair or market, and also the money paid 
 to the owner of the soil for so doing; pickage is the right of 
 picking up the soil for that purpose, and the money paid to the 
 owner of the soil for so doing; Spelm. Gloss, s. v. Stallagium,: 
 Rex V. Maydenhead. Palmer, 76; S. C, 2 Rol. Rep. 155. See this 
 discussed in The Mayor of Yarmouth v. Chroom, 1 H. & C. 102. 
 
 These rights are incident to the soil, so that if the King grant 
 a market with certain toll to A. and his heirs, to be held in Bor- 
 ough English land, the heir at Common Law has the 
 [ * 621 ] * market and tolls, while the heir at Borough English 
 has the stallage and pickage : Heddy v. Welhouse, 
 Moore, 474. 
 
 Stallage and pickage may be claimed by grant or prescription: 
 see the cases cited in The King v. Maidenhead, 2 Rol. Rep. 155; 
 S. C, Palm. 76; or- by custom by the inhabitants of a borough 
 ( ? Vill): Ehcood v. Bullock, 6 Q. B. 383, by victuallers coming 
 to a fair holden at fixed times of the year in some part of the 
 commons and wastes of a manor to be named by the Lord: Tyson 
 V. Smith, 6 A. & E. 745, on app. 9 A. & E. 406. 
 
 Stallage may pass u'lder the word toll: Bennington v. Taylor, 
 Lurw. 488; Hickman's Case, 2 Rol. Ab. 123. 
 
 Stiche. — A selio; Spelm. Gloss, s. v. Selio. See ante, Commoh 
 Fields; Selion. 
 550
 
 GLOSSARY. * 622 
 
 Stint or Stinted Pasture.— See ante, Pastdeb. 
 Stray. — See Estray. 
 
 Tenement " is a large word to pass not only lands and other 
 inheritances which are holden, but also ofiSces, rents, commons, 
 profits apprender out of lands, and the like, wherein a man hath 
 any frank tenement, and whereof he is seised id dc libera tene- 
 inento. But luereditamenium, hereditament, is the largest word of 
 all in that kind: " Co. Litt. 6 a. 
 
 " Tenements. This is the only word which the statute of W. 
 ■-', that created estates tail, useth: and it includeth not only all 
 corporate inheritances, which are or may be holden, but also all 
 inheritances issuing out of any of those inheritances, or concern- 
 ing or annexed to or exercisable within the same, though they lie 
 ngt in tenure; therefore all these without question may be' en- 
 tailed. As rents, estovers, commons, or other profits whatsoever 
 granted out of land; or uses, offices, dignities, which concern 
 lands or certain places, may be entailed within tne said statute, 
 because all these savour of the realty;" Co. Litt. 19 b. 
 
 See as to the effect of creating a title of honour without refer- 
 ence to a place. Creation of Baronets, 12 Eep. 81; NeviVs Case, 
 7 Rep. 33 a; Co. Litt. 20 a, note (3). 
 
 * Tenement " doth not comprehend a personal annuity [ * G22 ] 
 in fee, and an annuity for life is neither a tenement or 
 hereditament; and an office for life is a tenement, and not a here- 
 ditament;" Shep. Touch. 91. 
 
 Tenement, within 8 Hen. 6. c. 7, includes a rentcharge granted 
 by deed without power of distress; Dodds v. Thomjison, L. R. 1 
 C. P. 133. 
 
 See as to the meaning of " tenement," Yorkshire Insurance Co. 
 V. Clayton, 8 Q. B. D. 421 {per Jessel, M.R., at p. 423), where it 
 was held that the word in an Act of Parliament meant " what is 
 in law a house, though it is in fact part of a house." 
 
 "I do not conceive that any running power could be the sub- 
 ject of tenure:" per Jessel, M.R., Great Western Kail. Co. v. 
 Swindon, &c.. Rail. Co., 22 Ch. Div. 677, at p. G97. 
 
 " That is to say " is the commencement of an ancillary clause 
 which explains the meaning of the principle clause. It has the 
 following properties: — (1) it must not be contrary to the princi- 
 pal clause; (2) it must neither increase nor diminish it; (3) but 
 where the principal clause is general in ternis, it may restrict it: 
 see this explained, with many examples, Stukcly v. Butler, Hob. 
 171; and see an exami)le, Harrirujton v. Pole, Dy. 77 b, pi. 38. 
 
 Toft, is the place where a house has been, but now there ia 
 none, and the site of the house can be seen, and by this name it 
 
 651
 
 * G23 GLOSSARY, 
 
 will pass iQ a grant; 21 Ed. 4, 52, PL 15; She-p. Touch. 95. Spel- 
 tnan says that the house must have been in the country; sec 
 Gloss, s. V. Toftmannus. As to whether common of pasture can 
 
 belong to a toft, see Abbot of v. Benteleyc, 35 Ed. 1, 495, 
 
 Rec. Pub. (r). 
 
 Toil to the Fair or Market, "is a reasonable sum of money 
 due to the owner of the fair or market upon sale of 
 [*623] * things tollable within the fair or market, or to the 
 owner of the soil for stallage, piccage, or the like;" 
 2nd Instit. 220; see ante., Stallage. The owner of the fair or 
 market has no right to toll unless under the king's grant, or by 
 prescription; and if the toll be unreasonable, the grant will be 
 void; 2nd Instit. 220; Heddij v. Wheclhouse, Cro. El. 558. See 
 more about tolls, Jehu Webb^s Case, 8 Rep. 40 b; Spelm. Gloss, 
 s. v. Toil; Gunning on Tolls. The grant of a market or fair 
 " cam omnibus libertatibus et Uberis consuetudinibus ad Imjusmodz 
 mercatum et feriam pertinentibus''^ does not give a right to take 
 toll; Egre^nont v. Saul, 6 Ad. & El. 924; Osbiiston v. Jatnes, 
 Lutw. 442; The King v. Maidenhead, 2 Rol. Rep. 155; Uolloicay 
 V. Smith, Stra. 1171. All the cases are discussed in Stamford v. 
 Pawleft. 1 Cr. & Jerv. 57. 
 
 On the other band, "if a man has a fair or market by grant 
 or prescription, whereto toil hath been usually paid, which after- 
 wards is forfeited to- the king, and the king then grants it cum 
 omnibus libertatibus ad Imjusmodi feriam specfantibus ; ))y this 
 grant the grantee shall have toll, for toll was formerly belonging 
 thereto;" Heddy v. Wheelhouse, Ci'o, El. at p, 592. See antCy 
 Fkanchjses. 
 
 Toil Traverse «nd Thorougll Toll, and often confounded. 
 ThorougJt toll is where toll is taken of men for passing through 
 a vill in the high street; or over a bridge; Heshord v. Wills, 1 
 Sid. 454; or a navigable river; Mayor, &c., of Nottingham v. 
 Lambert, Willes, 111. Toll traverse is where a man pays certain 
 toll for passing over the soil of another man in a way not a high 
 street; 22 Lib. Ass. pi. 58; and botK sorts of toll may be claimed 
 in respect of animals. 
 
 It appears very doubtful whether Toll thorough can be claimed 
 by prescription, unless the person claiming is bound to repair 
 the road; Smith v. Shepherd, Cro. El. 710; S. C, differently re- 
 ported. Moor. 574; Truman v. Walsliam, 2 Wills. 296; Hex v. 
 Corporation of Boston, W, Jo. 162. See also Warington v. Mose- 
 
 (r) The Tfec. Ed. translates "licet tofti inernt terra" — ". although tho 
 tofts ^vere land;" sed tin. translate ''althonjih there had been land '^f tho 
 toft," i.e. , arable land held Avith it, or, "although the tofts had formerly 
 been arable land." Qu. read fucrat, i.e., fuerant. 
 
 552
 
 GLOSSARY. * G25 
 
 Ze?/, Comb. 295. And the duty of repairinjT somo of the streets 
 of a town is not iufficient consideration to support a claim of toll 
 thorough, through all the streets of the town; Brett v. Beales, 10 
 B. & C. 508. 
 
 '•'■■ Toll traverse can be claimed by prescription of a per- [ * 624 ] 
 son passing over a public highway, if it can be shown 
 that the rights of passing over the soil and of taking the toll are 
 both immemorial, and that the soil and the tolls were before the 
 time of legal memory in the same hands; Pclhum v. Pickersgill, 
 1 T. R. 660; also a lawful origin for the toll may be presunied 
 within the time of legal memory by means of a dedication of 
 the road to the public, and a contemporaneous reservation of toll; 
 Laurence v. Hitch, L. R. 3 Q. B. 521. 
 
 Toll thorough and Toll traverse can be appurtenant to a manor; 
 James v. Johnson, 2 Mod. 143. 
 
 See Gunning on Tolls. 
 
 Township: Vill.— (See anfe, p. 168, note, as to the distinc- 
 tion between vill and parish). The reader is referred to Stubbs' 
 Constit. Hist, for a discussion of the modern theories as to the 
 meaning of Township. Mr. Seebohm (Eng. Vill. Comm. pp. 
 126, 254), following Spelman (Gloss, s. v. Fz'ZZa) and Fitzherbert 
 on Surveying, considers a vill and a manor to have been origin- 
 ally the same; see Ellis, Introd. Domesd., vol. 1, p. 240, cilcd 
 ante, s. v. Manor. See also Co. Litt. 115 b; Williams on Com- 
 mons, passim; Digby, Hist. Rea^ P. 3rd ed. 43, et seq. : Maine, 
 Village Communities. Lectures III. and V., and Early Law and 
 Custom, cited ante. Manor; and some remarks in Wms. on Ro.-il 
 P., Appendix C. ; Palgrave, Eng. Commonwealth, Vol. I., p. 65. 
 
 " This word ' village ' or ' town ' is of large extent, and by a 
 grant of it a manor (Co. Litt. 5 a), land, meadow, and pasture, 
 and divers such like things may pass;" Shep. Touch. 92 a. "And 
 by the name of a manor, divers towns may pass;" Co. Litt. 5 a; 
 see 58 a. Madox says (Firma Burgi, ch. 1, sect. 5, pp. 4, 14), 
 "From the time of the Norman Conquest downwards, the cities 
 and towns of England were vested either in the crown, or else in 
 the clergy; or in the baronage or great men of the layoty. That 
 is to say, the King was immediate lord of somo towns, and 
 particular persons, either of the clergy or layety, were immediate 
 lords of other towns. . . . When the King was seised of a city 
 or town in demeane, ho had a compleat seisin of it with 
 all its parts and * adjuncts. He was lord of the soil, to [ * 625] 
 wit, of all the land within the site and precinct of the 
 town . . . the herbage and productions of the earth. . . . But 
 sometimes the Crown thought fit to grant some part of a city or 
 town, or some profit or appurtenant thereof,. to a private n)an or 
 to a religious house. By which means it sometimes came to pass 
 
 553
 
 * 626 GLOSSARY. 
 
 thai; the property of a city or town was divided (s) into a half, 
 a third, or other part or parts." * 
 
 The division of the kingdom into counties, hundreds, and tith- 
 ino-s, towns, or vills, and the nature of the latter, are explained 
 by Blackstone (Comm. vol. i. pp. 113, 114). 
 
 Fortescue (de Laud. c. 24, temp. Hen. VI.) says that Hun- 
 dreds are divided into villae, which include boroughs and cities; 
 and he adds, '* Villarum metae non muris aedificiis aut stratis 
 terminantur, sed agrorum ambitibus, territoriis magnis, hamiletis 
 quibusdam et multis aliis, sicut aquarum boscorum et vastorum 
 terminis " (a passage which points to the waste or common of the 
 viU). 
 
 See also Bracton, lib. iv. c. 31, fol. 211; ib., lib. v. c. 27, fol. 
 434 (Rolls Series, ed. Twiss, vol. iii. p. 394; vol. vi. p. 428). In 
 the former passage, Bracton distinguishes between a " mansio " 
 and a " villa," and says that a villa must consist of more than one 
 "aedificium." He also observes (fol. 212) that a manor (mane- 
 rium) may comprise several adjoining buildings, or vills and 
 hamlets adjacent. " Poterit enim esse manerium et per 
 [ * 626 ] se, et cum pluribus villis, et cum * pluribus hamlettis 
 adjacentibus, quorum nullum dici poterit manerium per 
 se, sed villae [qu. villa] sive hamletta. Poterit etiam esse per se 
 manerium capitale et plura continere sub se maneria non capitalia 
 et plures villas et plures hamlettas quasi sub uno capite et dom- 
 inio uno." 
 
 In the latter passage (fol. 434a), Bracton distinguishes "mansio," 
 "villa," and "manerium." He says a "mansio" may consist of 
 one house or of several; but if of one only, it will not be a vill, for 
 a vill is made up of several mansiones (Co. Litt. 115b, adopts 
 this); and a manor may comprise several vills (Co. Litt. 125b), 
 or one only. Several tenements may pertain to a mansio. Like- 
 wise, sometimes a manor is in a vill [qy. i. e., the vill is more ex- 
 tensive than the manor]; and where there is only one villa in a 
 manor, the same name may be applied to both, and tenements 
 
 (s) The "lord of the vill" is frequently mentioned in the Year Books. 
 See Williams on Commons, p. 50, and add to the references there given Y. 
 B. 22 Ed. I. 589. Rec. Pub., 30 Ed. I. 17, Rec. Pub., 32 Ed. I. 23, Rec. Pub., 
 
 Filz- Alien v. Boyei; 32 Ed. I. 271, Ree. Pub., Abbot of v. Benteleye, 35 Ed. 
 
 I. 495, Rec. Pub. In many cases there were two or more lords. See e.g., 
 Maltaient v. Eomyley, 32 Ed. I. 227, Rec. Pub., Elcrdiby v. Mmicorenant, 32 
 Ed. I. 505, Rec. Pub., 33 Ed. I. 220, Rec. Pub., Bract. 229, ct seq. An ex- 
 ample ot this will be found in the Hundred Rolls (Vol. 2, p. 253, Rec. Ed.) 
 in the case of the vill of Little Shelford, cited oiitc, p. 611. So Seaford (ap- 
 parently the vill of Seaford) contained four manors, 7 Sussex Archaeol. 121; 
 and in the vill of Darsham there were at Domesrlay six lordships, which 
 afterwards became consolidated into the four manors existing there at the 
 present day: Suckling's Hi.st. Suffolk, Vol. 2. p. 220. 
 
 Query, whether in cases where there are several manors in the same vill, 
 the freehold of the soil of the waste is in the Crown; or the lords are tenants 
 in common of the waste, as in Lord Berkeley's Case, Sav. 61, pi. 132. 
 
 554
 
 GLOSSARY. * 627 
 
 may be described as lying in the manor of A., or the vill of A., 
 indifferently, because the name of the vill is the name of the 
 manor, and e contrario. [This appears to be the meaning of the 
 passage]. He goes on to say that there cannot be several manors 
 in one vill; for the manor contains the vill but not e converso. 
 But Britton, liv. ii. c. 19, fol. 129b (vol. i. p. 333, ed. Nichols), 
 says, "En une vile porrount estre plusours paroches et en uue 
 paroche plusours maners, et hamlets plusours porrount apendre 
 a un maner." Croke, C. J., speaks of two 'nanors in one town; 
 Whittier v. Stockman, 2 Bulst. at p. 87. 
 
 Fleta, lib. i., c. 24, refers to "campestres villae," as distin- 
 guished from "burgi;" and in lib. 4, c. 15, s. 9, to the relation 
 between manors, vills, hamlets, and parishes. And see Fleta, lib. 
 vi. c. 51, s. 1. 
 
 The meaning of " village " was much discussed in Waterpark 
 V. Fennell, 7 H. L. C. 650; and see Anon., 12 Mod. pi. 912; R. 
 V. Showier, 3 Burr. 1391; K v. Horton, 1 T. R. 374. 
 
 "Every borough is a town, but not e converso;''' Litt. s. 171. 
 Sometimes dena or denna signifieth, as villa and denne, a town; 
 Co. Litt. 4b. 
 
 A list of all the townships will be found in Spelman's " Villare 
 Anglicum." 
 
 Trees.— See Hall on Profits a Prendre, 33, 101 ; Craig 
 on * Trees and Woods. As to the right to windfalls as [ *627 ] 
 between executor and heir or devisee, see Re Ainslie, 28 
 Ch. D. 89; and as between tenant for life and remainderman, see 
 Be Harrison's Trusts', 28 Ch. D. 220. 
 
 Turbary. — Common of Turbary is a right to dig turves (i.e., 
 peat, not green turf) in another man's land, or in the lord's 
 waste, for fuel to burn in the house; and therefore it is appen- 
 dant or appurtenant to a house only and not to land; 5 Assis. 9; 
 Tyrringham's Case, 4 Rep. at 36 b; S. C, Tudor, L. C. R. P. ; a Hare 
 V. B'ahy, 10 Ir. C. L. Rep. 318. It cannot be dug for sale; 
 Valentine v. Penny, Noy, 145; Hayicard\. Cannington, 1 Sid. 354; 
 S. C, 1 Lev. 232; 2 Keb. 290, 311. And it does uot give a right 
 to take green turf for making grass plots, or repairing the hedges 
 or fences of a garden ; Wilsoti v. Willes, 7 East. 121; Williamson 
 Cornm. 187. Common of Turbary appurtenant to a house passes 
 by a grant of the house with the appurtenances; Sohnev. Bullock, 
 3 Lev. 165 (t). 
 
 Semble, the lord cannot approve against common of turbary, 
 either at common law or under the Statute of Merton; AVms. on 
 Comm. 137; Nicholls v. Mil ford, 20 Ch. D. 380; unless there is 
 a custom to do so; Arlett v. Ellis, 7 B. & C. 340: Lascelles v. Lord 
 
 {t) See as to conveyances alter 1881, theC. A. 1881, s. G. 
 
 555
 
 *628 GLOSSARY. 
 
 Onslow, 2 Q. B. D. 433; Digby, Hist. Real P., p. 157, citing Coke, 
 2nd Instit. 87. 
 
 See Spelman, Gloss, s. v. Turha; Williams on Commons, 
 passmi. 
 
 The right to dig and pare turf was distinguished in 32 Ed. I., 
 40 (Rolls Series, Y. B.). 
 
 Utland. — Tenemental land; Spelm. Gloss, s. v. ^Inland. 
 
 Velindre.— Welsh fox vill; 4 T. R. 552, note (6). 
 
 Vert, " Viridis, or Green hue, a viridirate. The French 
 calleth it verd, we vert, whatsoever beareth green leaf, but spe- 
 cially of great and thick coverts. And vert is of divers kinds, 
 some that beareth fruit that may serve as well for food of men 
 as of beasts, as pear trees, chestnut trees, apple trees, 
 [ * G28 ] *service trees, nut trees, crab trees, and for the shelter and 
 defence of the same : some called haut-boys, serving for 
 food and browse of and for the game, and for the defence of tiiem, 
 as oaks, breeches, &c. Some haut boys, for browse and shelter 
 and defence only, as ashes, poples, «&c. Of sub-boys, some for 
 browse and food of the game, and for shelter and defence, as 
 maples, &c.; some for browse and defence, as birch, sallow, wil- 
 low, &c. ; some for shelter and defence only, as alder, elder, &c. 
 Of bushes and other vegetables, some for food and shelter, as the 
 hawthorn, blackthorn, &c. ; some for hiding and shelter, as brakes, 
 gorse, heath, &c. To sum up all, plantarum tria stmt genera : 
 arbores, arborescentes, and herbce. Arbores, as hautboys and sub- 
 boys; arborescentes, as bushes, brakes, &c. ; herbce, as herbs and 
 weeds, which, albeit they be green, yet our legall viridis extendeth 
 not to tbera;" 4th Instit. 317. 
 
 See also Spelm. Gloss, s. vv. Verd, Veride, where it is said that 
 vert is used in two meanings : (1) for the right of cutting fire- 
 wood iu a forest granted by the king; (2) for the right of de- 
 pasturing animals in the forest. Spelman gives an instance of a 
 grant '■'•tarn de viridi quam de sicco.^' 
 
 And see per Bacon, V.-C, Earl de la Warr v. Miles, 17 Ch. D. 
 at p. 570. 
 
 Viil. — See Tovvnship. 
 
 Virgate or Yardland. — See ante, Common Fields, and I^Ieas- 
 UEES OF Land. 
 
 Vivarium is a word of largo extent, and ex vi termini signi- 
 fieth a place in land or water where living things be kept. Most 
 commonly iu law it signifieth parks, warrens, and pischaries, or 
 fishings; '2Dd Inst. 100; or a stew; 2nd Inst, 162. See Speln^. 
 Gloss, sub voc. 
 556
 
 GLOSSARY. * G30 
 
 Viver or Vivier. — A fishpond; 2iid Inst. 199. 
 
 Warectum,Wareccum, or Varectum '-doth signify fallow;" 
 Co. Lit. 5b. "Terra neglecta vcl din mculta;" Spelm. Gloss. 
 ^iib voc. 
 
 * Warren or Free Warren is a franchise to have [ * G29 ] 
 aud keep certain wild beasts and fowls called game 
 within the precincts of a manor or other known place; Vv'illiama 
 on Commons, 238, where the form of grant of free warren by the 
 Crown is given. See also Spelin. Gloss, s. v. Warenna. See the 
 cases as to the creation of warrens collected in 2 Bro. Ab. War- 
 ren, and 2 Roll. Ab. Warren. 
 
 Though a warren may by prescription appertain to a manor, 
 yet where the lord of a manor has also a warren in gross in the 
 same manor, the warren does not pass by a feoffment of the manor; 
 Dy. 30 b, pi. 209; nor by a grant of the manor " with all warrens, 
 &c., thereto appertaining or accepted or reputed as part of the 
 manor;" Boivlsfon v. Hardij, Cro. El. 547. See also Morris v. 
 Dimes, 1 Ad. & El. 654. On the other hand, where tho owner of 
 the manor has warren in another man's land appurtenant to his 
 manor, it passes by a conveyance of the manor with tho appur- 
 tenances; but not by a grant of tho manor alone; Stile v. Tewkes- 
 bnry, 8 Hen. 7, 4 B. See other cases as to when a warren passes, 
 Vin. Abr. s. v. Warren. 
 
 Although tho word '• warren " is, strictly speaking, a])propri- 
 ated to the franchise, it is sometimes used in the secondary sense 
 of the land over which that franchise is exercisable. Theprin 
 cipal authorities for construing tho word " warren" to mean thn 
 land are Co. Litt. ob, and the dicta of Coke in Rice v. Wiseman, 
 3 Bills. 82; S. C. 1 Rol. Rep. 259; in both which places Coke 
 seems to have thought that a conveyance of a warren in a man's 
 own land would necessarily pass the land; but these authorities 
 are said by Lord Chelmsford, in Earl Beauchamp v. Wi)m, L. 
 R. H. L. 238, on app. from L. R. 4 Ch. 5G2, not to be very con- 
 vincing. 
 
 In JEarl Beauchamp v. Winn, the words " warren of conies " 
 were held not to pass tho laud; while in Robinson v. Duleep Singh, 
 11 'Ch. D. 798, the words '"all that warren of conies in L.," were, 
 under the circumstances, held to pass tho land. 
 
 As to what are beasts and birds of tho warren, see Co. Litt 
 233a; Devonshire v. Lodge, 7 B. & C. 36. 
 
 Water. — If a man grant aqnam snam, tho soil shall 
 not * pass, but tho pischary within tho water passeth [*630 1 
 therewith; and land covered with water shall be demand- 
 ed by the name of ho many acres a(fnd co opertas; Co. Litt. 4b; 
 Challenor v. Thomas, Yelv. 143; S. C. 1 Brownl. 142. 
 
 557
 
 *631 GLOSSARY. 
 
 Way. — "There be three kinde of wayes, whereof you shall 
 reade in our ancient bookes. First, a foot- way, which is called 
 iter, quod est jus eundi vel ambulandi hominis ; and this was the 
 first way. 
 
 " The second is a foot' way and horse way, which is called 
 actus, ab agendo; and this vulgarly is called packe and prime way, 
 because it is both a foot way, which was the Urst or prime way, 
 and a packe or drift way also. 
 
 " The third is via or aditus, which contains the other two, and 
 also a cart way, &c., for this is jus eundi vehendi, et vehiculum et 
 jumentum ducendi : and this is twofold, viz., regia via, the king's 
 highway for all men, et comviunis strata, belonging to a city or 
 towne, or betweene neighbours and neighbours. This is called 
 in our bookes chimen, being a French word for a way, whereof 
 commeth chiminage, chiminagium, or chimmagium,, which signi- 
 fieth a toll due by custome for having a way through a forest; and 
 in ancient records it is sometime also called pedagiuyn;" Co. 
 Litt. 5Ga. 
 
 There is another kind of way not included in the above divi- 
 sion, viz., a drift way or way for driving cattle, which is not ne- 
 cessarily included in a carriage or horse way; Ballard v. Dyson, 
 
 I Taunt. 279. 
 
 A right of way of either nature may exist for certain purposes 
 only; Cotvling v. Higginson, 4 M. & W. 245; Brunton v. Ball, 1 
 Q. B. 792; Wimbledon, &c. v. Dixon, 1 Ch. D. 362; Bradburne 
 v. Morris, 3 Ch. D. 812. 
 
 A right of way may be created by a covenant hy the owner of 
 the servient tenement that the owner of the dominant tenement 
 shall enjoy it; Holmes v. Seller, 3 Lev. 305. As to when a right 
 of way passes by the conveyance of the dominant tenement, see 
 ante. Chap. XIII., p. 186, et seq. 
 
 Wike. — A farm. Co. Litt. 5a. 
 
 Wista.— Half a hide. Great wista, abide; Seebohm, 
 [ *681] Eng. * Vill. Comm. 51; Spelm. Gloss, subvoc, where it 
 is said that Wista is sometimes used for Virgate. 
 
 Wood : BOSCUS : contains timber or hautboys and underwood 
 or subboscus; see ante, Verd. Both the trees and the soil on 
 which they stand pass by the grant of a wood or boscus; Co. 
 Litt. 4b. In like manner, by an exception in a lease of the woods 
 and underwoods growing or being on the property demised, the 
 soil itself on which they grow is excepted; /ue's Case, 5 Rep. 11a. 
 Hide V. Whistler, Pop. 146; Whistler v. Paston, Cro. Jac. 487. 
 On the other hand, by an exception of "trees" (Liford's Case, 
 
 II Rep. 46b), "saleable underwoods" now growing on the pre- 
 mises (Pincombe v. Thomas, Cro. Jac. 524), the soil itself is not 
 
 •558
 
 GLOSSARY. * 631 
 
 excepted. See Glover v. Andretv, 1 And. 7. See this discussed 
 in 14 Hen. 8. 1, pi. 1; Cage and PaxUn's Case, 1 Leon. 116. See 
 on all the above cases Dy. 19a, pi. 110, and the cases there cited. 
 See ante, Trees. 
 
 Yardland.— Land may pass by the name of a yardland; Co. 
 Litt. 5a. As to the meaning of yardland, see ante, Common, 
 Fields; Measures of Land ; Spelm. Gloss, s. v. Virgate. Nasse, 
 Agric. Comm. (trans. Ouvry), p. 9; Williams, R. P., App. C. 
 
 Yoke. — Used for yardland in Kent 
 
 559
 
 
 (5SG)
 
 INDEX. 
 
 [The paging refers to the (•] pages.] 
 
 ABATEMENT, 557, 570 
 
 ACCIDENT, 
 
 deed not binding on ground of, 5 
 
 ACCRUED SHARES, 
 
 cross remainders of, 289 
 
 ACCRUER, 
 
 not implied, 388 
 
 ACRE, 
 
 domesday, 596, 597 
 customary, 599 
 
 whether contract for sale bv, is lawful, 568 
 statute, 602 
 Irish, 599 
 Scotch, 599 
 land may pass by word, .557 
 
 ACREAGE, 
 
 of parcels, wrongly stated, rejected, 165, 16 
 
 ACT OF PARLIAMENT, 
 
 as evidence of meaning of words, 53 
 legal terms in, evidence as to, 62 
 meaning of word defined by, 65 
 contcmporanca expositio applied to, 68 
 debutes not looked at to construe, 68 
 construed by modern usage, 70, n. 
 ejusdem generis rule applied to, 177 
 
 ACTS, 
 
 "reasonable," meaning of, 493 
 
 of parties, not evidence to construe deed {see Condttct) 
 
 ADDITION. 
 
 false, to parties, 127 
 
 to parcels, 157, et seq. 
 
 ADDITIONAL- TERMS, 
 implied by usage, 9 
 
 AD.IOINING TENEMENTS, 
 
 grant of one of (.see Easements, Ways) 
 
 ADMINISTRATOR {see Executor) 
 
 ADMISSIONS, 
 
 suhse(|uent, nof allowed lo contradict, vary, or add to deed, 8 
 
 of del)ts, by deed, may operate, .xs covenants to pay, 1 13, 118 
 
 36 INTEUI'RETATION OK DEEDS. 561
 
 634 INDEX. 
 
 [The paging refers to the [•] pages.] 
 ADVANTAGE, 
 
 meaning of, 558 
 
 ADVOWSON, OR ADVOCATION, 
 meaning of, 558 
 by what words it passes, 558 
 does not pass appropriation, 561 
 to what it may be appendant, 558 
 
 when it passes by grant of principal, 187, 212, 213, 558 
 crown grants of, 559 ' 
 
 the, of half the church, and half the, of the church distinguished, 559 
 
 AFFRI, 561 
 
 AFTER- ACQUIRED PROPERTY (see Covenants to Settle) 
 assignment of when construed as covenant, 408 
 when not, 528 
 
 AGELLUS, AGELLULUS, 559 
 
 AGER, 559 
 
 AGREEMENT. 
 
 contemporaneous with, not admitted to explain, deed, 4 
 not under seal sometimes called covenant, 407 
 under seal, amounts to covenant, 411, 425 
 
 to execute deed which ought to contain covenanfcj, 425 (Rule 153) 
 for lease, construction of. in favour of lessee, 97 
 effect of, in creating specialty debt, 425 
 when construed as lease, 45 
 for mortgage, effect of, 425 
 for sale, void for uncertainty of subject-matter, 105 
 
 accompanied with payment of purchase-money, 132 
 recital of, inconsistent with operative part, 129, 132 
 
 AGREEMENT AND DECLARATION, 426 (Rule 155), 501, 502 
 
 ALIENS. 
 
 becoming entitled to land under covenant to settle, 556 
 
 ALL ESTATE, 
 
 clause, 204, et seq. 
 
 whether redeemed land tax. tithes, right of entry pass by, 209 
 conveyance of, for value, 204 (Rule 60) 
 
 " ALL OTHER THE, ' ' 174, ei seq. See EJUSDEM GENERIS. 
 
 ALLODIUM, 559 
 
 ALLOTMENT, 
 
 whether passes by general words, 204 
 
 ALTARAGIUM, 560 . 
 
 ALTERATIONS, 
 
 in deeds, presumption as to time of, 17 (Rule 4) 
 printed deed altered in writing, 18 
 ' pencil, 18 
 
 material, defined, 19 
 
 by party, effect of 19 (Rule 5) 
 
 by plaintiff or defendant, where deed evidence for him, 19, 23 
 
 in bonds, policies, 21 
 
 in guarantee, bill of exchange, bank note, 23 
 
 with consent of all parties, 25 
 
 fresh execution after, presumption as to, 27 
 
 562
 
 INDEX. 035 
 
 [The paging refers to the [•] pages. ] 
 ALTERATIONS— coH//H((rrf. 
 
 iu deeds, material, ne^s• stamp required. 27 
 
 after some of the parties have executed. 27. 28 
 by stranger, 31 
 immaterial, :>2, etseq., (Kule 6), and 33 
 fraudulent, 33 
 by accident or mistake, 34 (Eule 7) 
 
 AMBIGUITY, 
 
 in operative part explained by recitals, 129, 130, 132 (Rule 37) 
 
 " " usage, 74 
 
 Latent, or Equivocation, defined, 103 
 how discovered, 107 
 distinguished from inaccuracy, 103, 114 
 evidence, extrinsic or intrinsic, to clear up. 107 
 
 intrinsic, to determine person or thingdcscribed by, 107( Rule 24) 
 direct, of intention, to resolve, 108 (Rule 25). See Dikect Evi- 
 PEXCE OF IXTENTIOX. 
 rules as to, given by AVigram, Y.-C, 111 
 Patent, defined and explained, lO'J. 104 
 
 arising from inaccurate description, 116 
 
 not cleared ui>, makes deed or clause void for uncertainty, 104 
 
 (Rule 23) 
 evidence, admissible to clear up, 104 
 
 direct, of intention, not admissible, 112 (Rule 26) 
 determined by election of grantee, 105 
 
 AMBIGUOUS AVORDS, 
 
 construed against person using them, 425 (Rule 154). See Grantee. 
 
 AMERCIAMENT, 560, 564 
 
 ANCIENT DEMESNE, 560 
 
 ANCIENT DOCUMENTS (Evidence to Constkue), 
 of conduct, 9, 66, et seq. 
 circumstances, 52 
 
 contemjx)raneous interpretation, 66, et seq. 
 usage, 68 (Rule 15), et acq. 
 modern, 71 
 
 " AND ALL OTHER," or " AND ALSO," 
 
 general description introduced by, 173 (Rule 46) 
 
 ANNAT or ANNATE, 560 
 
 ANNUITY, 
 
 where charged on income only, 175, 381 
 
 out of rents and jjrolits, when a charge on corpus, 1580 
 
 grants of, construction of covenants in, 440, 441, 443 
 
 ANTICIPATION, RESTRAINT ON. .See Restkaixt on Anticipation. 
 
 APPARENT EASEMENTS, 189. See Easement.s. 
 
 APPENDANT, 
 
 distinguished from appurtenant, 187, 608 et seq. 
 
 things, to parcels, pass without express words, 186 (Rule 50) 
 
 what are, 187, 188 
 advow.son, to manor, 187, 213, 558 
 
 tenement. 559 
 common, to arable land, 187. 609 
 
 estovers, lo house, 187 
 forest, to honour, 580 
 
 563
 
 636 INDEX. 
 
 [The paging refers to the L'] pages.] 
 "APPERTAINING," 
 
 construed as " usually occupied with " parcels, 77 
 will uot recreate extinguished easements, 195 
 
 APPOINTMENT, 
 
 power of, execution of instrument exercising, 1, n. 
 
 deed of, construed as grant, 42 
 
 effected by deed not referring to power, 45, 46 
 
 by feoffment, recital, lease and release, &c., 46, 144 
 where donee of power has also an interest, 46 
 operation of rule in Shelley^s Case, 243 
 implied gift to objects of power in default ot appointment, 363 (Rnle 142) 
 
 where objects of power are to be alive at a future time, 364 
 
 where only survivors take, 364 
 
 where power is testamentary only, 365 
 
 creates tenancy in common, 365 
 
 APPORTIONMENT OF RENT, 
 
 up to purchase, parol evidence of agreement for, not admitted after con- 
 veyance, 4 
 
 APPRENTICE, 
 
 covenants by or with, whether dependent, 462 
 
 APPROPRIATION, 561 
 
 APPROVExMENT, 561 
 
 APPURTENANCES, 
 meaning of. 183 
 
 distinguished from things appendant, 187 
 pass without express words, 186 (Rule 50), et seq. 
 garden, or ways, to house, 8, 187 
 common, estovers, or turbary, created by grant, 187 
 common appurtenant, revivor of, 203 (Rule 59) 
 
 created by grant or prescription, 612 
 right to use a wall, 213 
 
 may mean things usually enjoyed with parcels, 188 (Rule 51) 
 construed more strictly in deeds than in wills, 189 
 
 ARBITR \TION, 
 
 agreements for, when conditions precedent, 457 
 
 ARMORIAL BEARINGS, 
 
 grant of, to A. and his heirs male, 231 
 
 ARTICLES OF ASSOCIATION, 
 read to explain memorandum, 7 
 
 ARTICLES ON MARRIAGE. See Marriage Articles. 
 
 "AS COUNSEL SHALL ADVISE," 493, 533 (Rule 189) 
 
 ASSART, 561 
 
 "ASSIGN," 
 
 words, whether effectual to revive merged term, 45 
 
 ASSIGNMENT, 
 
 cancelled, effect of, 24 
 covenant construed as, 44, 408 
 
 implied by, 424 
 of future property, 528 
 
 construed as covenant, 408 
 by executor, of " his " goods and chattels, 207 
 
 564
 
 INDEX. 637 
 
 [The paging refers to the [•) pages.] 
 "ASSIGNS," 
 
 implied by law, 85 
 rent reserved to, 85 
 hereditaments limited to A. and his, 224 
 
 ATTESTATION 
 of deed.s, 1, n. 
 clause, effect of, 1, n. 
 omission of word "signed " in, 1, n. 
 
 AUMONE, 561 
 
 AVERAGE, 561 
 
 AVERAGIUM, 561 
 
 AVERII, 561 
 
 "AVERMENT," 
 
 meaning of, 105, n. 
 
 AVERUM, 561 
 
 AWARD. 
 
 inclo.sure, ambiguous, evidence of acts of owners, 67 
 
 BALK, 562, 567 
 
 presumption as to ownership of, .562 
 
 BANK NOTE, 
 
 alterations in, 23 
 
 BANKRUPT. 
 
 tenant in tail, mortgage by, further assurance, 495 
 
 BAPTISM, 
 
 name of, 125 
 
 BARGAIN AND SALE, 
 
 construed as covenant to stand seised, 41 
 
 confirmation, 43. 
 
 feoffment, 44 
 not enrolled, construed as grant, 42 * 
 
 examples of deeds construed as, 43 
 
 BARONIA, 
 
 meaning and contents of, 562 
 
 BARONY, 589 
 
 BASTARD, 
 
 reputed name of, 127 
 
 gift to, by deed, 3:51 (Rule 132) 
 
 will, 127 
 limitation to, " and his heirs," 225 
 when admitted to take as " child." 3.30 
 
 BAT, 601 
 
 BATHING, 
 
 right to cross foreshore for purpo.se of, 580 
 
 BEAST-GATE, 562, 565 
 
 "BEGOTTEN," 
 
 extends to future issue, 236 
 
 "to be," extends t<j children already born, 236, .328 
 
 6(15
 
 638 INDEX. 
 
 [The paging refers to the [*] pages.] 
 BENEFICIAL INTERESTS, 
 
 of trustee, operation of conveyance on, 206, et seq. 
 
 BENEFICIUM, 562 
 
 BENEFIT, 
 
 person taking under deed, bound by deed, 2 
 
 BENERTH, 563 
 
 BENEWORK, 563 
 
 BEN-RIP, 563 
 
 BERCARIA, 563 
 
 BEREWICA or BEREWIT, 563 
 
 BERQUARIUM, 563 
 
 "BESIDES" 
 
 eldest son, 354 
 
 BILL OF EXCHANGE, 
 alterations in, 23 
 patent ambiguity in, 112 
 
 BILL OF LADING, 
 
 evidence of usage to add implied terms to, 15 
 
 as to meaning of technical words in, 61 
 
 BLANK, 
 
 in deed, filled up after execution, 26 
 transfers, 28 
 
 BOCLAND or BOOKLAND, 563 
 
 BOND, 
 
 alterations in, 21, 30 
 
 evidence to vary, inadmissible, 3 
 
 several, cancelled as to one party, 30 
 
 cases on construction of 82, 130 
 
 in form joint, executed by one obliger only, 2 n. 
 
 BOOKLAND or BOCLAND, 563 
 
 BOON, 563, 616 
 
 BORDE, BORDARII, 563 
 
 BORDLANDS, 563, 571 
 
 "BORN" 
 
 includes " to be born" and c contra, 328 (Rule 130) 
 
 BOROUGH ENGLISH, 
 
 lauds, to be settled under marriage articles, 536 
 gift of, by purchase, to heir, 253 (Rule 89) 
 
 "BOSCUS," 
 
 meaning of, 89, n., 631 
 
 BOTE, 563 
 
 BOUGHT AND SOLD NOTE, 
 
 evidence to add implied terms to, 14 
 alterations in, 23 
 
 BOUNDARIES, 
 
 erroneous, of parcels, rejected, 166, 167 
 
 560
 
 INDEX. 639 
 
 [The pacing refers to the [•] pa^s. ] 
 BOVATE, BOVATA TEKR.^, 5(54 
 
 BREACH OF TRUST, 
 
 wheu a specialty debt arises on, 421 
 
 BRUERA, BRUARIUM, BRUYRIUM, 564 
 
 BUILDING, 
 
 contract, evidence of meaning of terms in, 00 
 estate, ownership of roads, 183 
 
 covenants by purchaser of several lots, 464 
 laud retained by vendor for. implied reservation of right of way, •20:5 . 
 society, receipt of, 152 
 
 BUSINESS, 
 
 implied covenant to carry on, 412, 414 
 
 'BUT," 601 
 
 "BUT THAT," 
 
 qualifying covenant, 469 (Rule 171) 
 
 BUTT, 564 
 
 CABLISH, 564 
 
 CANCELLING DEED. See Alterations, 
 effect of, 24, 25 
 seal of one party to, 30 
 by accident. 34 (Rule 7) 
 whether animus eanceltandi, question of evidence, 35, 
 
 CANTARIA, 564 
 
 CANTRED, 564 
 
 CAPABLE AND INCAPABLE PERSON. 
 
 liTuitation to, 283 
 
 CARUCATE, 564, 596 (note e), 597, 616 , 
 
 CARVE, 564, 616 
 
 CASTLE, 565 
 
 manor may pass by name of, 595 
 
 CATTLEGATE, .565 
 
 CELL or CELL A, .565 
 
 CHAIN, 597, 602 
 
 CHAMBERS, 602 n. 
 
 CHANTRY, .566 
 
 manor may pa.ss by name of, 595 
 
 CHARITABLE TRUSTS. 
 
 construed by usage, 68, 72 
 
 CHARTER PARTY, 
 
 evidence, to add implied terms to, 13 
 
 as to meaning of expressed terms in, 60 
 alterations in, 22 
 
 delivery of goods, condition precedent to payment of freight, 4.55 
 covenants in, whether dependent, 464 
 
 5(57
 
 "^40 
 
 INDEX. 
 
 [The paging refers to the [•] pages. ] 
 
 CHARTERS, ANCIENT. See Ancient Documents. 
 CH^E, 565 . 
 CHAUNTRY: See Chantey. 
 
 CHILD, 
 
 limitation to "A. and his eldest," 358 
 
 CHILDREN. 5ee Class Younger Children. , 
 
 in deeds a word of purchase, 318 (Rule 127) 
 gift over in default of, 324, 325 
 primary meaning of, 327 
 may include other issue, 327 
 
 children of several marriages, 327 
 includes child en ventre, 327 (Rule 129) 
 of person domiciled in heathen country, 331 
 "of the wife," 327 
 
 younger, when children hy second wife included, 327, 338, 339 
 horn, or living, at specified time, child en venire included, 327 (Rule 129) 
 "to he born," "to be begotten," &c., children already Ijorn included, 
 
 and e contra, 328 (Rule 130) 
 primd facie means legitimate children only, 329 (Rule 131) 
 legitimate, who are, 329 
 illegitimate, when admitted, 330 
 
 unborn at date of deed, cannot take, 331 (Rule 132) 
 where " issue" means, 323, 326, 327, 549 (Rule 198) 
 " children of A. and B.," gift to. 357 
 
 "ot A. and B. respectively," 357, 360 
 interests taken by, under marriage articles, 542, 545, 548. Sec MARRIAGE 
 
 Articles. 
 of A., gift of realty to, not enlarged by gift over on death of A. without 
 
 issue";^ 251 (Rule 86) 
 
 CHIMIN, 566 
 CHIMIN AGE, 566 
 CHRISTIAN NAMES, 125 
 CHURCH, 
 
 JRCH, 
 
 part of, may belong to private person, 566 
 
 CIRCUMSTANCES, 
 
 evidence of, to vary deed, inadmissible, 1 
 
 to connect several deeds. 6 
 
 to construe words, 49 — 53, 55, 56 
 words to be construed with reference to, 47, 49 
 estate of grantor regarded in construction of grant, 220, 221 
 
 "CLAIMING UNDER," 491 
 
 CLASS, 
 
 made parties by class name, 126 — 7 
 defined, 355 
 
 vesting of gifts to, 355, et seq. See Vesting. 
 and named individual, 356 
 
 CLERICAL ERROR, 
 
 corrected by context, 78 
 
 counterpart, 8 
 
 COLLATERAL CONTRACT, 6 
 
 COLLECTIVE NAME. 155 
 
 568
 
 INDEX. 641 
 
 [The paging refers to the [*] pa^o.] 
 
 COMMON. iS'<'e Bote, Fisheky, Hekbage, Pannage. Pastukk. Prc.fitA 
 Prendre, Tukbary. 
 strip on side of road commnnicating -with, 182 
 extinguished, -^\heu right of revived, 203 (Rule 59) [see Kevivoe) 
 
 COMMON FIELDS, 566 
 COMMONABLE BEASTS, what are, 609 
 COMMOTE, 567 
 COMPANY. 
 
 joint-stock, implied covenants by, 423 
 
 CONDITION, 
 
 words of, amounting to covenant, 411 
 precedent to performance of covenant, 445 
 
 CONDITIONAL FEE, 245 
 in copyholds, 241 
 
 CONDITIONS OF SALE, 
 
 not admitted as evidence to restrict parcels in conveyance, 4 [and »ce 
 Contract) 
 
 CONDUCT, 
 
 subsequent, of parties, not evidence to vary deed, 8 (Rule 2), 9 
 evidence to explain ancient documents, 9, 66, el t<eq. 
 
 CONDUIT, 
 
 when passes as "appurtenance," 188 
 
 CONFIRiMATION OF TITLE, 
 construction of deed for, 138 
 
 CONMOTE, 567 
 
 CONSIDERATION, 
 
 proof of, when not stated, 5, 145 (Rnle39), et seq 
 
 additional, 147, 148 
 
 valuable, 147 
 created by conveyance for life or in tail, 1 19 
 evidence by whom paid admissible, 149 (Rule 40) 
 general, use not raised on, 145 
 what, .necessary to raise use, 149 (Rule 41) 
 conveyance without, resulting uses, 149, 286, ct seq. 
 one covenant being, for another, 460 
 unlawful. 5 
 
 CONSUETUDO. See Custom. 
 
 CONTEMPORANEOUS 
 
 deeds, evidence as to their referring to same transaction, 6 
 
 how construed, 7 
 
 I)resumption as to order of execution, 7 
 documents, as evidence of •meaning of words, .53 
 declarations of parties as to intention, not evidence, 52 
 inteipretation, of ancient documents, GG cl seq. 
 sales, rights as to easements, 202 (Rule 58) 
 
 CONTEXT, 
 
 to be regarded in construing words, 47, 50, 54 
 
 excluding primary meaning, 76 (Kule 16) 
 
 discriminating l)et\veen several primary meanings, 107 (Rnle24) 
 
 words su])i)licd, rejected, or transposed, on, 78 (Rule 17), 80, 225, 227, 
 
 233, 236. 
 'And see Intrin.sic Evidence. 
 
 569
 
 642 LNDEX. 
 
 [The paging refers to the [*] pages.] 
 CONTINGENT REMAINDERS, 
 
 limitation to heirs of living persons not grantor, 229 (Rule 70\ 242 
 
 two living persons, 285 
 in heirs of body, 237 (Rule 86), 239 (Rule 77) 
 in " heir," or " heir of body," as purchaser, 252 (Rules 87, 88) 
 
 CONTINUOUS Ex\.SEMENTS, 189. See Easements. 
 
 CONTRACT. See Meecaktile Contract, Agreement, Covenant. 
 executory, followed by deed, 3, 537 (Rule 192) , 
 
 not admitted as evidence to vary conveyance, 4 
 collateral, 6 
 
 evidence to add implied terms, 9 en seq. 
 not construed by draft lease, 5 
 
 CONTRADICTION. See Repugnant. 
 
 CONVEY, 
 
 covenant for right to. 473, 475 
 
 trust or direction to, not necessarily executory, 533 
 
 CONVEYANCE, 
 
 contract, map, &c., not admitted to explain, 4 
 executed but not handed over, 120 
 by partners, whether separate estate passes, 131 
 concurrence in. to cure objections to title, 138 
 recital amounting to, 144 
 without consideration, 149 
 map or plan, incorporation of, 162. /See Map. 
 schedule or inventory held restrictive, 162. See Schedule. 
 not construed to work forfeiture, 178 
 
 of part of tenement, rights as to easements, 189, et sag. >S'ee Easemekts. 
 for railway, or other special purposes, 190 
 
 of all estate, right, title, or interest, 204 (Rule 60i. See Aix Estates. 
 whether condition precetlent to pavmeut of purchase money, 448, 451, 
 459, 465 
 
 CONVEYANCERS, practice of, evidence to construe deeds, 63 n. 
 
 COOPATURA, 568 
 
 COPARCENERS. 
 
 release between, without word "heirs." 227 
 
 COPE, 568 
 
 COPYHOLDS, surrender, to take effect infuturn, 92 
 
 where not passed by assurance proper to convey freeholds, 178 (Rule 47) 
 whether uninclosed strips and roads included in grant of, 180 
 re-grant of forfeited, no revivor of common appurtenant, 204 
 limited in remainder to heirs of grantor, 229 
 fee simple conditional in, 241 (Rule 80) 
 Rule in Shelley' s CaSe, 243 
 
 estate of inheritance in, created by cu^omary assurance without the 
 word "heirs," 224 
 
 CORPORATION, 
 
 name of, as party to deed, 127 
 by what words a fee simple is limited to, 226, 227 
 vacancy of, 226 n. 
 
 limitations to two, tenancy in common, 280 
 and a common person, 280 
 
 CORRESPONDENCE. See Letters. 
 
 prior to deed, not evidence to control it, 3 
 
 570
 
 INDEX. 643 
 
 LThe paglBg refers to the [•] paKoe.] 
 COTTAGE, COTAGIUM, 568 
 
 COUNSEL, 
 
 "as counsel shall advise,'" 49:i, 533 
 
 COUNTEKPART, 7, 8 
 
 correction ot error in original by, 8 
 
 COUNTY, 568 
 palatine, 568 
 
 COURT, 568 
 
 COVENANT. See COVENANTS Joint AND Several, Covexa.vts .Mitti:al, 
 Covenants Qualified, Covenants to Settle. 
 meaning of word, 407 
 
 when applied to instruments not under seal, 407 
 
 may include proviso, 408 
 agreement under seal must amount to, 411 
 man cannot, with himself, 407 
 stipulation negativing, obligation is not, 409 
 executed and executory, distinguished, 408 
 alterations in, 22 
 
 several, where seal of one party cancelled, 30 
 creation of, no special form of words iieceasary, 409 (Rule 151) 
 
 but they must amount to binding agreement, 410 
 created by admission under seal, 143, 418 
 
 assignment of future property, 408 
 
 declaration by A. that he will do a thing, 426 (Rule 155) 
 
 breach of trust, 421 
 
 exception, words of, 412 
 
 participle, 419 
 
 proviso, 411 
 
 recital, 14,3, 415, et seq., 418 
 
 of intention that thing shall be done, 415 
 that a .state of facts exists, 41() 
 
 restriction by way of use, 413 
 
 "to be," 419 
 
 " upon condition," " I will be ready to." Ill 
 
 "yielding and paying," or "rendering" rent, 419, 420 
 
 "excepting," "being," "doing," 420 
 
 •warranty, 411 
 
 agreement and declaration, 426 (Rule 1551 
 
 to execute deed that ought to contain covenants, 425 (Rule 153) 
 not created by recital which has another object, 11 H 
 
 assignment oflea.se, ".suhject to " rent and covenants, 420 
 operating as conveyance, 41, 42, 44, 408 
 
 lease, 44 
 
 grant ot easement or profit a prendre, 184, 408 
 absolute, not cut down by recitals, 133 
 
 exception to, how construed, 427 (Rule 156) 
 ambiguous, construed against covenantor, 425 (Rule 154) 
 by recital, 133 
 
 interests of covenantors orcircumstanoeii, 435 
 construction of, not according to interpretation put on it by parties, 407 
 
 for renewal according to usage, 74. 
 
 J)y le.ssor or lessee, 97 
 
 trustee as not per.sonally binding, 90 
 father to .settle, lesulting Inist.s, 249 
 
 ■'to pay on 29th February then next," 125 
 in law. what, 422 
 
 571 ■
 
 644 INDEX. 
 
 [The paging refers to the [*] pages. J 
 COVENANT— con/mue(/. 
 
 implied, excluded by express, 418, 424 (Rule 152) 
 from whole deed, 411 
 by word "demise," 90, 422, 424 
 "give," "graut," 428 
 "let," 423 
 by assignment, 424 
 
 by law, whether liability under, is joint or several, 436 
 in conveyance by joint-stock company, 423 ■ 
 
 under Lands Clauses Act, 423 
 Yorkshire Registry Act, 423 
 under C. A. 1881, 422 
 to carry on business, 412 — -414 
 penalty, effect of, 427 
 
 or liquidated damages, whether sum named to secure performance 
 
 is, 428 (Rule 159) 
 difierence as to amount recoverable, 428 
 
 where same sum is payable on breach of every covenant, 429 (Rule 
 160) 
 proviso cutting down liability of covenantor, 427 (Rule 158) 
 qualification of covenant by participle or "to be," 420 
 specific performance of, when secured by named sum, 430 
 
 COVENANT AGAINST INCUMBRANCES. See Covenants, Qualified. 
 whether extended to incumbrances of which the purchaser has notice, 
 
 481 
 
 COVENANT FOR FURTHER ASSURANCE, 493 
 
 "reasonable acts," means necessary and practicable, 493 
 
 where time for performance limited, 493 
 
 "as counsel shall advise," 493 
 
 whether purchaser can require duplicate conveyance, 494 
 
 or covenant to produce, 494 
 
 or fresh covenant for title, 494 
 distinction between agreement to convey and further assurance, 494 
 tenants in tail, further assurances by, 494 
 
 Fines and Recoveries Act, s. 47, 495 
 estate tail of bankrupt mortgagor, 495 
 specific performance, 495 
 
 interest a-.'quired by covenantor since conveyance, 495, 496 
 
 where professedly limited interest sold, 498 
 purpose of the covenant, 49G, 498 
 
 whether purchaser could require fine, recovery, or surrender, 497, 498 
 conveyance by tenant in tail reciting title in fee, 497 
 covenantee's right may depend on nature of estate conveyed. 498 
 distinction whether other covenants general or limited, 498 
 doctrine of estoppel as to subsequently acquired interest, 499 
 no specific performance where original conveyance void, 499 
 
 COVENANT FOR QUIET ENJOYMENT. See Covenants, Qualified. 
 object of, 474, 481 
 restricted by recital. 137, 486 
 broken if property in lease, 481 
 not guarantee for unrestricted user, 481 
 whether broken by legal proceedings, 482 
 
 by suit in equity, 482 
 "interruption," &c., must be lawful, 483 (Rule 173) 
 but may be so worded as to extend to tortious acts, 485 
 against acts of covenantor himself, &c., 485 
 against acts of specified persons, 486 
 
 572
 
 INDEX. 645 
 
 [The paging refers to the fl pages.] 
 COVENANT FOR QUIET ENJOYMENT— co)i/j»u<;rf 
 disturbance by covenantee's own act, 48G 
 construcUon of special words, 487 
 
 "clear of rents," '•during the term," 487 
 
 "acts," "means." itc, 4*^7 
 
 "means, procurement, consent," 488 
 
 "neglect," "default," 48-', 489 
 
 "grants, rent-charges,'' 489 
 
 " permit and sufler," dower trustee, 490 
 
 "sulTer," entry under elder title, 490 
 xcho are persons ^^ claiming zuulcr'^ covenantor, 491 
 appointee under prior power, 491 
 prior mortgagee .with concurrence of covenantor, 491 
 where covenant prospective only, 491 
 
 worded so as to extend to past acts, 492 
 distress for land tax due before demise, 492 
 quit rents accrued after conveyance, 489 
 tenant in tail under settlement by covenantor, 492 
 resettlement, appointee under, 492 
 dower, 492 
 
 things appurtenant or incident, 493 
 defeasible title in covenantor, 489 
 where covenantor neglects act to confirm his title, 489 
 charging order, 490 
 
 COVENANTS FOR TITLE. See COVENAKT.S, QUALIFIED. 
 • what are, 473 
 
 are construed against the covenantor, 97 
 
 are cither general or limited, 97, 473 
 
 and right to convey distinguished, 473. 474 
 
 and covenant for quiet enjoyment distinguished, 474 
 
 covenant for right to convey, extends to both title and capacity, 475 
 
 covenants for seisin and right to convey, 475 
 
 covenants by vendor entitled by de-cent or devise, 47G 
 
 distinction between freeholds and leaseholds, 476 
 
 covenant that lease and term are in full effect, &c., 477, 478 
 
 COVENANTS, JOINT AND SEVERAL, 434 
 
 benefit of, may be joint or several, but not both, 434 
 whether joint or several, 437 
 
 when words are ambiguous, 437 (Rule 163) 
 liability under, may be joint or several, or both, 434 
 how determined, 434 (Rule 162) 
 where separate liability existed before covenant, 435 
 
 each covenants for his own acts, 435 
 under covenants implied in law, 436 
 joint, made joint and several by introductory words, 478, 479 
 
 COVENANTS, MUTUAL, 445 
 
 dependent and independent distinguished, 445 
 dependency a question of construction, 446 
 
 not necessarily created ])y technical words or order of covenants, 447 
 arising from time for ])erf©rmance, 44H, 454 (Rules 165, 166) 
 where covenants have to be performed simultaneously, 45H (Rule 
 
 167) 
 arising from nature of rovennnts, 460 (Rules 168, 169) 
 
 as cnnsidiiatioii docs or docs not go 1o root of contract, 4(>0 
 where defendant has had substantial part of the cunsidcratiou, 461 
 where clauses are introduced by participles or " to be," 464 
 
 573 •
 
 646 INDEX. 
 
 [The paging refers to the [*] pages.] 
 COVENANTS, MVTVAL^continued. 
 
 covenants, whether independent, to repair, 466 
 
 to settle, by wife's father and husband, 453, 
 
 454, 455, 456 
 to supply goods, 462 
 
 COVENANTS, QUALIFIED, 467 
 
 by context, 467 (Rule 170) 
 
 participle or the words " to be," 420 • 
 
 not by ambiguous words, 468 
 by "but that," 469 (Rule 171) 
 
 words in other covenant, 471 (Rule 172) 
 position of qualified covenant immaterial, 469, 470 
 rules by Lord St. Leonards as to the qualification of one covenant by 
 
 another, 470 
 qualifications of one covenant aflfects all others in pari materia, 471 (Rule 
 
 172) 
 qualifying words rejected by context, 480 
 covenant to repair qualified by context, 468 
 
 to renew, whether affected by other qualified covenants, 472 
 in dispari materia, 471 (Rule 172) 
 
 for title and quiet enjoymeut, 479 
 
 and value, 480 
 lor validity of lease and quiet enjoyment, 479 
 
 and against incumbrances and for further assurance, 479 
 to pay annuities or rents and to indemnify against them, 479 
 to repair and leave repaired, 480 
 
 COVENANTS TO SETTLE, 500 et seq. 
 
 agreement "' that property shall be settled," 501, 503 
 
 that husband shall settle the wife's property, 501, 504 
 
 covenant by husband only, 506 
 
 not controlled by recital, 131, 505 
 by husband and wife, 507 
 property given with direction that it is not to be bound by, 508 (Rule 
 176) 
 
 over which wife has power, 510 (Rule 177) 
 "shall become entitled," 510, 513, 515 
 " is now entitled," 511 
 property described hy xcords of future acquisition only, 512 
 
 no title to, at marriage, 514 
 
 in possession at marriage, 515 
 
 vested remainder, 518, 519 
 
 rcA'crsion accruing during marriage, 521 
 
 contingent interest, 522, 523, 524 
 
 named minimum value, 526 
 Malins' Act, 524 
 life interests. 525, 507 " 
 estate tail, 531 
 ' ' fortune or substance, ' ' 531 
 covenantor becoming entitled to different interest from that mentioned 
 
 in covenant, 527 
 infant wife, 529 
 
 confirmation by, 529 
 property of husband, 530 
 
 taken by husband in right of wife, 530 
 
 given to husband and wife as joint tenants, 530 
 exceptions cannot be implied, 530 
 volunteers cannot enforce, 529 
 
 574
 
 INDEX. 647 
 
 [The paging refers to the [•] pages. ] 
 COVENANTS TO i^ETTLE— ami iuiud. 
 
 separate estate when ])outul or not, 504, 5UT, oUS 
 
 reversion vested at time of marriage, when bound, nil. 512. 518 
 
 when not 51}) 
 contingent reversion. 511, 512, 521 
 reversion to which wife becomes entitled (hiring marriage. 504. .521, 522, 
 
 523, 524 
 choses in action not reduced into possession, 506 
 chattels by reference to realty, 547 
 
 COVENANTS TO STAND SEISED, 
 examples of deeds con-strued as, 41 
 construed as lease, 44 
 consideration necessary, 146 
 uses limited to stranger, void, 149, 150 
 powers in, of appointment leasing, revocation, 150 
 made with strangers, 150 
 
 in favour of husband or wife in relation, ib. 
 
 by tenant in tail, 271 
 
 COVERTURE. See During Coveetuke. 
 "under," 333 
 deed may not be binding owing to, 5 
 
 CREDITORS, 
 
 made parties by class description, 126, 127 
 
 CREDITORS' DEEDS, 22, 27, 32, 176, 177 
 
 CROFT, 568 
 
 CROSS REMAINDERS, 
 
 not implied in deed, 289 (Rule 114) 
 
 except in executory deed, 294, 542 
 
 of accrued shares, 291 
 
 '•survivors" read •'othei'S," to raise, 289 
 
 inserted in settlement under articles, 542 (Rule 196) 
 
 CROWN, 
 
 grant by, taken most strongly against grantee, 99 
 
 ambiguity in, 106 
 
 of advowson. 559 
 
 of hundred, 589 
 
 to " A. and his heirs male," void, 231 
 limitations to. See King. 
 
 CURSUS OVIUM, 579 
 
 CURTILAGE, 
 
 meaning of, 569 
 may pa.ss by "cottage," 568 
 "house," 588 
 
 CUSTOM. See Usage. 
 defined, 569 
 distinguished from prescription, 569 
 
 service, 569 
 evidence of, to add implied terms to contract, 9 (Rule 3) 
 where party ignorant of custom, 16 
 to explain express terms, 9, 57 
 
 CYPHER, 
 
 evidence u.s to meaning of, .56 
 
 575
 
 648 INDEX. 
 
 CThe paging refers to the [•] pages.] 
 CYVAR, 601 
 
 DAMAGES. See Liquidated Damages. 
 
 DATE, 
 
 of delivery of deed, evidence to prove, 5, 119, et seq. 
 
 deed takes effect from delivery, not from date, 119 (Rule 31) 
 
 impossible, or erroneous, or none, 122 (Rule 32) 
 
 reference to, how construed, 123 (Rale 33), 124 
 
 lease from day of, 124 (Rule 34) 
 
 evidence to explain erroneous reference to, 125 (Rule 35) 
 
 " 29th. February; now next," 125 
 
 DAY, 
 
 fractions of, disregarded, 120 
 " now last past'," 125 
 
 DAYSWORK, 569, 572, n. 
 
 "DE," 
 
 meaning of, in limitation of estate tail, 233 
 
 DEATH, 
 
 gift over in case of death before share payable, 403 
 
 without leaving children, 404 
 
 of all children in parent's lifetime, 403 
 
 DEATH WITHOUT ISSUE, Chap. XVI., pp. 247, et seq. 
 
 words ''die without issue" mean failure of issue at any time 247 
 
 (Rule 82) 
 at a specified age, 247 
 meaning " without leaving children," 248 
 " or " Avithout issue- read " and," 248 (Rule 83) 
 gift over on, following limitation to A. and his heirs, 248 (Rule 84) 
 does not enlarge express estate for life. 249 
 
 defaultof '' such " issue, or without " leaving " issue, 250 (Rule 85) 
 life estates of children not enlarged by, 251 (Rule 86) 
 following limitations of personalty, 250 
 
 of personalty for A. and heirs of his body, 261 
 
 DEBITUM, 573 
 
 DEBITUM IN PR^SENTI, SOL VENDU3I IN FUTURO, 382 
 
 DEBT, 
 
 admission or recital under seal operating as covenant to pay, 143, 418 
 
 DECLARATIONS. See Agreement and Declaeation. 
 vesting property in new trustees, 228 
 covenants created by, 426 
 subsequent, of party cannot vary deed, 8 
 
 DEED. See Alteratiois^, Attestation, Ancient Documents, Contem- 
 poraneous, Repugnant. 
 what constitutes, 1, n. 
 execution of, 1, n. 
 
 sealing and delivery, presumption as to, 1, n. 
 executed by A. in iaith that B. will execute, 2, n. 
 by A. personating B., 2, n. 
 one only of several obligors, 2 n. 
 party taking benefit of, bound by, 2, n. 
 made to carry out executory contract, 3, 537, 538 
 not binding, extrinsic evidence of fraud, &c., 5 
 date of. See Date. 
 
 576
 
 iNi)i;\. ()49 
 
 (Tlu' paging refers to the (•] pjicos.] 
 DEED — condiiuf'il. 
 
 considunuion. See Coxsidekatiok. 
 endorsement, evidence when made. 6. See Endorsed. 
 when only part of contract expressed in, 6 
 circumstances, evidence ol. See ClRCl'M.STAXCES. 
 context. SeeCoy-rKXT, IXTinx.sic P:vii)EXCk. 
 not varied by subsequent admissions or conduct, 8 (Kule 2) 
 schedule annexed alter execution, 22, 30. Sec 8CHEl)Ul,K. 
 several, in one parchment, 30 
 
 not takinji effect as intended, construed so as to carry out expres.sed in- 
 tention. 40 
 every part of. to be regarded. 76 
 construction of. affected by unnecessary words, 89 
 
 construed mo.st strongly against grantor, 9.'i (Rule 21), 217 (Kule (J6), 222 
 specific statement prevails over general, 113 (Kule 27) 
 takes effect from deliver}^ not date, 119 (Kule 31) 
 retention of, operation not suspended, 120 
 concealed, 120 
 delivered as escrow, 121 
 
 premises of, what are, and oflSce of, 210. See Premi.sp>>. 
 habendum. 210. See HabexdI'M. 
 whether construed differently from will, 189, 274, 278, 373, 383, 396, 402. 
 
 See Preface. 
 not looked at to construe will, 5 
 
 "DEFAULT," 488, 489 
 
 DEFAULT OF HEIRS, 
 
 gift in, to per-son in line of descent, cuts down prior estate in fee to tail, 
 234 
 DEFAULT OF ISSUE. See Death without Issue. 
 
 DEFEASANCE, 6 
 
 deed operating as, 46 
 
 DEFORCEMENT, 570 
 
 DELF, 570, 604 
 
 DELIVERY. See Date, Deed. 
 
 deed takes effect from time oi, 119 
 
 estate taking effect by, without further act, 221 
 
 what is sufficient, 1 
 
 DEMAND, 570 
 DEMESNE, 570, 571 
 
 lands, pass bj' conveyance of manor, 571, 593 
 
 DEMISE. See Lease. 
 
 what words operate as, 4 1 
 till certain sum be paid, 240 
 covenants implied by word, 422 
 
 restricted by express covenant, 9i), 424 
 
 when qualified, 472, 478 
 
 liability under, whether joint or several, 43(» 
 
 DENAKIATA (or DENAKIATUS) TKKl^E, 572, 598 
 DENE. 572 
 DEODAND, 572 
 
 DESCRIPTION. See AMUKiirriKs, (Jk.vekai. Dk-schiimidn, Inacci kacikh. 
 Parcels, Parties, Si'kcific Dksckiition. 
 
 .37 i\tkhi'ri*ratiox ok dkedh. 577
 
 650 INDKX. 
 
 [The paging refers to the ['J pages.] 
 DETERMINABLE FEES, 245 
 
 DICTIONARY, 
 
 evidence of meaning of words, 56 
 
 DIRECT EVIDENCE OF INTENTION, 
 
 what is, 108, 109 
 
 admissible to resolve equivocation. 108 (Rule 25) 
 
 does not contradict deed, 109 
 
 not admissible to explain patent ambiguity, 112 (Rule 26) 
 
 in cases of inaccuracies, 115 
 
 not admissible to make out tenancy in common, 281 
 
 DISCLAIMER, 
 
 deeds operating as, 46, 
 
 DISENTAILING DEED, 
 
 operation of, restricted to estates tail specifically dealt with, 209 
 
 DISMES, 573 
 
 DISSEISIN, 570, 573 
 
 DISTRIBUTION, 
 
 words of, added to limitation of inheritance, 244 
 
 DISTURBANCE. See Interruption. 
 
 DITCHES, 
 
 ownership of, 180, 584 
 
 DIVESTING, 
 
 of estate, none by subsequent destruction of deed, 23 
 of portions. See PORTIONS. 
 
 DIVISION OF COUNTY. 
 
 meaning of, 568 
 
 DIVORCE, 
 
 effect of, as to ultimate trusts in settlement, 332 
 
 DIVORCED WOMAN, 
 name of, 128 
 
 re-marriage of, during life of first husband, whether separate use re- 
 vives, 300 
 
 DOLE, 573 
 
 DOMAIN, 570 
 
 DOMINICUM, 570 
 
 DOWER, 
 
 barred by effect of recital, 136 
 
 DRAINAGE, 
 
 easement of, 190 
 
 DRIFTWAY, 573 
 
 DURESS, 
 
 deed not binding for. 5 
 
 DURING COVERTURE, 
 
 trusts for wife, when extended to her life, 294 
 
 power exerciseable. cannot be exercised by a widow, 333 
 
 DUTY, 573 
 
 DWELLING-HOUSE. See House, Messuage. 
 
 578
 
 INDEX. 651 
 
 1 The piif^'ing refers to the [• ] po^ros. 1 
 EASEMENTS. Sec Way. 
 
 grant of, eftected by covenant, 42. 184, 40S 
 
 by what words', 184 (Rnle 49) 
 continuous and apparent, necessary, pass by implication on prant of i)art 
 
 of tenement, ]sy (Rule r)'2) 
 -nlietlier implied reservation of, to vendor, 199 
 rijrhts as to. on contemporaneous sales. 202 (Rule 58) 
 "apparent,"' what are, 189 
 'necessary," what are, 189, 190 
 of necessity, references as to, 190 
 drainajte. 190 
 light. 190. 191 
 water. 191 
 
 di.scontinuous, 190, 195 
 
 lormerly appurtenant, extingui.shed by unity of ownership, lit.') 
 reciprocal, implied grant and reservation of,' 200 
 support, mutual, 200 
 revivor of, 195 
 
 EGLWYS HAW. (501 
 
 EJUSDEil GEXERIS, 
 doctrine of, 173 
 
 applied to reversion. 176 
 statutes. 177 
 exceptions to rule. 177 
 
 wliether rule applies to exceptions, see Williams v. Mercier, 10 Ap. Cas. 1. 
 "ELDER.' 
 
 children, meaning. ?,?,! 
 
 ELDEST SON. See Poktioxs. 
 
 primary meaning of. 120, n., 387 
 meaning eldest by birth, 352 (Rule i:!8) 
 
 child succeeding to estate, 338 (Rule 137) 
 in provisions lor younger children, where reference to provision made 
 for eldest. 338 
 
 no such reterence, 352 
 tenant tor life only 345 
 not succeeding to estate takes portion, 344 
 limitation to "A. and his, ' .358 
 
 ELECTION, 
 
 by grantee, deed when construed at, I0(» i Rule 22) 
 
 in cases of patent ambiguity in subject matter, 105 
 wife to crmfirm covenant to settle made by her while infant, 529, u. 
 grantor, under exception, 106, 
 
 ENDORSED, 
 receipt. 152 
 memorandum, taken as part of deed, 18. 
 
 ENTIRETIES, 
 
 tenants by. 281 
 
 ENTITLED, 
 
 meaning of. 387, 395 
 " is now," 511 
 "shall bec^)nK'." 510 
 
 ENTfiV 
 
 I ight of, wliether j»a.sscd by all esUitc clause. 209 
 power of. what estate taken under cxerci.se of 24(i 
 
 571)
 
 652 INDEX. 
 
 |The paging refers to the t*j pages.] 
 ENUMERATION OF PAKTICULARS, 161, 169 
 EQUITABLE LIMITATIONS, 
 
 construction of, 276 (Rule 104) et aeq. 
 EQUIVOCATIONS. See Ambiguity, Latent, 
 ERASURES, 
 
 in deeds, effect of, 19 (Rule 5). See Altekations. 
 
 ERW, 573, 599, 6U0, 601 
 ESCROW, 121, 122, 
 ESSART, 573 
 ESTATE. See Habendttm. 
 
 not divested by destruction of deed creating, 19, 23 
 
 word, meaning, 204 
 
 immediate at common law, not taken by person not named in premises 214 
 
 not expressly limited in premises, 215 (Rule 65), ei seq. 
 
 in habendum repugnant to premises, 217 (Rule 66) 
 
 ESTATE BY IMPLICATION, Chap. XX. 286, et seq. See Implication. 
 ESTATE CLAUSE. .SVe All Estate. 
 
 ESTATE FOR LIFE, 
 
 whether for life of grantor or grantee, 55, 95, 295 
 passes where no express estate limited, 216 
 in premises, habendum in fee, 218 
 
 in habendum, following grant to A. and his heirs, 219 
 grant of, construction, 220 
 
 passes by limitation to A. (without more), 295 (Rule 116) 
 A. "for ever," 224 
 
 " and his assigns for ever," 224 
 '•and his a.ssigns," 295 (Rule 116) 
 "his heirs atid assigns for life" (on context), 
 '■ 226 
 
 "and his executors, " 317 
 
 " and his issue," 225, 295 
 
 '•and his seed," 2^25, 295 
 
 \ '"and his successors," 225 
 
 "and his heir " (in singular), 225 
 "in fee simple " (before 1882), 224 
 to " issue male," 280 
 
 " heir female of the body," 296 
 by liberty "to A., to occupy during his life," 605 
 implied use of, for grantor, 229 
 
 express, not enlarged by gift over on default of issue, 249 
 by feoffment, habendum to feoffees and their heirs to use of feoffees for 
 
 ever, 269 
 under equitable limitations, 277 
 by trust for wife <luring coveiture. when, 294 
 under marriage articles, whether impeachable for waste, 546 
 
 ESTATE GAINED BY ENTRY UNDER A POWER, 246 
 
 ESTATE PUR AUTRE VIE. 
 
 "heirs" explained to iliean " special occupants, " 218 
 
 limitation in premises and habendum repugnant, 92 
 
 restricted by habendum, 219 
 
 in rent charge, to "A., his executors, &c., habendum to A., his heirs 
 
 and assigns," 219 
 to A. and his heirs, 246 
 quasi estate tail in, 246 
 in trustees of settlement. 273 — 27() 
 580
 
 INDKX. C53 
 
 rThe paging refers to the [■] pages.] 
 ESTATES OF IN^^EmTA^'CI:, Chap. XV., pp. 2-SA, d .hc<]. 
 ;See EsT.vTK T.\iL, Fee Si.MPLE, Heirs, Luiitations. 
 
 ESTATE TAIL. -2:51 ei scfj. .sVr Heirs ok the Dohy. 
 iu habendum, lee simple in jjiemi'^es, ".il.S 
 by what words limited, "j;!! (Rule 7:i), d .mi/. 
 was fee simple at common law, '2:52 
 limitation to A. and his ••heir" in .singular, '2[V2 
 
 ••in tail." 2:51 
 ••of his body'' supplied by eonttxt, -S.V.i 
 " de." force of. '2'.V.> 
 by limitation to A. •• and his heirs," remainder to IJ. on failure of heirs 
 
 of A.. 234 i^Kule 74 i 
 importance of designating person from whose body heirs proceed, 235 
 heirs •'of body, and heirs " on " body, distinction, 23r> 
 limited to husband and wife, 23,") 
 by words of reference, 23(> 
 
 general, cut down to tail male by context. 236 
 limited to heirs of l)ody ot deceased per.son, '237 (Rule 75) 
 
 •• to right heirs of A. deceased by I), his wife for ever," 238 
 quasi, pur autre ric. 24(5 
 by limitation to A. and his heirs with gift over on A. 's death withoat 
 
 issue, &c., 248 (Rule 84) 
 uses declared on, 271 
 
 words given in case of realty applied to personalty, 260 
 covenant for further assurance by tenant in. 4f)4. 495 
 
 assignees of bankrui»t mortgagor of, 
 495 
 covenant to settle, 531 
 
 ESTATES OF TRUSTEES. 271, el>ieq. See Trustees. 
 
 ESTOPPEL. 
 
 by ■recital. 140, el scq. 
 
 receipt, 151 
 against married woman, 142 
 
 purcha.ser by admissions of his vendor. 142, 143 
 estate acqtiired after contract or convej'ance, 499, 527 
 
 ESTOVERS, 
 
 meaning of, 5G4 
 
 appendant to house, 187 * 
 
 gra!it of, as appurtenant, ih. 
 
 ESTRAY, 573 
 
 Fi^TREPEMENT, 573 
 
 EVIDENX'E. EXTlvIXSlC. See Ancikxt Doct'ment.s, Cit»;i;msia.\(|.>«, 
 D I K ECT I] \' I r ) K X ( ; e o v 1 x t k x t i o x . 
 Act of Parliament, as to meaning of words in deeds. .53 
 
 as to Icg-al terms in, (i2 
 as to meaning d words, 47, e( ncq. 
 
 maj) or ))lan. \(\\ 
 materially altered deed may be, 19, 23, <( srq. 
 of custom or usage. See Usac;e. 
 to add implied terms, 9 
 
 where one i)arty is ignorant of usage, 1(J 
 Uy explain expressed terms. 9, .57 
 of non-payment of prirehase-money, 151 
 of 8ub.sequent admi.ssions or I'onduc^t, 8, 9 
 
 581
 
 654 iNDKX. 
 
 [The paging refers to the [*1 pages.] 
 EVIDENCE, EXTRl^mC— colli inved. 
 to clear up patent ambiguity, 104 
 
 latent ambiguity or equivocation, 107 
 to contradict or vary deed, 1 (Rule 1) 
 
 to correct description of parties, 125 (Rule 35). See Parties. 
 to explain erroneous reference to date, 125 
 to prove true consideration, 145 (Rule 39), et seq. See Consideration. 
 
 date, 122 (Rule 32). .S'ee Date. 
 to show that deed is not binding. 5 , 
 
 who are members of firm, 126 
 paid consideration, 149 
 verbal or parol, what is, 109 
 inaccurate use of term, 109 
 
 EVIDENCE, INTRINSIC, 
 
 to construe deed. 76, et >^eq. 
 
 to exclude primary meaning, 7G (Rule 16) 
 
 to solve equivocation, 107 (Rule 24) 
 
 EXCEPTION, 
 
 construction of, 89, 95. 177 
 
 creating covenant, 412, 420 
 
 to absolute covenant construed strictly, 427 (Rule 156) 
 
 whetiier ejusdem generis rule applies to, nee Williams v. Mei-cicr, 10 App. 
 
 Cas. 1 
 election by grantor under, 106 
 
 EXECUTION, 
 
 of deed, 1, n. See Deed. 
 
 presumption as to order of, where several deeds, 7 
 
 of fresh, after alteration, 27 . 
 by A. "for self and B.," 2, n. 
 
 EXECUTOR, 
 
 assignment by, of all "his" goods and chattels, 207 
 conveyance by, whether beneficial interest passes, 207 
 
 EXECUTORS. See Personal Representatives. 
 
 limitations or trusts of personalty, in favour of executors of living per- 
 son, or A. for life, and his, or remainder to his executors, 312 (Rule 
 124) 
 
 limitations to, distinguished from limitations to next of kin, 313 
 
 "or administrators," on context meaning next of kin, 314 
 
 "or administrators of his own family," 314 
 
 " administrators and assigns," 314 
 
 or administrators, take for benefit of testator's estate, 314 (Rule 125) 
 
 of lessee, exercising option to purchase fee, 315 
 
 realty limited to A. and his executors, 317 
 
 take under a limitation to A. "and his heirs," for a term <>1 years, 245 
 estate gained by entry under power, 246 
 
 EXECUTORY. See Covenants to Settle, Marria(;i: Akticles. 
 contract, defined, 532 
 ' followed by deed, 3, 537 
 
 to convey to heirs of grantor, 229 
 
 of personalty for "heirs of body," 261 
 
 technical language in, may be disregarded, 534 
 limitations, construction, 257, 323 
 
 tenancy in common, 282 
 
 cross remainders implied, 294, 542 (Rule 196) 
 trusts in voluntary deeds and wills, 539 (Rule 194) 
 
 582
 
 INDEX. 655 
 
 [The pafiing refers to the [•] pages. ] 
 EXECUTORY TRUSTS. See CoVKNWXTJii toSkttlk. M.vkkiauk Auticles. 
 EXPEESSED INTENTIONS. 
 
 to be alone regarded, 06. 48. See iNTENTlox. 
 
 '' EXPRESSUM FACIT CESSARE TAClTUM,'' 89 (Rule 19), 418, 424 
 
 EXTRINSIC EVIDENCE. See Evidence, Extrinsic. 
 
 FAIR, .j74 
 
 FALDAGE, 574, 579, 582 
 
 FALLOW, 574 
 
 FALSA DEMONSTRATION 157 
 
 FERDELLA, FAKDINGDEL. FAKDING, 574, 598 
 
 FAKM, 
 
 uieauiHg of, 1G7, 574 
 
 FARTHING LAND, 575 
 
 FARTHING OF LAND, 575 
 
 FARTHINGDEL, 574 
 
 FARUNDEL. 574 
 
 FEE. See Fee Simple. 
 conditional, 245 
 determinable, at common law, 245 
 
 under Stat. Uses, 245 
 " as of," 572, n. 
 pleading seisin in. See Seisin. 
 
 FEE FARM, 
 defined. 618 
 deed construed as grant in, 217 
 
 FEE SIMPLE. See Heiks. 
 
 passes bj' grant to A. for life, habendnni to A. and liis heirs. 218 
 
 or to A. and his heirs, habendum for life or years, 219. 221 
 estate in fee in premises, estate tail in habendum, 218 
 limited bv what words, 224 (Rule 67), 225 
 without the word '' heirs," 226, 227. 228 
 
 in customary assurances. 224 
 does not pass by grant to A. "forever," or "A. and his assigns lor 
 
 ever," 224, 268, 269 
 limitation to A. " in fee simjjle," 224 
 to king, 226. <SVeKlNG, Ckown. 
 to corporation, 226, 227 
 by words of reference, 227 
 in relea.se or partition deeds, 227 
 fine or recovery, 228 
 
 declarations vesting property in new trustees, 228 
 to A. and his " heirs male," or " female," 2:!() (Rule 72) 
 in Crown grant, 2:51 
 followed by gift over on death witliout issue, 247, ef se*/. See 
 
 Death without Isske. 
 not cut down to estate tail by gift over in ('.efault of " snch " 
 issue, or without '* leaving" issue, 250 (Rule 85) 
 seisin in, how pleaded, 571, 572 
 
 FEE SIMPLE CONDITIONAL, 
 in copyholds, 241 (Rule 80) 
 
 583
 
 656 INDEX. 
 
 (The paging refers to the I*] pages.] 
 FELONY, 
 
 deed to compound, 5 
 
 FENCE, 585 
 
 FEOFFMENT, 
 
 construed as covenant to stand seised 41 
 
 as release, 43 
 examples of deeds construed as, 44 
 operating as execution of power, 46 • 
 
 charter ot, reserving rent, 86 
 
 FERDELLA, FEKDINGEL, FERLINGUS, 574 
 
 FERMEHOLT, 575 
 
 FERNDEL, S96 
 
 FERRY, 575 
 
 FINE. 
 
 deed to lead uses of, 7 
 
 uses of, declared by bargain and sale, or feoffment, 4 
 fee created by, without the word "heirs," 228 
 distinguished from amerciament, 560 
 
 FIRM, 
 
 evidence to show how constituted, when party to deed, 126 
 
 FIRM A BURGI, 575 
 
 FIRST CHILD. See Eldest Child. 
 
 FISHERY, 
 
 kinds distinguished, 576 
 "free," 576 
 " common," 578, 579 
 "common of," 577, 579 
 "several," 576 
 
 whether grant of, passes soil, 578 
 
 may be appurtenant to manor, 579 
 
 in public waters, 577 
 
 in private waters, 577 
 
 FIXTURES, 
 
 where some only expressly mentioned, 89, 90 
 
 FOLDCOURSE, 579 
 
 FOOTPATH, 
 
 whether include d in juucels, 179 
 
 FOREIGN LANGUAGE, 
 
 evidence of meaning, 50, 52, 56 
 
 FORERA, 567, 580 
 
 FORESHORE, 580 
 
 FOREST, 
 
 grant of, by Crown, 580 
 
 subject, 580 
 may be part of honour, manor, or castle, 580 
 
 FORFEITURE, 
 
 conveyance not construed so as to work. 178 
 
 584
 
 INDEX. 657 
 
 [The paging refers to the |'| pages.] 
 FORGERY, 
 
 deed executed by A. personating B., 2 u. 
 
 " FORREP " LANDS, 561 
 
 FOTHER, 567, 583 
 
 FRANCHISE, 581 
 
 FRANKFOLDAGE, 582 
 
 FRANK MARRIAGE. 215. 232 
 
 FRANKPLEDGE, .582 
 
 FRAUD. 
 
 deed not binding for, 5 
 
 FREE FISHERY, 576 
 
 FREEHOLD, 
 
 in futuro, grant of, when void, 215, 217, 220 ' 
 
 construed as covenant to stand seised, 41 
 release granting, construed as grant of reversion, 42 
 lease for lives " from the day of the date," is not grant of, 124 
 
 FREEHOLDS, 
 
 alone pass by general description, when, 178 (Knle 47) 
 
 FREEWARREN, 582 
 
 FRITH, 582 
 
 FRYDD, 582 
 
 FURLONG, 566. 582, 602 
 
 FURTHER ASSURANCE, 
 covenant for, 493 
 
 where time for performance is limited, 493 
 " as counsel shall advise," 493 
 by tenant in tail, 494, 497 
 
 a.ssignees of, 495 
 
 FUTURE ESTATE. 6'ee Frkehuld, Tkum. 
 
 FUTURE PROPERTY, 
 assignment of, 40K 
 
 GABEL, GABELLUM, G A BLUM 582 
 
 GABETTUM, 582 
 
 GALE, 582 
 
 GALTELLETHUM, 582 
 
 GARDEN, 
 
 passes as appurtenant to house, 8, 187. 188 
 
 GAULUM. GAVELL, GAVELLETUM, 582 
 
 GAVEL-ERTir, .563 
 
 GAVELKIND, 
 
 lands, limited to lieir as i)iir(luuser, 25.3 
 
 to be settled under marriage .irticles, 536
 
 658 INDEX. 
 
 [The paging refers to the [*] pages.] 
 GENERAL DESCEIPTION, or HTATExMENT, 
 joined to specific, 113 (Kiile 27), 129, 132, 157 
 in recital, controlled by operative part, 129 
 in operative part does not extend specific in recital, 132 
 controlled by recital, 134, 13G — 138 
 
 specific description, 157 
 another general description, 155 
 introduced by " And also,'' &c., limited to things cjusdem generis, 173 
 
 (Rule 4(j) 
 where only freeholds pass by, 178 (Rule 47) 
 
 GENERAL NAMES, 
 what are, 153 
 
 parcels described by several, 153 
 with special description added, 154, 15(5, 157 
 
 GENERAL WORDS, Chap. XIII. , pp. 186, et seq. 
 exception among, effect of, 177 
 meaning of expression, 186, n. 
 
 things appendant or appurtenant pass without, 186 (Rule 50) 
 now implied by Conveyancing Act, 1881, s. 6, 186, 194, n. 
 restricted to that which grantor could projierly grant, 189 
 when rights of way pass under, 192, et f<eq. 
 " with all ways used and enjoyed," &c., meaning and effect of words, 
 
 196, 197 
 whether allotments pass by, 204 
 
 GIFT OVER, 
 
 on death without issue, or failure of issue, 247. 8ec Death Without 
 
 IS-SUE. 
 
 of portions. See Portions. 
 
 "GIVE" 
 
 word, covenants created by, 423 
 
 GLOSSARY OF WORDS, 557 
 
 GOAD, 600 
 
 "GOODS AND CHATTELS," 
 
 assignment by executor of all " his," 207 
 
 GORCE, GORS, GORT, 583 
 
 GORE, 567, 583 
 
 GRAMMAR, 
 
 false, disregarded, 78 (Rule 17) 
 
 GRANDCHILDREN, 
 
 a secondary meaning of children, 327 
 
 GRANGE 583, 
 
 GRANT, 
 
 deed of, construed as covenant to stand seised, 41 
 
 at common law. instances of deeds construed as, 42 
 
 taken most strongly against grantor, 94 
 
 by the Crown. Hee Crown, King. 
 
 by deed, distinguished from parol licen.-!e, 188, n. (c) 
 
 of part of tenement, 189, et seq. (See Easements. 
 
 customary, by copy, 215 
 
 word, covenants created by, 423 
 
 5.-6
 
 INDEX. G59 
 
 (The paging refers to the [•] pages. 1 
 GK'ANTEE, 
 
 coustruction in favour of, V.l (Rule 21), 217 (Rule 66), 222 
 objeeU-d to, i)~ 
 where he is also grantor, !)7 
 election by, 100 iKule-J2), 10.") 
 
 ignorant of existence of deed ol grant, estate vests in, 120 
 not named in premises, but only in Iiahendum, 'il:? (Rule (J!) 
 named alone ia premises, and together witli others in habendum, 214 
 
 (Ku]eG4) 
 not named in premises, cannot take immediate estate at common law. 214 
 
 but can take in remainder, 215 
 named in premises only, 220 
 one of several, incapable of taking, 283, 358 
 
 GRANTOR. 
 
 words construed against, 93 (Rule 21). 217 (Rule 66) 
 no implied reservation in favour of, 199 (Rule 57) 
 
 except way of necessity, or reciprocal easement, 200 
 cannot derogate from grant, 199 
 estate of, to be regarded in construing grant, 220 
 limitations to heirs, or heirs of body of, 228 (Rule 69), 2.37 ( Rule 76) 
 resulting use for life to, 238 
 election by, under exception, 106 
 
 GREEN HUE, 027 
 
 GROUND, 583 
 
 GUARANTEE. 
 
 altered by adding seals, 23 
 
 GURGITES, 583 
 
 HABENDUM, 
 
 looked at to supply or correct i)remises, 80 
 
 explaining premises and making tenancy in common, 90 
 
 repugnant, 92, 217, 221 
 
 in lease, construction. 96. See Leask. 
 
 construed against grantor, 97 
 
 general words in, controlled by recital, 134 
 
 from and after " the .said lease,'' where lease misrecited, 139 
 
 proper oflice of, to limit estate. 210, 217, 218 
 
 not essential, 210, 213 (Rule-C3) 
 
 thing granted, or parcels, need not be named in, 210, 211 (Rule 61) 
 
 named only in, do not pass, 212 (Rule 62) 
 unless implied in premises, 213 
 where none, 213 (liule (3) 
 grantee named only in, 213, 214, 215 
 named together with others in, but alone in ])remises, 214 i Rujc 64) 
 
 not named in, 220 
 e.statcs, express, limited only in, 215 (Rule 65) 
 
 limited in, and also in prcmi.scs, 217 (Rule 66), 221 
 repugnant to ))r<'niises. 217, 221 
 
 may extend but not abridge jMemises, 218, 219; but sec 221, 222 
 in fee, following life estate, 218, 219 
 
 estate tail, 219 
 in tail, following fee simple estate, 218 
 for life or years, followinii limitation in fci- sinii>le, 221 
 explaining " heirs " to mean " heirs of body," 218 
 to A., " his heirs and assigns," following grant to A., • his executors, " 
 
 &c., 219 
 controlling joint tt;iiaiicy, 90, 219, cf. 2(J9 
 
 587 •
 
 660 INDKX 
 
 IThe paging refers to the | • ) pages.] 
 HABENDUM— can/(»?t(»(('. 
 
 rejected as void, 215, et seq.. 219, 220 
 void, construction of. to qualify premises, 219 
 enlarning premises, 219 
 
 to B. 'alone, following grant to A. & B.. 220 
 limiting freehold in futitro, rejected, 220 
 
 term assigaed, to A., habendum to J. and another for lives, with re- 
 mainders over, habendum rejected, 220 
 assigned, habendum after death of grantor, 220 , 
 
 chattel assigned, habendum in futuro, 220 
 in grant of life estate, 220 
 
 estates in, different irom premises, where further act necessary to per- 
 fect one of them, 221 
 for less estate than that limited in premises, 219, 221 
 to A., " his heirs and assigns for life," 220 
 and limitation of uses, construction of, 268, 269 
 to feoffees "and their heirs for ever, to use of the feoffees for ever, " 268, 269 
 
 HAIA, 58.] 
 
 HALYMOTE, 584 
 
 HAM, 569, 584 
 
 HAMLET, 534 
 
 HAYBOTE, 584 
 
 HEADLAND, 567, 580 
 
 HEDGE, 584 
 
 HEIR IN THE SINGULAR, 
 
 A. and his. 225 
 
 the '• heir of his body," 232, 252 
 A. for life with remainder to his, 252 
 " heir or heirs," 225 
 meaning heirs, 225, 253 
 of deceased person, 228 
 heir of the body applied to personalty, 261 
 
 heir at common law takes under limitation to, as purchaser. 253 
 " female of the body," 256. 296 
 in marriage articles, 542 
 
 HEIRS. &e Fee Simple, Heirs as Puechasebs, Limitation.s,- Marriage 
 Articles. 
 limitation to A. and B. " ci hasndihus,^^ void for uncertainty, 112, 114 
 A. "and his heirs, "or " heirs and assigns," 224 (Rule 67) 
 
 with remainder t<)B.. who may be heir of A., 234 
 in marriage articles, 535 
 " his " omitted, 225 
 ■ for a term of years, 245 
 during life of B., 246 
 
 with limitation over on death of A. without 
 issue, 248 
 heirs of particnlar description, as purchasers, 115, 254 
 A. " or " his heirs, 230 (Rule 71) 
 
 '• heirs of A. and B.," where A. is dead and B. alive, 228, n. (e). 
 A. and his " heirs male," 230 (Rule 72), 233, 250 
 in Crown grant, 231 
 in peerage. 231 
 
 in grant of armorial bearings, 231 
 A. and " his heirs of the body of his fatber," 231 
 
 588
 
 INDEX. 6()1 
 
 [The paging refers to the L'J pages. 1 
 HEIRS — conlinucd. 
 
 limitation to A. and "/Ac heirs of the body of his father," 237 
 the heirs of A. deceased, 228 
 
 and B. 228 
 of A. (tlie heir of B.) and the heirs of B., 228 
 explained by habendum to mean " heirs of body," 218 
 
 to mean '"special occupants." 218, 219 
 construed "heirs of body," 234(Kule 74), 248 (Rule 84), 250 
 habendum to, in assignment of term. 220 
 grant to A. and his heirs habendum for life or years, 219, 221 
 word, rejected on context, 225, 2:2G 
 supplied by context, 240 
 
 extended by implying parenthesis to all children, 240 
 word, not essential, in limitations to king or corporations, 226 
 in releases or partition deeds, when, 227 
 when fee limited by reference, 227 
 in tine or recovery, 228 
 
 in declarations vesting property in new trustees, 228 
 in customary assurances of copyholds, 224 
 or " heir " of deceased person, limitations to, 228 (Rule 68) 
 of grantor, limitation in remainder to, 228 (Rule 69), 229, 288 
 
 trust to convey to, 229 
 of living person not grantor, in remainder to, 229 (Rule 70) 
 word, in limitations of settlements, extended bv parenthesis, &c.. to aU 
 
 children, 240 (Rule 79) 
 when word of limitation; rule in Shelley^s Case, 242 (Rule 81) 
 word applied to personaUij, 257, it seq. 
 
 personaltv limited to A. "and his heirs," 257 (Rule 93) 
 to " the heirs of A.," 257 (Rule 94) 
 to heirs of A. in substitution for A. 257 (Rule 95) 
 meaning statutory next of kin, 258 
 HEIRS AS PURCHASERS, Chap. XVII.. pp. 252, et seq. 
 
 limitations to A. for life, remainder to " heir," or " heir of body," 252 
 (Rule 87) 
 remainder to "heir of body and heirs (or 
 heirs of body) of such heir," 252 (Rule 88} 
 heir at common law takes, 253 (Rule 89) 
 
 with qualification added, as " male," " female." &c., 254 (Rule 90} 
 heir male (or female) of body, need not be heir general, 255 (Rule 91) 
 "heirs of body " c(mstrued "children," and words of purchase, not- 
 withstanding freehold estate in ancestor, 256 (Rule 92) 
 in marriage articles, 542 
 under trusts of freeholds and leaseholds together, 257 
 
 of personalty, 257 • 
 
 HEIRS OF THE BODY. Sec Estate Tail, Limitations, Makeiage Ae- 
 
 TICI.ES. 
 
 " A. and the heirs of his body," 231 (Rule 73), et seq. 
 the bod V of H.," 237 
 " heir " in singular " of his body," 232 
 " heir or heirs of his l)ody," 232 
 his heirs of the body of his father," 231 
 the heirs of the body of his father, 237 
 "A., and B. his wife, and the heirs of the body of A.," 235 
 
 of A. which he shall beget on the 
 
 body of P..," 235 
 of llie body of B. by A. begotten," 
 
 235 
 which A. shall beget on the body of 
 B.," 236 
 
 589 .
 
 i)&2 INDEX, • - 
 
 (The paging refers to the [" 1 pages.] 
 HEIRS OF THE BODY— continued 
 
 " A. and B. and the heirs of their bodies," 231) 
 
 •'heirs of the body of A." (a deceased person). 237 (Rule 75) 
 
 (a living person) in remainder, 237 (Rule 76), 
 288 
 "A. for lite, remainder to the heirs of the body of A. and B.," 239 
 " of his body " supplied by conte.xt, 233, 234 
 
 in marriage settlement extended to all children by par- 
 enthesis, 240 (Rule 79) 
 "of" distinguished Irom ""on " the body, 235 ' 
 
 person from whom they proceed must be designated, 235 
 "begotten," 236 
 
 in limitations of copyholds, 241 (Rule 80) 
 
 where words of limitation; rule in SheUfifn Case, 242 (Rule 81) 
 purchase, meaning children, 256 (Rule 92), 262 
 applied to personalfij, 
 
 " A. and the heirs of his body," or " A. for life with remainder to heirs 
 of his body." 260 (Rule 96) 
 followed by gift, over on failure of issue, 261 
 ■where " heir " of body in singular, 261 
 "their executors," &c., added. 261 
 executory trust for heirs of body, 261 
 construed as words of purchase, 261. 262 
 meaning statutory next of kin descending froa» the ancestor, 262 
 
 HEIRLOOMS, 
 
 covenant to settle chattels as by reference to limitations of realty, 547 
 
 HENCEFORTH, 
 
 means from delivery, not date, ol deed, 120 
 
 HERBAGE, 585 
 
 HEREDITAMENT. 586 
 
 HIDE, 587, 596, 597 
 
 HIGHWAY. See Road. 
 
 conveyance of land abutting on, 179 
 
 HONOUR, 588 . . 
 
 HOTCHPOT CLAUSE. 
 
 whetli^r to be insei'ted in settlements under articles, 548 
 
 HOUSE, 
 
 distinguished from messuage, 588 
 may mean part of house, as set of chambers. 602, n. 
 conveyance of, pa.sses appurtenances, as garden, ways, conduit, estovers, 
 &c., 8, 187, 188 
 curtilage, 588 
 doors, keys, &c., 588 
 when passes land usually occupied with, 188 
 windows, rights as to, 190. 191 
 built by purchaser of building plot, 191 
 
 road made for u.se of. whether right of way on severance, 193 
 support, easement of, 200 
 
 HUNDRED, 588 
 
 HUSBAND AND WIFE. See Markied Woman, Separate Use. 
 
 estates limited to, construction, 235, 239 (Rules 77, 78), 280, et seq., 282 
 effect ot Married Women's Property Act, 1882, on gifts to, 281 
 seisin of, how pleaded, 572 
 
 590
 
 INDEX. 663 
 
 [The paging refers to the ;"J pages. ] 
 HUSBANDLAND, 589 
 
 ILLEGIBLE DOCUMENTS, 56 
 
 ILLEGITIMATE CHILD. See Bastard. 
 
 IMPLICATION, ESTATES BY, Chnp. XX. pp. 28G, cl seq. 
 
 resultiug fee simple to grantor, wliere no consideration and no uses de- 
 clared, 28(j (Kule IIU) 
 use to grantor where uses declared do not exhaust lee, 287 (Rule 
 
 111) 
 fee simple in grantor where there is a limitation to his heire, 228 
 (Rule ()t)) 
 where whole use during grantor's life not disi^osed of, 287 (Rule 112) 
 cross-remainders not implied, 289 (Rule 114) 
 
 except in executory instruments, 294, 542 (Rule 190) 
 none in favour of grantor on conveyance for life or in tail without con- 
 sideration, 149 
 stranger, 288 (Rule li:?) 
 
 IMPLIED WORDS OR CLAUSES. See Ckoss-Remainders. 
 expression of, has no effect, 85 (Rule 18), 87, 89 
 excluded by express provisions, 89 (Rule 19), 418, 424 
 accruer ot portions, 388 
 
 INACCURACIES, 
 
 delined,- 103 
 
 distinguished from equivocations, 103, 114 
 
 deed or clause made void by, 114 (Rule 28) 
 
 rejected, where rest of description sufficient, 115 (Rule 29), 158 
 
 where direct evidence of intention admitted to explain, 115, 116 
 
 where part of description applicable to A., and other part to B., 116 
 
 (Rule 30) 
 giving rise to equivocation, 115 
 
 patent ambiguity, 116 
 
 INCLOSURE AWARD, 
 
 ambignous, evidence of acts of owners, 67 
 rights of way under, 198 
 
 INCONSISTENT CLAUSES, 
 
 in deed, first prevails, 91 (Rule 20). See Repugnant. 
 
 INCUMBRANCES, COVENANT AGAINST. See Covenants Qualified. 
 whether it extends to incumbrances of which purchaser has notice, 481 
 
 INDEFINITE LIMITATION. 
 
 in premises and express in habendum, 215 
 gives estate for life only. 295 
 
 not enlarged by a directtion to pay money, 296 
 
 by legal estate in fee given to trustees, 296 
 
 INDENTURE. See Deed. 
 
 words of, to whom a.scribed, 98 
 
 INDORSEMENT. 
 
 on deed, evidence as to when made, 6 
 read as i)art of deed, when, 15 
 
 INFANT, 
 
 deed not binding on, 5 
 
 wife, covenant to settle by, .529 
 
 election to confirm when ad;iit, 529, n. 
 
 591
 
 664 INDEX. 
 
 [The paging refers to the ;'3 pages. J 
 INLAND, 590 
 
 IN LOCO PARENTIS, PEKSON, 
 who is, 350 
 
 provisions for younger children made by, 337, et seq. 
 in settlement on children by, contingency of surviving parents disre- 
 garded if possible, 397 
 
 INSUEANCE. See Marine Insurance Policy. 
 
 INTENTION, 
 
 word, meanings of, 36 
 
 expressed, alone to be regarded, 36 et seq., 48, 50, 51, 52 
 
 effectuated, notwithstanding inapt form of deed, 40, et seq. 
 
 specific or particular, prevails over general, 113 (Rule 27) 
 to be collected fiom every part- of deed, 76 
 direct evidence of See Direct Evidence of Intention. 
 unexpressed, evidence as to, inadmissible, 49 
 
 INTEBE8SE TERBIINI, 205 
 
 INTEREST, 
 
 word, meaning of, 205 
 
 interim, effect in vesting portions, 369, 372 393 
 
 INTERLINEATIONS. See Alterations. 
 in deed, presumption as to when made, 17 
 
 INTERRUPTION, 
 
 meaning of. in covenant for quiet enjoyment, 483 
 suit in equity is, 482 
 
 INTRINSIC EVIDENCE. See EvinENCE, Intrinsic. 
 
 INTRUSION, 570 
 
 INVENTORY. See Schedule. 
 
 ISSUE. See Death withott Issue, Marriage Articles. 
 meaning of, 320 (Rule 128) 
 
 in marriage articles, 542, 545 
 cut down to children, when, 323 
 l)y reference to parent, 326 
 in marriage articles, 550, et seq. 
 in some clauses only, 327 
 "male." 326, 542 
 "female," 326, 542 
 is a word of purchase, 318 (Rule 127) 
 limitaticm of realty to. gives life estate, 319 
 
 "A. and his issue," 225, 535 
 "A., the issue of his body," 232 
 trust of personalty for "A. and his issue," 320 
 power to appoint to, in marriage articles, .551 
 
 JOINT COVENANTS, See Covenants, Joint and Several. 
 
 "JOINT AND NATURAL LIVES," 283 
 
 JOINT' TENANCY, 
 
 how created, 279 (Rule 105), et seq. 
 
 estates must be of the same nature. 282 (Rule 106) 
 
 for life with several inheritances, 239, 240, 280, 282 
 
 "benefit of survivorship," 283 
 gift to two corporations, 280 
 
 persons one of whom is incapable, 283 
 
 592
 
 INDEX. 665 
 
 [The paging refers to the [•] pages.] 
 JOINT TENANCY— co»//»«eY/. 
 
 title ac-c)uired under Statute of Limitations, 280 
 
 settlement of personalty. 280 
 purcliase by several per.sons, 281 
 under limitation "jointly and severally," 284 
 to class, o57 
 
 under implied gift in default of appointment, 365 
 in tail in remainder, 282, 283 
 controlled by habendum, 210 
 in lease, with proviso as to successive occupation, 210 
 
 .JOINTURE, 
 
 deed, cancelled by husband, 23 
 ' power to charge, whether inserted in settlement under articles, 556 
 
 KANTRED, r,64 
 
 KIDDLE or KIDLE, 590 
 
 KIN. See Next of Kin. 
 
 KING. See Ckowx. 
 
 grant bj^, taken most strongly against grantee, 99 
 to A. and his "heirs male.'' void, 231 
 limitations to, " and his heirs Kings of England," 226 
 
 "and his successors Kings of England," ib.' 
 and ordinary person, tenancy in common, 280 
 takes fee simple without words " heirs " or " succes.sors, " 226 
 seisin of, how pleaded, 572 
 
 KNIGHT'S FEE, 590 , 
 
 manor may pass by name of, 595 
 
 LAKE, 
 
 ownership of soil of, 182 
 
 LAMMAS MEADOWS, 590 * 
 
 LAND, 590 
 
 may pass by grant of meadow, 595 
 
 pastures, 607 
 
 warren, 629 
 mines and minerals may pa.ss by grant of, 603 
 
 LANDLORD AND TENANT. See Lease. 
 e.stopped as between. 142 
 
 LAND TAX 
 
 redeemed ])ut not merged, whether passed by '■ all estate " clause, 209 
 
 LATENT AMBIGUITY. Sec Amijiguity. 
 
 LANVDAY, 591 
 
 LEAP, 601 
 
 LEAP YEAR, 
 
 covenant to pay on 29th February tlien next, 125 
 
 LEASK. See Agkickment, Tkioi. 
 
 im])lied terms added to, on evidence of custom, 1 1 
 cancellation of, Tiot a surrender, 25 
 examples of deeds construed as, -ll, 45 
 agreement foi-. whi'n amounls lo lease. 45 
 covenant fur renewal in, construed by usage, 74 
 inapplicable provisions rejected by force of <'ontext, 81 
 
 3H INTKKI'ItET.\TI()X OI' DKKMH. 593 •
 
 066 INDEX. 
 
 [The paging refers to the [*] pages.] 
 IjEASE— continued. 
 
 clauses in, of distress or re-entry, 86 
 
 "demise," "let," &c., covenants implied by words, 90, 422, 423, 424 
 repugnant clauses, 92 
 by tenant for life, or in tail, 94, 95 
 construed in tlivour of lessee, 95, 96 
 covenant by lessee, construed against him, 97 
 prnviso in, construction, 97 
 
 commencement of, determined by election of lessee, 106J 
 ' ' from henceforth, ' ' 120 
 " from the day of the date," 124 (Rule 24) 
 where misrecital, 124, 139 
 expires, when, 124 
 
 with exception of so many acres not particularly described, 106, 107 
 "for seven, fourteen, or twenty-one years," 97, 107 
 delivered as escrow, 122 
 under power to lease in possession, 124 
 parcels in, road, uninclosed strips, 135, 180 
 misrecilal of, in grant of reversion or reversionary lease, 139 
 power in, to lessor to take back part, 176 
 to A. till a sum of money be paid. 246 
 covenants in, liability and benefit of, under Conveyancing Act, 1881, 434, n. 
 
 benefit of, whether joint or several, 440 
 
 whether dependent or independent, 465 
 
 LEASEHOLDS, 
 
 voluntary conveyance of, 149 
 
 when, do not pass under general description, 178 (Rule 47) 
 
 when, pass as "personal property," 176, 177, 178 
 
 for lives, conveyed upon trust for A., 278 
 
 "LEAVE," 
 
 construed "have," 404 
 
 LEET, 592 * 
 
 LEGACIES, 
 
 payable at future time or event, 382 
 
 LEGAL ESTATE. See Trustees. 
 
 " LEGAL REPRESENTATIVES," 
 trust for, 317 
 
 LEGAL TERMS, 
 
 must bear their technical meaning, 62 
 
 LEGITIMATE CHILDREN. See Children. 
 
 "LET," 
 
 covenants in lease implied by word, 423 
 
 LETTERS. See Correspondence. 
 
 not evidence to control agreement, 4 
 
 LEUCA, LEUGA, or LEUNA, 596, 597 
 
 LIABILITY UNDER COVENANTS. See COVENANTS Joint AND Several. 
 proviso negativing, 427 
 
 LIBERTY. 581 
 
 LIBRATA TERRiE, .592, 598 
 
 594
 
 INDEX. 667 
 
 [The paging refers to lUt- ;•] pages. 2 
 LICENSE, 
 
 construed as lease, 44 
 
 parol, distinguished from grant by deed, 188, n. (c) 
 
 LIFE ESTATE. See E.STATK foe Life. 
 
 LIGHT. 
 
 easement of, on conveyance of house, 190, 191 
 
 LIMITATIONS. See EsT.vTE for Life, Estate Tail. Fee Simple, Iieiks, 
 Heiks of the Body. King, Joint Tenants. Tenants in Com.mon.' 
 omitted words in, supplied by context. Si), 233 
 explained by recitals, Vol 
 
 in premises explained by habendum, 217 (Rule 66) 
 repugnant, 217 
 to '-A. and his eldest child,'" 283, 358 
 
 "successively," 358 
 king in fee simple, by what words, 226. See King. 
 corporations, 226 
 
 " heir " female of body as purchaser. 2r)6 
 "issue male" of A., 280 
 
 "issues female and the heirs male of their bodies," 280 
 two persons successively for life, remainder to the heirs of their 
 
 bodies, 282. 283 
 two persons who cannot intermarry, 282 
 
 two or more persons, and the lieivs (or heirs of body) of one, 283 
 and their heirs, 283 
 
 where one of them incapable of taking, 283 
 "during their joint and natural lives," 283 
 "ami the survivor and the heirs of the sur- 
 vivor," 283 
 jointly for their lives, remainder jointly to 
 
 heirs, 283 
 "jointly and severally," 284 
 feoffees and their heirs to use of tlie feoffees for ever, 268, 269 
 several persons, their heirs and assigns, as tenants in common, to 
 the use of them, their lieirs and assigns, 269 
 equitable, construction of 276 (Rule 104), el .seq. 
 
 sivHS in renewable lease for lives, 278 
 in settlements, different construction fnmi wills, 274 
 
 LIMITATIONS, STATUTE OF, 
 
 title acquired under, joint tenancy, 280 
 
 LINCES, 592 
 
 LINK, 601 
 
 LIQUIDATED DAMAGES. 
 
 or penaltj'. whether sum named on breach of covenent is, 428 (Rule ].">9) 
 specific performance of covenants secured by, 430 
 
 " LITERAL " MEANING, 
 of words, 48 
 
 LIVERY OF SEISIN, 
 
 no longer ncces.sary, 222 
 
 LLATir. 599, 600, 601 
 
 LOCALITY. -SVy I'ah( els. 
 
 parcels restricted hy, 159, 163 
 
 inaccurate description of. rejected, 168, 172 
 LOT MEADOW, .592 
 
 505 ■
 
 668 INDKX. 
 
 [The paging refers to the L'J pagea.] 
 
 LUG or LUGG, 600 
 
 LYNCHES, 592 
 
 M.EKEMIUM, 
 
 meaning of, 89, n. 
 
 MAINTENANCE, 
 
 effect of interim, in vesting portions, :569, 372, 393, 394 
 
 MALINS' ACT, 20 & 21 YiCT. c. 57, 
 effect of, on covenants to settle, 524 
 
 MANOPEK^, 572, u. 
 
 MANOR. Sec Township. 
 meaning of, 592 
 may contain several towns, 593 
 a parish or town may contain more than one, 593 
 origin and constitution of, 593 
 connection of, with vill, 624, ct neq. 
 what passefi by grant of, generally, 187, 593 
 
 advovvson, 559 
 
 castle, 565, 594 
 
 carucate, 594 
 
 demesnes, 571 
 
 fishery, 579 
 
 ioreshore, 72, 580 
 
 forest, 580 
 
 franchises. 581 
 
 honour, 594 
 
 hundred, 589, 594 
 
 leet, 594 
 
 park, 606 
 
 rent, 594 
 
 reputed manor, 595 
 
 reversion of part of, 594 
 what jjrrs.sr.s- by grant of, 
 
 sul)-manor. 594 
 
 toll, 624 
 
 town. 594, 621 
 
 warren, 594, ()29 
 maij paH.i by grant if castle, 595 
 
 chauntry, 595 
 
 hereditaments, 586 ^ 
 
 honour, 588 
 
 knight's fee, 590, 595 
 
 land, 595 
 
 messuage, 595 
 
 prior}', 595 
 
 MANUKABLE, 571, 595 
 
 MAP, 
 
 n,<)t evidence to explain parcels when annexed to, hut not referred to in 
 
 conveyance, 4, 162 
 inaccurate, rejected, 160 
 held restrictive of parcels, 161 
 held not restrictive, 169 
 evidence as to, 161 
 
 construction of, whether matter of fact or of law, 161, 162, 
 incorporation of, in conveyance. 162 
 held to control acreage stated in schedule. 166 
 
 59G
 
 INDEX. 
 
 669 
 
 IThe paging refers to the ['] pages.] 
 
 MARINE INSUKAN'CE. 
 
 policies, evidence of custom to add tenns to, 13 
 
 MARKET, 595 
 
 MARRIAGE, 
 
 means valid marriage, 331 (Rule 133) • 
 
 settlement in consideration of. means the then intended marriage, 3.« 
 never solemnized, 332 
 invalid, etiect on settlement. :)31. 332 
 
 MARRIAGE ARTICLES. Chap. XXXII., p. 532 
 executed and executory trusts defined, 5.32 
 specific performance of, 454, n. 
 direction to convey. 533 
 
 to settle "'as counsel shall advise." 533 \iiule 189) 
 in executory trusts, when technical language disregarded, 531 (Rule 190) 
 distinguished from voluntary settlements and wills, 535, 539 (Ix'ule 194), 
 
 nature and purpose point to strict settlement, 535 (Rule 191), 540 
 
 ■where no express life estate to parent, 5:;(i 
 
 rule applied in favour of daughters, 536 
 
 gavelkind or borough-English lands. 53(} 
 
 contejit maj- exclude rule, 537 
 
 exceptions to rule requiring strict settlement. 537 
 
 (1) where one parent alone could not defeat settlement. 537 
 
 (2) where articles settle pnrt strictly, 537 
 
 (3) where limitation to heirs V)f body follows limitation to sons as 
 
 purchasers. 537 
 articles and settlement both before marriage, 537 (Rule 192) 
 articles before and settlement after marriage, 538 (liule 193) 
 letter followed by articles, 539 
 
 exception as to variance in interest limited to adult. .)39 
 examples where strict settlement decreed, 541 
 oftheformi)t'flns(tfIemrnt,n4-:2.efscq. 
 land, "A. aiid his heirs.r " heirs of the body.'' " issue," 53o (^Ivule 191) 
 
 '•heirs male of body," -'issue male." 542 (Rule 195) 
 
 "heirs female of body " mean daughters, 542 
 
 "first male issue," 542 
 
 "is.sue male," .sou of daughter, 542 
 
 "heirs of the body," or " issue." 542 (Rule 196) 
 
 "issue" means both .sons and daughters, 543 
 
 "settle," agreement to. force of word. 543 
 
 " issue, their heirs and as.signs," 544 
 
 torm of gift over, 544 
 
 exception, fee simple in default of appointment. 545 
 
 "heirs of the body " after "heirs male of the body," 545 
 
 '•issue, whetlier son or daughter," tenants in common m fee, 545 
 
 "child or children of the marriage," 515 
 
 " nearest relative; iu the male line," 540 
 
 miscellaneous, trustees to j)re.serve. 546 
 
 life estate, impeachment for waste. 546 
 
 without ]iower of anticipaticm, 54() 
 covenant to .settle chattels by reference to strict settlement. 547 (Rule 
 
 197) 
 personalty. 547 
 
 restraint on antiei])ation. 54H 
 
 children tak<- as tenants in common. 548 
 at 21 or marriage, 54H 
 
 hotchpot clause, whether inserted. 54H 
 
 5i)7 •
 
 670 
 
 INDEX. 
 
 [The paging refers to the [•] pages.] 
 MARRIAGE ARTICLES—continued. 
 personalty — continued. 
 
 trusts in default of children, gift to wife, 548 
 
 ultimate trusts, 549 
 
 husband entitled as wife's administrator, 549 
 
 "issue" may mean "'children," 549 (Rule 197) 
 
 power to appoint to, 550 
 general power cut down to power to appoint among children, 551 
 what powers are to be inserted, 55:2, et seq. , 
 
 whether any distinction between wills, articles, &c., 552 
 distinction between powers of management and of charging, 553 
 maintenance, education, dnd advancement, 553 
 new trustees, 553 
 to vary securities, 554 
 of leasing, sale, exchange, &c., 554 
 mining leases, 554 
 partition, 554 
 realty becoming subject to same trusts as personalty, 555 
 
 to be purchased and held as personalty, 655 
 power to raise money, 555 
 
 to give receipts, 555 
 
 to raise portions or jointure, 556 
 where certain powers specified, " usual powers," 556 » 
 
 aliens, realty becoming subject to trusts of personalty, 556 
 
 MARRIAGE SETTLEMENTS. See SettlemeiNT. 
 where marriage not solemnized, 332, 333 
 invalid, 332 
 
 MARRIED WOMAN. See Coverture, During Coverture, Marriage 
 Articles, Separate Use, Settlement, Wife. 
 estoppel against, 142 
 
 trust for, during coverture, when extended to life, 294 
 when trustee for, takes legal estate, 272 
 post-nuptial settlement of land of, is not voluntary, 148 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882 
 
 eftect of, on limitations to husband and wife, 281 
 
 MATERIAL ALTERATIONS. See Alterations. 
 MAXIMS, 
 
 AccesHoriiim mm diicif sed seqiiifiir mtan principale, 186, 187 
 
 Contenipoianea expodtio eM fortissima in lege, 67 
 
 Cujns est solum ejus est usque ad cwlum, 591 
 
 Desiffnatio unius est excJusio alterius, 89 (Rule 19) 
 
 Ex antecedentibus et consequentibus est optima interpretatio, 76 
 
 Kxpressio eorum qu,x taciie insunt nihil operatiir, 85 
 
 Expressuni facit ccssare tacitunK 89 (Rule 19), 418, 424 
 
 Falxa dcmonstratio non nocet, 157 (Rule 45 j 
 
 3Iala grammatica non vitiat chartam, 78 
 
 Non accipi dehent verba in demonstration em falsam quse competunt in limita- 
 tionem reram, 156 
 
 Optimus interpns rerum tisus, 69 
 
 Qurelibet eoncessio fortissime contra donatorcm interpretanda est, 94 
 
 Qui h;eiet in lilera, hasret in corticc, 77 
 
 MEADOW, 595 
 MEANING, 
 
 jjrimary, what is, 48 
 MEANS, 
 
 in covenant for quiet enjoyment, meaning of, 487. 48S 
 598
 
 index'. " 671 
 
 [The paging refers to the f] pages.] 
 MEASE or MESE, 596 
 
 MEASURES OF LAND, 
 customary, 598 
 Domesday. 59G 
 mediaeval, 597 
 modern, 602 
 
 MEMORIAL, 
 
 correcting deed by, 8 
 
 MERCANTILE CONTRACTS, 
 
 e%idencc, to add implied terms, 9 et seq. 
 to explain expressed terms, 57, et seq. 
 
 "MERCY, TO BE IN," 
 explained, 560 
 
 MESSUAGE. See House. 
 meaning of, 602 
 
 as to whether garden passes by grant of, 603 
 manor may pass by grant of, 595 
 
 MILE, 602 
 
 MILL. 
 
 what passes by grant of, 187, 603 
 what words will pass, 603 
 prescription as to grinding at, 603 
 
 MINES AND MINERALS. 
 
 meaning of, distinguished, 604 
 what passes tiy the words, 604 
 by wliat words mines pass, 603 
 when they pass in a lease, 603, 604 
 
 MISDESCRIPTION. &c Namk, Parcels. 
 
 MISERICORDIA, 560 
 
 MISRECITAL, 139, et seq. (Rule 38), 140 
 may influence construction, 140 
 of lease. See Lease. 
 
 MISTAKE. 
 
 deed not binding owing to, 5 
 deed cancelled or altered by, 34 
 as to rights under deed, 75 
 corrected from context, 80, 81, 82 
 
 MORTGACiE. 
 
 expenses incurred by mortgagee, no stamp in respect ol, 87 
 
 debt, made ])ayable to mortgagee, his " heirs or executors," 106 
 
 deed, letained by mortgagor and not communicated, 121 
 
 transfer ot, power of sale. 1:51 
 
 tenancy in common between mortgagees, 282 
 
 agreement to execute, effect of, in creating specialty debt, 425 
 
 MUTUAL COVENANTS. Sec COVENANTS, Mutual. 
 
 NAME. ,SVc Parcels. 
 of baptism, 12."). 126 
 surname, 125 
 
 may be changed, 128 
 reputed naiiie, jjarly to deed described by, 126, 128 
 
 599 .
 
 672 INDEX. 
 
 [The paging refers to the [*] pages.] 
 
 NAME — continued. 
 
 party described by incorrect name but executing in correct name, 126 
 firm, 126 
 
 corporation, 125, 127 
 of bastard, 127 
 
 reputed wife, 128 
 
 divorced woman, ib. 
 general, what is, 153 
 collective, 155 
 omitted from premises supplied from habendum, 80 
 
 operative part supplied from recitals, 136 
 wrongly stated in premises corrected from habendum, 80 
 
 NECESSARY EASEMENTS, 189, 190. See EASEMENTS. 
 
 NECESSITY. .S'eeWAY. 
 way of, 191 
 
 " NEGLECT," 488, 489 
 
 NEW TRUSTEES, 
 
 construction of conveyance to, 136 
 
 fee passes to, by vesting declaration without the word " heirs," 228 
 
 "NEXT OF KIN." See " Next OF KiN AccoEDiNG to the Statute." 
 meaning of, 304 
 
 with various words added, 306, 309, 311 
 do not include husband or wife, 307 (Rule 122) 
 when ascertained, 309 
 distinguished from "executors," 313 
 take as joint tenants, 306 (Rule 120) 
 
 ultimate trust for, persons taking prior interests not excluded, 308 
 realty limited to, 277, 307 
 when they take as "heirs," 257 (Rule 95) 
 
 " heirs of the body," 262 (Rule 97) 
 "personal representatives," 316 
 gift to. of A. "as if she had died intestate and unmarried," 334 (Rule 
 
 135) 
 without Having been 
 married, 335 
 
 NEXT OF KIN ACCORDING TO THE STATUTE. See " Next op Kin." 
 meaning of. 307 
 
 "of the name ofB.," 311 
 does not include husband or wife, 307 
 when ascertained, 309 (Rule 123) 
 distinguished from "executors, " 313 
 take as tenants in common, 307 (Rule 121) 
 
 ultimate trust for, persons taking prior interest not excluded, 308 
 gift to, of A. "as if she had died intestate and unmarried," 334 (Rule 
 ° • 135 
 
 without having been 
 married, 335 
 
 NEXT PRESENTATION, 605 
 
 NOKA, 605 
 
 NOTICE, 
 
 constructive, by recital, 144 
 
 by absence of receipt, 152 
 to trustees, want of, does not suspend operation of deed, 121 
 
 600
 
 INDEX. 673 
 
 [The paglni; refers t > the |*1 pages.] 
 NUMMATA TERR^, GO.") 
 
 OBLATIONS. 60") 
 
 OBLITERATION. See ALTERATIONS 
 
 OBLATA TERRiE, 598, 605 
 
 OBVENTIONS, 605 
 
 OCCUPANCY, 
 
 erroneous description of, rejected, 154, 167, 171 
 words descriptive of, held to restrict parcels, 160, J64 
 
 OCCUPATION, 
 defined. 605 
 estate for life created by the word, 605 
 
 OFFERINGS, 605 
 
 OMITTED. See Estate Tail, Parcels. 
 words supplied on context, 78 (Rule 17) 
 
 in limitations, 233, 236 
 but not by intrinsic evidence. 4 
 name, in operative part, supplied from recitals, 136 
 
 OPERATIVE PART. See Recitals. 
 
 of deed, if clear, not controlled by recital, 129 (Rule 36) 
 
 if ambiguous, controlled by recital, 132 (Rule 37) 
 of release, controlled by recitals, 137 
 name of grantor omitted from, supplied from context, 136 
 
 OPTION, 
 
 in lessee to purchase fee, exercised liy his executors or administrators, 315 
 
 "OR" 
 
 read "and," 248 
 
 "OR OTHERWISE." 
 
 restricted to puiposes ejusdem generis, 176 
 
 "OTHER THAN," 
 
 an eldest son, 354 
 
 OXGANG, 564 
 
 OXGATE, 564 
 
 OXLAND, 601 
 
 PALADR, 599, 600 
 
 PANNAGE, PANNAGIUM, 606 
 
 PARCELS. See Hahendu.m, PiiEMi.«;ES, Road. Chap. XII., pp. 153, <i neq. 
 cannot be explained or restricted by conditions of .sale, 4 
 
 contract for sale, 4 
 nuip not referred to in conveyance, 4 
 explained by usage, 71 
 where restricted by recitals, 133, 134. 135, 137 
 
 words of locality, 1.59, 160, 163, 164 
 
 occupancy, 160, 164 
 
 enumeration, 161 
 
 special dcscriptidu, 163, 165 
 
 tenure, 164 
 
 map, 161 
 
 601 .
 
 674 INDEX. 
 
 [The paging refers to the [*] pages.] 
 PARCELS— continued. 
 
 where not restricted by recitals, 131 
 
 words of local itv, 168, 171 
 name of parish," 169, 172, 173 
 occupancy, 154, 167 
 enumeration, 169 
 special description, 170, 171, 172 
 tenure, 172 
 
 quantity, 165, 166, 171 
 boundaries, 166, 167 
 map, 4, 160, 169 
 proper name, 165 
 described by reference to schedule, 4, 135, 163, 166, 170 
 former deed, 135 
 general names only, 153, 156 (Rule 43) 
 
 name and special description, 154, 156 (Rule 44) 
 inconsistent descriptions, 172 
 express words exclude implication, 89, 90 
 "/rt/.sr/ (lemonsl ratio non nocet,^' 157 (Rule 45) 
 " used, occupied, &c.. with," where lands pass as, 96, 97, 188 
 "and also,'' 173 (Rule 46) 
 leaseholds or copyholds, where they do not pass by general description, 
 
 178 (Rule 47) 
 leaseholds passing as "' perscmal property," 178 
 need not be named in habendum, 210, 211 (Rule 61) 
 named in habendum only do not pass, 212 (Rule 62) 
 unless implied in premises, 213 
 
 PAROUS, 606 
 
 PARENT AND HIS CHILDREN, 
 limitation to, 357 
 
 PARENTHESIS, 
 
 may be supplied, 78, 240 
 
 PARISH, 
 
 distinguished from vill, 168, n. 
 
 conveyance of all A.'s lands in a, ib. , 
 
 of same name as vill, ib. 
 
 wrongly named in parcels, 169, 172 
 
 PARK, 606 
 
 may be parcel of manor, 606 
 
 PAROL AGREEMENT, 
 
 subsequent, to waive, annul, or vary deed, 3 
 c ntemporaneous, 4 
 collateral, not inconsistent, 6 
 
 PAROL EVIDENCE. See Evidence, Extrinsic. 
 defined, 109 
 inaccurate use of the term, 109 
 
 PART OF TENEMENT, 
 
 grant of, easements passing by, 189, et scq. 
 
 on contemporaneous sales, 202 (Rule 58) 
 reserved on, 199, 200 
 reciprocal, implied on, 200 
 
 PARTICATA TERR^, 606 
 G02
 
 INDEX. 675 
 
 [The paging refers to the ['] pages. ] 
 
 PAETICIPLES, 
 
 clauses introduced by, may atuount to covenants, 419. 464 
 
 condition precedent. 11)5 
 qaulilication of cov( .. mt, 420 
 
 PARTICULAR 
 
 joined to general statement, 11.') (Rnle 27), 129, 132 
 description. 129, lo2, l.")7 
 
 PARTIES. 125, cf scq. 
 
 description of, evidence to correct, 125 (Rule 35) 
 names of. See Name. 
 ' described by class name, 126, 127. See Firm. 
 false additions to, do not vitiate deed, 127 
 bastard, 127 
 reputed wife, 128 
 divorced woman, 128 
 interests belonging to, in land conveyed, but not in character in which 
 
 they are made parties, 204 (Rule 60) 
 taking benefit under, bound by deed that they do not execute, 2 (n.) 
 
 PARTITION, 
 
 grant of rent on, without the word "heirs," 227 
 
 PARTNERS. See Firm. 
 
 conveyance by, passing separate property, 131 
 l)roperty of, tenancy in common, 281 
 
 PARTY-WALL. -See Wall. 
 
 PASTURE. See Profit a Prendre. 
 soil may .pass by grant of, 607 
 pastura and pascuiim distinguished. 607 
 
 defined, SI 5 
 common of, is 2)rofit a prendre, 608 
 
 to be taken only l>y mouths of cattle, 608 
 appendant, how claimed, 608 
 defined. 009 
 origin of. 609 
 appurtenant, how created, 612 
 
 liow revived after destruction by unity of pos- 
 session, 203 (Rule 59) 
 in gro.ss, how created, 612 
 stinted, 614 
 
 by reason of vicinage, 615 
 of shack. 615 
 claimed by inhabitants, &c., 612 
 
 copyholders, 614 
 whether lost by abandonment, 614 
 
 PATENT AMBIGUITY. Sec Ambiguity. 
 PATHWAY, 615 
 PAWN AGE, 006 
 
 PAY, 
 
 gift made by direction to, 382 
 on event jjersonal, 391 
 
 '• V.\Y TO OR REliMIT TO RECEIVE," 273 
 PAYABLE. See Portions 
 
 603
 
 676 INDEX. 
 
 [The paging refers to the [•] pages. ] 
 
 PAYMENT, 
 
 recital of, in voluntary settlement, effect of, 144 
 
 PEERAGE, 
 
 ■ limited to " heirs male," 231 
 
 PENALTY. 
 
 annexed to covenant, effect of, 427. vt seq. 
 
 or liquidated damages, on breach of covenant, 428 ^ 
 
 PENCIL ALTERATIONS, 18 
 
 PERCH, 596, 597, 598, 6no, 602, 615 
 
 " PERMIT," 490 
 
 PERQUISITES, 615 
 
 "PERSONAL PROPERTY," 
 
 Avhether leaseholds pass as. 176, 178 
 
 PERSONAL REPRESENTATIVES. See Executors. 
 trust for, 316 (Rule 126) 
 shown by corftext to mean next of kin, 316 
 
 PERSONALTY, 
 
 tru.st of, followed by gift over on death without leaving issue, 250 
 
 trusts of, for " heirs," 257 
 
 "heirs " applied to, 257, et seg. See HEIRS. 
 
 joint tenancy in 280 
 
 future or non-existent, effect of assignment of, 408 
 
 settled by reference to settlement ot realty, 547 
 
 PERTICA, 596. >See Perch. 
 
 PESSON, 6(16, n. 
 
 PICKAGE, 621 
 
 PICLE, PICKLE, PIGHTEL, PIGTLE, PITLE, 616 
 
 PISCHARY. See Fishery. 
 
 PLACE. See PARCELS, Parish. 
 
 named generally, presumed to be vill, 168, n. 
 
 PLAN. See Map. 
 
 PLOUGHLAND or PLOWLAND, 587, 596, n. {e), 597, 601, 616 
 
 POLE, 600. 602 
 
 POLICIES, 
 
 marine, evidence of custom to add terms to, 13 
 material alterations in. 21 
 proviso avoiding. 91 
 technical words in, 61 
 
 POOL, 610 
 
 PORCA, 567, 616 
 
 PORTIONS, Chap. XXVI. , p. 367. See Eldest Son. 
 (1.) Charged on land: — 
 
 when they vest, a question of construction, 368 
 
 vesting of, where no time named for payment, 369 (Rule 143) 
 
 efl"ect of gift of interest or maintenance, 369 
 
 rule as to vesting applied in favour of other portionists, 372 
 
 rule excluded by context or circumstances, 372 
 
 604
 
 INDEX. 
 
 677 
 
 [The paging refers to the f *! pages. ] 
 POKTIOXS — continued. 
 
 \1.) Charged on land— continut'd. ^ , , , . ,\ 
 
 payable on event personal to portionist, vesting of, 3,-2 Uvule 144) 
 interest or maintenance given, l>72 
 rule applies to deeds and wills alike. :>7:{, 
 n. ((t) 
 appointed by will under power in deed and e contra, :i7r, 
 when treated as personalty. 375 ^_ ■_ 
 
 payment postponed tor convenience of estate, 375 (^Kule 145) 
 
 or of pei-sonalty trust tuTid. 377 
 raisable on a contingency, 378 
 out of rents and pro tits, 379 iKule 146) 
 may be raised by sale or mortgage, 379 
 but context may restrict to annual rents. &c., 380 
 out of annual rents, &c., vesting of, 381 (Rule 147) 
 
 wben estate is discharged, 382 
 (2.) X')f charged on land: — 
 
 wiiether any distinction between wills and settlements, 383 
 application of civil law doctrines as to vesting. 373, 383, 392 
 for children, payable at twenty -one, &c., vesting. 383 (Rule 148) 
 payment postponed for convenience, 384 
 effect of gift over, 3S7. 388 
 
 "before becoming entitled," 387, 395 
 gift of interest or maintenance, 389, 390, 393 
 context may exclude vesting at birth, 390 
 trust created only by direction to pay, &c., 391 (Role 149) 
 fund of personalty settled like land, 392 
 effect of gift of whole interim interest, 393 
 discretionary power of maintenance, 394 
 contingent gift of interest, 394 
 (3.) Direst ing of port ion.% Gijts ova; Death before parents:— 
 period of distribution, 394 
 
 gift over before portion " payable," &c., 395, 398 
 "payable," "assignable," ''transferable," &c., 395, 398 
 times of vesting and of payment distinguished, 395, 398 
 construction applied to wills, 396. 402 
 effect of expressions referring to survivorship, 396 
 primarv gift to survivors only. 396, 403 
 
 to "all children contingent on one surviving, 403 
 indefeasible vesting at twenty-one, &c.. notwithstanding death lie- 
 fore parents, 396 (Rule 150) 
 rule applies to portions, whether charged on land or not, 
 
 397 
 gift over before portion " payable," 398, 403 
 where no express reference to twenty-one or marriage, 402 
 rule !»])plies to wills, 402 
 
 difference between wills and settlements, 402 
 gifts over, if no child or all die before parents, 403 
 in default of "such " children, 403 
 in forms not fitting prior trusts, 404 
 effect of atlvanccment clause, 404 
 " leave " construed " have," 404 
 where only survivors take, 405 
 
 substitution of i.ssuc of children dying before parents, 405 
 whether rule applied to daughters, 405 
 (4.) Mixccllanrous: — 
 
 term to raise, " if A. should die without issue," 247 
 for daugliters undt;r marriage articles, effect as to strict seKlim.iit. 
 536 
 
 (>05
 
 678 INDEX. 
 
 [The paging refers to the [•] pages. ] 
 POKTIOJ^S— continued. 
 
 (4. ) MiscellaneoiiH — coniinued. 
 
 power to rai->e, whether inserted in .settlement under articles, 556 
 child taking bulk of estate excluded Irom, 339, et seq. 
 exceeding whole value of estate, 341 
 provided by separate deed, 343, 352 
 eldest daughter taking estate excluded, 343 
 eldest son not taking estate excluded, 344 
 
 unless excluded by name, 347 ■ 
 
 younger child taking estate excluded, 342 
 unless he takes estate aliunde, 345, 346 
 or is provided for by name, 347 
 or indefeasible vesting directed by settlement, 349 
 agreed to be paid by father for daughter is settled by her, 294, 549 
 rate of interest on, 380 
 
 POSTHUMOUS CHILD, 327, 328. >See Childeen. 
 
 POST-NUPTIAL SETTLEMENT, 
 
 of wife's land is not voluntary, 148 
 
 POUND, 616 
 
 POWER, 
 
 executed by deed not referring to it, 45 
 
 by feoffment, lease and release, covenant to stand seised, 46 
 
 by recitals, 46, 144 
 to lease in possession, lease from day of date, 124 
 of sale in mortgage, transfer, 131 
 
 of appointment, or to revoke, or to lease, in covenant to stand .seised, 150 
 appointment under; rule in Shelleifs Case, 243 
 of appointment does not -prevent vesting in default of appointment, 361, 
 
 et seq. 
 to raise portions, whether inserted in settlement under articles, 556 
 to appoint portions, how construed, 368 
 general, in marriage articles, how to be restricted, 552 
 whether deed executing, is part of instrument creating, 243 
 
 PRECARIiE, 616 
 
 PREMISES. See Habendum, Limitations. 
 of deed, what are, 210, 217 
 
 explained by habendum, 217 
 estate not to be limited in, 210 
 
 express, not limited in, 215 (Rule 65) 
 
 limited in, and in habendum, 217 (Rule 66) et seq. 
 grantee not named in 213 (Rule 63), et seq. 
 when he can take, 215 
 named only in, 220 
 
 named in alone, .but Avith others in habendum, 214 (Rule 64) 
 parcels not named in, do not pass, 212 (Rule 62) 
 unless impliedly named in, 213 
 
 PREMIUM PUDICITI^, 
 deed made as, 5 
 
 PRESUMPTION, 
 
 that alterations are made before execution, 17 
 of fresh execution after alteration, 27 
 
 PRIMARY MEANING, » 
 defined, 48 
 rules as to, 47 
 
 606
 
 INDEX. 679 
 
 [The paging refers to the [•] pages.] 
 
 PRIME WAY. GIG 
 
 PRINTED DEED, 
 
 altered in writing, 18 
 
 PRIORY, 
 
 manor may pass by name of, 595 
 
 PROCUREMENT, 488 
 
 STURE. 
 (Wile • 
 
 created by what words, 184 (I'lle 49) 
 
 covenant, 42, 181, 408 
 how claimed by copyholders. (il4 
 
 "householders"' or '■ inhabitants'" cannot claim, 612 
 except under grant from Crown. GK? 
 
 or as claiming through freeholders, 61U 
 corjxiration, 613 
 whether free tenants of manor can claim, 614 
 
 PROVISO, 
 
 amounting to covenant 408, 411 
 
 qualifying covenant. 411 
 
 excluding liability under personal covenant, 427 (Rule 158) 
 
 PUNCTUATION. 
 
 maj' be supplied, 240 
 
 PUE A UTRE VIE. Sec Estate pur autre vie. 
 
 PURCHASE MONEY. See Coxsideratiox. 
 
 evidence to show non-payment or return of, 151 
 payment of, under agreement, efi'ect of, in equity, 132 
 
 PURCHASERS, HEIRS AS. See Heirs. 
 
 PURLIEU. 616 
 
 PURPRESTURE, 605, 617 
 
 PYKE, 567 
 
 QUADR.\NS TERR^E, 598 
 
 QUADRANTATA TERR.E, 617 
 
 QUALIFIED COVENANTS. .SVr Covenants, Qualified. 
 
 QUANTITY. 
 
 words of, in description (if parcels. S<c Parcels. 
 
 QUARANTATA TERRJi:, 598 
 
 QUARENTENA, .566, 596, .597, 617 
 
 QUARRY, 604 
 
 QUART, 600 
 
 QUIET EN.IOYMEXT. 
 
 covenant for. ,SVe Covenant for Quiet En.iovment. 
 
 RACK RENT, 
 defined, 618 
 
 RAILWAY, 
 
 conveyance to company for sjiecial j>urposes, 190 
 right of way over crossings over, 198 
 
 607
 
 680 INDEX. 
 
 [The paging refers to the [•] pages.] 
 EECEIPT, 150, et scq. 
 
 qualified by recital, 137, 151 
 
 how far conclusive as to payment, 150 (Rule 42) 
 
 endorsed, absence of, constructive notice, 152 
 
 excludes implied covenant to pay, 419 
 
 lor purchase money following recital of agreement for sale, effect of, in 
 
 equity, 1152 
 of building society, 152 
 
 RECITAL, CHAP. X., pp. 129, e< se?. 
 not necessary part of deed, 12!) 
 where operative part controlled by, 132 (Rule 37) 
 
 where not, 12!) (Rule 3fi) 
 explaining doubtful intention or meaning, 129, 130 
 limitations, 137 
 parcels, i:;4, 135, 137 
 receipt, 137. 151 
 release, 137, 138 
 
 covenants to be independent, 137 
 Covenant for quiet enjoyment, 137 
 supplying name omitted from operative part, 136 
 not controlling absolute covenant, 130 
 operating as covenant, 143, 415, 418 
 conveyance, 144 
 e.Kercise of power, 46, 144 
 estoppel. 140 
 language of, to which parties to be ascribed, 141 
 of Ibrmer deed, how Jar proof of its contents, 144 
 in recited deed, no estoppel by, 142 
 constructive notice bj', 144 
 
 relieving purchaS'er from ascertaining payment of debts and legacies, 144 
 of objections to title in deed of confirmation, 138 
 misrecitals 139 (Rule 38), d seq. 
 
 RECOVERY, 
 
 fee createfl by, without the word " heirs," 228 
 and deed to lead uses are one transaction, 7 
 
 RECTORY, 617 
 
 REDDITUS, 
 
 albi, assisus or assisne, mobiles, nigri,'resoluti, 618 
 
 REDEMPTION, 
 
 proviso for, omitted, 4 
 
 RE-ENTRY, 
 
 evidence as to form of power of, in former leases, 55 
 clause of, in lease, 86 
 
 REFERENCE, 
 
 estate tail created by words of, 236 
 fee simple created by words of, 227 
 to limitations of realty, covenants to settle chattels by, 547 
 
 REJECTION, 
 
 of repugnant words or clauses, 78, 81, 82, 92, 165, 214, 219, 480. See 
 Repugnant. 
 RELEASE, 
 
 altered after execution, 22 
 construed as covenant to stand seised, 41 
 grant, 42 
 execution of a power, 46 
 
 608
 
 INDEX. 681 
 
 [The paging refers to the [•] i»nK«f. ) 
 ElELEASE — continued. 
 
 examples of deeds construed as, 43, 46 
 
 taken most strongly against releasor, 95, 96 
 
 operative part, controlled by recitals, Ki7, 138 
 
 of actions by legatee who is also executor, 208 
 
 of all estate and interest controlled by recitals, 209 
 
 where fee created by, without the word " heirs," 227 
 
 REMAIXDEK. &e Heirs, Limitations. 
 
 limited to person not named in premises. 215 
 limitations in, to heirs of grantor, 22H (Rule 69) 
 stranger, 229 (Rule 7U) 
 
 "RENDERING," 
 
 rent, amounts to covenant, 420 
 
 RENEWAL, 
 
 covenant for, constined by usage, 74 
 
 not construed by acts of parties, 9 
 RENT, 
 
 reserved to "assigns," 85 
 
 passes by grant of reversion, but not c contra, 187 
 grant of, creating lile estate, when, 216 
 till a certain sum be paid, 246 
 service, 617 
 
 rent reserved on lease for years is, 617 
 seek, 617 
 charge, 617 
 
 created by way of use, 266, 267 
 
 in favour of person not having legal estate, 266 
 of assise, 618 
 chief, 618 
 ■white. 618 
 black, 618 
 rack, 618 
 
 may be variable, 618 
 cannot )>e granted out of incorporeal hereditaments except reversion or 
 
 remainder, 618 
 creation of, de novo, in strict settlement. (;i"< 
 
 disentailing assurance of, (il!) 
 granted out of gavelkind or borough-Eiiglish land, <J19 
 
 RENTS AND PROFITS, 
 
 • barges on, 379, ct scq. See Portions. 
 conveyance of, of land, passes the land. 619 
 
 incident to reversion does not pass the reversion, 619 
 of wood, in lea.se, G19 
 
 " REPRESENTATIVE.S." 
 trust for, 316 (Rule 126) 
 meaning heirs, 317 
 
 .statutory next of kin, 317 
 
 REPUGNANT. See General Description. 
 words, rejection of, 78 (Rule 17) 
 clauses, the first prevails, 91 (Rule 20) 
 premi.ses, to habendum, 217 (Rule 6(1), elseq. 
 words, in limitations, rejected, 230, 231 
 
 REPUTED MANOR, 
 
 what passes by grant of, 595 
 may pa.ss by " manor," 594 
 
 39 IXTERi'UETATION OF DEEDS. 609
 
 682 INDEX. 
 
 [The paging refers to the [*] pages.] 
 RESEEVATION, 
 
 of right to get coals, 88 
 
 of rent to " assigns," 85 
 
 implied, of way of necessity, 192, 200, 201 
 
 extent of right, 192, 201 
 none in favour of grantor, 199 (Rule 57) 
 
 except of way of necessity, 200 
 of reciprocal easements, 200 
 
 whether any, of apparent continuous easements, 199 
 to vendor who retains land for building, 203 
 
 RESTRAINT ON ANTICIPATION, 
 
 by what words created, 301 (Rule 118) 
 annexed to power only, 302 
 
 corpus, 303 
 property subject to, not bound by wife's covenant to settle, 507 
 
 whether wife can elect to give up, 529, n. (6) 
 life estate sans waste, inconsistent with, 546, 547 
 whether inserted in settlement of personalty under articles, 548 
 
 RESTRICTIVE WORDS, 
 
 in description of parcels, where rejected. Sec Parcels. 
 
 RESULTING TRUST, 294 (Rule 115) 
 
 where there is a trust of wife's property " during coverture,'' 294 
 
 RESULTING USE. See Uses, Implication. 
 
 RETENTION, 
 
 of deed by grantor, 120, 122 
 
 REVERSION, - 
 
 deeds of feoffment, or release, or bargain and sale, construed as grants 
 
 of, 42 
 misrecital of lease in grant of, 139 
 is ejusdem generis, with estate in possession, 176 
 grant of, passes rent, 187 
 remains in grantor on creation of a particular estate at common law, 286 
 
 REVIVOR, 
 
 of easements, 195 
 
 of rights of common appurtenant, 203 (Rule 59) 
 
 RIDGE, 567, 597, 598, 619 
 
 RIDING, 
 
 meaning of, 568 
 
 ' ' RIGHT. ' ' See Entky, Way. 
 meaning of, 204 
 
 RIVER. See Fishery. 
 
 conveyance of land abutting on, 180, 182 
 bed of, ownership of, 182 
 
 ROAD. See Way. 
 
 soil of, when included in parcels, 135, 179 (Rule 48) 
 over adjoining tenement, where it passes, 192. 194, 197 
 formed to house, where it passes, 193 
 presumption as to ownership of private, 183 
 
 on building estate, 183 
 of strip of land by side of, 182 
 
 610
 
 INDEX. 683 
 
 [The paging refers to the [•] pages. ] 
 KOD. (JOO. 602 
 
 ROOD. GOl. 602 
 
 SALES, 
 
 agreemt'Uts tor, technical words in, 61 
 
 void for uncertainty of subject-maltor, 106 
 contemporaneous, reciprocal easements, 202 (Kuk- "»'^) 
 
 SAME TRANSACTION. 
 
 evidence whether several deeds refer to, 6 
 how deeds relating to. are construed, 7 
 
 SCHEDULE, 
 
 annexed after execution. 22, 21, :]0 
 parcels when restricted by. 1:5"), 162, 163 
 acreage stated in, controlled by plan, 166 
 of parcels, rejected, 170 
 referred to, but not annexed, 170 
 grant by reference to, 135, 162, 163, 181 
 
 SCOTCH. 
 
 form, will made by domiciled Englishman in. 56 
 
 SEAL. 
 
 added to document after execution. 23 
 cancellation of. 30 
 destroyed by accident, 34 
 
 SEALING, 
 
 what amounts to, 1 
 presumption as to. 1, n. 
 
 SEA-SHORE, 580 
 
 when passed by grant, 71, 72 
 
 SEISIN, 
 
 liverj' of, no longer necessary. 222 
 how pleaded of things mannrable, .571 
 
 not manurable, 572 
 the Crown, 572 
 husband and wife, 572 
 SELDA, 619 
 SELIO, 567, 597, 620 
 
 SEPARATE ESTATE, 
 
 alienable without expreas power. .303 
 whether bound bj' covenant to settle, 504, 506 
 
 SEPARATE USE, 296, et seq. 
 
 bv what words created, 296 (Rule 117) 
 
 under Married Women's Property Acts, 1870, 1882, 296, n. (c) 
 "property .settled to," ib.. 50H 
 words creating, under marriage settlements, 297 
 other de<!ds, 29H 
 
 wills, 29H • 
 
 words not creating, under marriage settlements, 298 
 
 wills. 299 
 whether it arises immediately, 299 
 
 revives on re-niarriage, .300 
 legal estate is left in trustees, 272, 273 
 
 SEPARATION DEED, 
 
 cuvenanta in, whether independent, 464 
 
 611
 
 684 INDEX. 
 
 [The paging refers to the [*] pages.] 
 "SERJEANTY OF C." 
 
 land passed by grant of, 591 
 
 SERVICE, 
 
 technical words in contract for, 60 
 
 "SETTLE." See Covenant to Settle. 
 
 SETTLEMENT. See Limitations, Husband and Wife, Maeeiagb 
 Akticles, Makkied WoaiAN. ' 
 
 altered after execution, 23 
 execution subject to note in writing varying. 6 
 whether construed differently from a will, 273, 274, 278, 383, 402 
 marriage, trust for daughters supplied on context, 80, 137 
 
 clauses transposed to effect intention, 82 
 voluntary, not communicated to cestni que frust, 121 
 effect of recitals in, 131, 132, 135, 136, 137 
 post-nuptial, evidence to prove ante-nuptial agreement, 147 
 
 how far voluntary, 148. 149 
 limitations in, to A. '"his heirs and assigns for life," 226 
 
 to "heirs " or " heirs of body," extended to all children, 
 
 240 (Rule 79) 
 to children, Avithout words of limitation, 251 (Rule 86), 277 
 to separate use. 272, 273. See Separate Use. 
 estates of trustees, 273, <'^ seq. 
 equitable limitations in, 276 (Rule 104), ei seq. 
 
 estates for life only, 277 
 of personalty, trust for children, joint tenancy, 280 
 covenant by father to settle, resulting trust, 294 
 trust for wife during coverture, extended to life, 294 
 
 SEVERAL FISHERY, 576, 578. See Fisheky. 
 
 SEVERANCE, 
 
 of tenement, rights as to easements. See EASEMENTS. 
 
 "SHARE," 
 
 word, meaning of in settlement, 294 
 
 SHARES, 
 
 transfers in blank, 28 
 
 SHEEPHEAVES, 620 
 
 SHEEP WALK, 579 
 
 SHELLEY'S CASE, Rule in, 238, 242 (Rule 81) 
 where life estate of ancestor determinable, 242 
 implied, 238, 243 
 contingent remainders interposed, 243 
 applies to copyholds, 243 
 
 limitations, must be in the same instrument, 243 
 in exercise of powers, 243 
 one legal, other equitable, 244 
 , words added to limitation to ancestor, 244 
 
 words of distribution or limitation added to limitation to heirs, 244, 245' 
 no difference between deeds and wills as to, 245 
 executory limitation to heirs. 245 
 remainder to heirs contingent, 245 
 
 "heirs of body," construed as words of purchase, 256 (Rule 92) 
 not applied to marriage articles, 535 
 
 SHOT, 566 
 
 612
 
 INDEX. 685 
 
 [The paging refers to the [•] pages. ] 
 SIMULTANEOUS DEEDS, 7 
 SITUATION. See Locality. 
 SOKE, 6-20 
 
 "SOLEMNISED," 
 
 meaning of, 331 (Rule 133) 
 
 SOLIDATA TERR^, 598, 620 
 
 SOLI N US, 620 
 
 SOLLAR, 620 
 
 SON. Sec Eldest Son. 
 
 bastard described as, 127 
 
 SPECIAL OCCUPANTS, 
 
 " heirs" explained b\' habendnm to mean, 218 
 class of, explained by habendum, 219 
 
 SPECIFIC DESCRIPTION or STATEMENT, 
 controls general. 113, 129 
 not controlled by recitals, 130 
 in recital, not enlarged by general, in operative part, 132 
 
 SPECIFIC PERFOR.MANCE, 
 of covenants, 430 
 of marriage articles, 454, n. 
 
 SPELLING, 
 
 wrong, disregarded, 78 (Rule 17), 83 
 
 SPORTING, 
 
 contract, evidence of meaning of terms in, 60 
 
 STALLAGE, 620 
 
 may be claimed by grantor prescription, 621 
 pass by the word " toll," 621 
 
 STAMP, 
 
 new, required for altered deed, 27; but see 28 
 on mortgage, in respect of expenses, &c., 87 
 Acts, recital amounting to conveyance within, 144 
 looked at to explain ambiguity, 112 
 
 STANG, 599, 601 
 
 STANGELL, 600, 601 
 
 STATUTES, 
 
 constrnction of. See Act of Paellament. 
 
 referred to — 
 
 9 Hen. 3, c. 16 577 
 
 4 Edw. 1, Stat. 1 . . . 593 
 
 6 Edw. 1, c. 13 574 
 
 17 Edw. 2. Stat. 1, c. 15 559 
 
 2 Edw. 3, c. 12 ... . 589 
 
 14 Edw. 3, c. 9 589 
 
 1 Edw. 4. c. 2 591 
 
 21 Hen. 8, c. 13 562 
 
 25 Hen. 8, c. 20 560 
 
 20 Hen. 8, c. 3 560 
 
 27 Hen. 8, c. 10 2CA, ct scq. Sec Vskh. 
 
 2H Hen. 8, c. 3 564 
 
 32 Hen. 8, c. 28 - . 93 
 
 GI3
 
 686 INDEX. 
 
 [The paging refers to the [* J pages. ] 
 STATUTES— continued. 
 referred to — 
 
 31 Eliz. c. 7 568 
 
 8 & 9 Win. 3, c. 11, s. 8 428, 431 
 
 10 & 11 Wm. 3, c. 16 328 
 
 4 & 5 Anne, c. 16 221 
 
 6 Anne, c. 35 423 
 
 4 Geo. 2, c. 28 86 
 
 8 Geo. 2, c. 6, s. 35 . ' 423 
 
 24 Geo. 2, c. 23 590 
 
 5 Geo. 4, c. 74 558 
 
 3 & 4 Wm. 4, c. 74, s. 47 495 
 
 3 & 4 Wm. 4, c. 106, .ss. 3, 4 228, 237. n.. 288, n. 
 
 7 Will. 4 & 1 Vict. c. 53 568 
 
 7 & 8 Vict. c. 45, s. 2 73 
 
 8 & 9 Vict. c. 18 423 
 
 8 & 9 Vict. c. 106 . 222, 423, 587. u. 
 
 18 & 19 Vict. c. 122 184 
 
 19 & 20 Vict. c. 47, s. 46 423 
 
 20 & 21 Vict. c. 57 524 
 
 23 & 24 Vict. c. 134, .s. 5 73 
 
 30 & 31 Vict. c. 23, s. 10 22 
 
 33 & 34 Vict. c. 14, s. 2 556 
 
 41 & 42 Vict. c. 49 558 
 
 44 & 45 Vict. c. 41 (C. A. 1881), s. 6 186, 194, 203 
 
 s. 7, 422, n., 493, 494 
 
 ss. 10, 11, 12 434. n. 
 
 s. 34 228 
 
 s. 36 555, u. 
 
 ss. 42, 43 553, n. 
 
 s. 51 224, 231 
 
 s. 55 1.52 
 
 s. 60 434, n. 
 
 s. 63 186, 204 
 
 45 & 46 Vict. c. 61, ss. 63, 64 23 
 
 c. 75 (Married Women's Property Act, 1883) 298, 
 
 n. (c), 301, n. (/) 525 
 
 46 & 47 Vict. c. 52, s. 56 (5) 495, n. 
 
 47 & 48 Vict. c. 54 423, n. 
 
 48 Vict. c. 4 423, n. 
 
 STICHE, 567, 621 
 
 STINT or STINTED PASTURE, 614, 621 
 
 STRAY, 621 
 
 STREETS, 
 
 ownership of, 183, 184. (See Road. 
 
 STRIPS OF LAND, 
 
 uninclosed, adjoining road, when included in parcels, 179 (Rule 48) 
 and communicating with commons, 182 
 "SUB.JECTTO," 
 
 whether covenant created by words, 420 
 
 SUBSTITUTIONARY GIFTS, 
 
 distinguished from independent, 258 
 •A. or his heirs," 230 (Rule 71) 
 of personalty to "heirs of A.," 257 (Rule 95) 
 
 to issue of children dying in lifetime of tenant for life affecting construc- 
 tion of gifts to children, 405 
 
 614
 
 IKDLX. 687 
 
 [The paging refers to the [•] paged. ] 
 "SUCCESSORS," 
 
 in limitations, to private person, 225 
 king, 226 
 corporations, 226 
 "SUCH," 
 
 wrongly used, construed by context, 82 
 in trusts of portions, 403 
 
 "SUFFER," 490 
 
 SUM OF MONEY, 
 
 grant of rent till payment of, 246 
 land till payment of, 246 
 
 SUPPLYING WORDS, 78, 81 
 
 SUPPORT. 
 
 easement of, 200 
 
 SURNAME, 125 
 
 may be changed, 126, 128 
 
 SURRENDER. 
 
 operating a-s covenant to stand seised, 42 
 of copyholds to take effect in fuluro, 92 
 
 SURVIVOR, 
 
 limitation to A. & H. and the survivor of them and the heirs of the sur- 
 vivor. 283 
 to tenant.^ in common and the survivor, 284 (Rule 108) 
 
 "SURVIVORS," 
 
 read "others," 285 (Rule 109), 289 (Rule 114), 294 
 
 SURVIVORSHIP, 
 
 in gifts to cla.s.ses, 396 
 
 between portionists and their parents, 391, et aeq. 
 
 SWEEPAGE, 586 
 
 TACK, 574 
 
 TAIL. See Estate Tail, Heir.s of the Body, Makeiage Aeticlks, 
 Tenant in Tail. 
 
 TECHNICAL WORDS, 
 how construed, 38 
 primary meaning, 48 
 
 may be disregarded in executory trusts, 534 
 evidence as to meaning, 50, .")2, 54, 60, et seq. 
 legal terms, 62 
 
 TENANCY IN COMMON, 
 
 by limitation to A. and B., their heirs and assign.s, as tenants in com- 
 mon to use of them, their heirs and assigns, 26!) 
 to A., B.,an(l C. and heirs, halxMidum to said A., B..iin(i C., 
 their heirs and as.signs, U) use ol A., B. and C, heirs and 
 a.s.sign,s, as tenants in common, 269 
 to several corporations sole, or to ooriK)iation sole, or 
 Crown, together witii ordinary jierson, '2h() 
 in equity where purchase by several persons nneciualiy, 281 
 
 admissibility of evidence t^) show, 
 2H1 
 of property employed in tra<le, 281 
 
 615 •
 
 688 INDEX. 
 
 [The paging refers to the [»] pages. ] 
 TENANCY IN COMMON— coiitinued. 
 between mortgagees, 282 
 . by what words created, 283 (Rule 107) 
 ibilowed by express gift to survivor, 284 
 under implied gift in default of appointment, 365 
 tenants in common, lease or sale by, benefit of covenants, whether joint 
 
 or several, 440, 441 
 under executory instruments, 282 
 
 marriage articles, 542, 548 , 
 
 TENANCY BY ENTIRETIES, 280, 281 
 
 TENANT FOR LIFE. See Estate foe Life. 
 
 lease for life by, whether for life of lessor or lessee, 94, 95 
 
 TENANT IN TAIL. See Estate Tail, Heirs op the Body, Maeriage 
 Articles. 
 lease by, 95 
 
 covenant by, to stand seised, 271 
 further assurances by, 494 
 
 TENEMENT, 621 
 
 TENURE, 
 
 parcels described by, 164, 172 
 
 TERM. See Leases. 
 
 merged, whether revived by words "grant, bargain, sell," &c., 45 
 
 words "grant, bargain, sell," &c., operating as assignment, 45 
 
 absolute, cut down by context, 77 
 
 how computed where ambiguous words, 95, 96, 97 
 
 to commence from date, or "day of date, how computed, 124 ^Rule 34) 
 
 includes whole anniversary of day from which granted, 124 
 
 future, interesse termini, 205 
 
 held good, 217 
 assigned, habendum, for life, with remainder over, 220 
 after death of grantor, 220 
 
 to "heirs" and assigns, 220 
 limitation to A. "and his heirs for a term," 245 
 limited to A., remainder to "heirs of his body," 260 
 
 TERMOR, 
 
 may take fuel, &c., 87 
 
 "TERR^ DOMINICALES," 570 
 
 "THAT IS TO SAY," 622 
 
 THEATRICAL AGREEMENT, 
 technical words in, 60 , 
 
 "THEN," 311 
 
 TIME, • 
 
 from which deed operates, 119 
 
 when delivered as escrow, 121 
 for ascertaining next of kin, 309, 310 
 
 of particular name, 311 
 "eldest son," 338, 352 
 " younger children, 338, 352 
 
 TITHES, 
 
 whether, pass by "all estate " clause, 209 
 
 616
 
 INDEX. 689 
 
 rThe paging refers to the r'] pages.] 
 TITLE, 
 
 meaning of, 205 
 
 of honour, limited to heirs male, 231 
 
 without reference to place, 621 
 " TO BE " 
 
 creating covenant, 419, 464 
 
 qualifying covenant, 420 
 
 creating condition precedent, 465 , 
 
 TOFT, 622 
 
 TOLL, 
 
 to the fair or market, 622 
 
 grants of, ()23 
 stallage may pass by word, 621 
 traverse, 623 
 thorough, 623 
 
 TOWNSHIP. See MAxVOR. 
 
 distinguished from parish, 168, n. 
 meaning of, 624 
 what passes by grant of, 624 
 lord of, 625, n. 
 
 TKANSFER IN BLANK, 28 
 
 TRANSFER OF MORTGAGE, 
 construction of, 131 
 
 TRANSPOSITION 
 
 of words of clauses, 78 (Rule 17), 82 
 
 TREES, 626 
 
 grant of, implies right to cut and carry aw^y. 88 
 exception of, from grant of soil. 631 
 
 TRUST, 
 
 deed, ancient, construed by nsagc under it, 68 
 
 charitable, construed by usage, 68, 72 
 estate, whether passed by conveyance, 206 
 joint tenancy of personalty under, 260 
 
 for several as tenants in common, how created, 283 (Rale 107) 
 resulting, 294 (Rule 115) 
 
 for wife during coverture, extended to life, 294 
 breach of, when a specialty debt arises on, 421 
 
 TRUSTEES, 
 
 covenant by, personal liability excluded, 90 
 
 absence of notice to, does not suspend operation of deed, 121 
 
 imi)lied grant of way of necessity by, 192 
 
 conveyances by, operation in respect of beneficial interest, 2(l(i. rt seq. 
 
 new, declarations vesting property in, 228 
 
 when they take the legal estate, 271 (Rule 102) 
 
 in gift for separat<» use, 272 
 " pay to or permit to receive," 273 
 legal estate of, not enlarged or diminished bv nature of trust.s, 273 
 (Rule 103) 
 cut down by context, 275 
 estate pur autre vie in, 27:5, 274 
 tf) preserve contingent remainders, 275 
 settlement.s and wills, dilTcrence between, as to estates of trustees, 274, 
 
 278 
 leaseholds for lives conveyed to, in trust for A., 278 
 
 017
 
 690 INDEX. 
 
 [The paging refers to the [*] pages.] 
 TRUSTEES TO PRESERVE, 
 estates of, 275 
 inserted in settlement pursuant to articles, 5-^6 
 
 TURBARY, 627 
 
 cannot be appurtenant to land, 627 
 as to approvements against, 627 
 
 UNCERTAINTY, 
 
 deed or clause void for, 104 (Rule 23), 114 (Rule 28) 
 
 UNDERWOOD, 
 
 excepted from grant of soil, 631 
 
 UNITY OF OWNERSHIP, 189, et seq. See EASEMENTS. 
 
 " UNMARRIED," 
 
 death, reference to, as to next of kin, 306 
 
 and intestate, 334 (Rule 135) 
 meaning, .333 (Rule 134) 
 
 UNNECESSARY CLAUSE, 85 (Rule 18) 
 
 USAGE. See Custom. 
 meaning of, 68, 69 
 ambiguity in use of word, 67 
 implying additional t«rms of contract, 9 
 where one party is ignorant of it, 16 
 evidence of, to interpret ambiguous terms, 74 
 ancient documents, 68 
 charitable trusts, 68, 72 
 charters, 73 
 parcels, 71, et seq. 
 words, 50, 54, 57, et seq. 
 where some parties have adverse interests, 74 
 modern, where admissible, 70 
 
 USE AND BENEFIT, 
 for their own, 314 
 
 USE, SEPARATE. See Sepaeate Use. 
 
 USES. Chap. XVIII., p. 264 et seq. See Tenancy in Common. 
 how created, 264 (Rule 98) 
 deeds to, how construed, 264, n. 
 consideration necessary to raise, 149 (Rule 41; 
 
 general, not raised on, 145 
 not raised where intent is to pass estate in possession, 265 
 declared on A.'s seisin in favour of A., 267 (Rule 100) 
 
 B., 270 (Rule 101) 
 estate tail, 271 
 determine with estate of grantee to uses, 270 (Rule 101) 
 rent charge created by wav of use, 266, 267 
 resulting, 229, 238, 286, 287. See Implication. 
 
 to no person other than grantor, 288 'Rule 114) 
 upon a use, 267 (Rule 99) 
 to use of A. yielding rent to B., 267 
 covenant to stand seised to, by tenant in tail, 271 
 of line, declared by bargain and sale, or feoflfiaient, 44 
 
 USURPATION, 605 
 
 UTLAND, 627 
 
 VARECTUM, 628 
 
 618
 
 INDEX. 691 
 
 [The paging refers to the [*] pages.] 
 VARY DEED, 
 
 evidence to. See Evidence, Extrinsic; Pakol Evidbnck. 
 VELINDRE, 627 
 
 VERBAL EVIDENCE. See EVIDENCE, EXTBINSIC. 
 VERT, 627 
 
 "VEST," 
 
 meaning of word, 355 
 
 VESTING DECLARATION, 
 
 under C. A., 1881, may create fee without the word " heir," 228 
 
 VESTING OF GIFTS TO CLASSES, Chap. XXV., pp. 355, et seq. See PoK- 
 
 TIONS. 
 
 where a member of class included or excluded by nome, 356 
 gilt to individual and class, or to two classes, 356, 357 
 
 they take inter se per capita. 357 
 immediate gift to class, who take under, 357 ( Rule 139) 
 limitation in remainder to class, who take under, 358 (Rule 140) 
 whether members of class take jointly or in common, 306, 320, 359 
 where gift only by direction to pay, distribute, &c., among classes, 361, 
 
 391 
 under express limitations in default of appointment, 361 (Rule 141) 
 
 where power is to appoint by will only, 363 
 under implied gift in default of appointment, 363 (Rule 142) 
 
 where power is to appoint by will only, 365 
 
 persons taking under, are tenants in common, 365 
 
 VESTING OF PORTIONS, Chap. XXVI., pp. 367, et aeq. See POBTIONS. 
 charged on land, 368 
 not charged on land, 382 
 
 VESTURA TERRJ5, 585 
 
 VILL. See TowxsniP. 
 
 VIRGA, 596 
 
 VIRG.VTE, 567. 596, 598, 628 
 
 VIRIDIS or VIRIDE, 627 
 
 VIVA lilUM, 628 
 
 VIVEU or VIVIER, 628 
 
 VOLINTARY DEED OR SETTLEMENT, 
 
 retained by grantor and destroyed, 23, 120 
 
 concealed, 121 
 
 not parted with. 122 
 
 recital in, of payment, 144 
 
 of wife's land, 1 18 
 
 of leaseholds, 149 
 
 executory, distinguished from marriage articles, 535 
 does not point to strict settlement, 540 
 as to following exact words in, 539 (Rule 194) 
 
 VOLUNTEERS, 
 
 cannot enforce covenant to settle, 529 n. 
 
 WALL, 
 
 party, defined, 606 
 
 ownership of, 184 
 right to u.se, passing a.s "appurtenance," 213 
 
 619
 
 692 INDEX. 
 
 [The paging refers to the [»] pages.} 
 WAPENTAKE, 589 
 
 WARD, 589 
 
 WARECTUM or WARECCUM, 628 
 
 WARRANTY, 
 
 covenant created by, 411 
 
 WAIiREN, 629 
 
 land may pass by name of, 629 
 what are beasts and birds of, 629 
 
 WASTE LAND, 
 
 adjoining highway, ownership of, 179, et seq. 
 
 WATER. See Fishery. 
 right to flow of, 191 
 public, what is, 577 
 grant of, does not i^ass land, 629 
 
 WAY, RIGHT OF, 
 
 kinds of, distinguLshed, 630 
 
 express grant of, construction, 184. 198 
 
 of necessity, implied grant of, 191 (Rule 53) 
 
 implied reservation of, 192, 200, 201 
 cesser of, 192 
 
 where grantor a tru.stee, 192 
 extent ol, on implied reservation, 192, 201 
 of convenience, 192 
 
 on partition, 193 * 
 
 over new road made during unity of ownership, 192 (Rule 54) 
 
 - by owner for sole use of house, 193 
 over ancient road existing before unity of ownership, 194 (Rule 55) 
 suggested new Rule as to roads, 196 
 importance of road being defined and formed, 197 
 as to convenience of use ceasing on severance, 197 
 express grant of unrestricted user, 198 (Rule 5G) 
 over railway, 198 
 under inclosure award. 198 
 created by covenant, 630 
 WEAR, 583 
 WHEN, 
 
 gift when uncertain event happens is contingent, 382 
 
 WIFE. See Maeried Woman. 
 
 reputed, 128 
 WIRE, 575, 630 
 WILL, 
 
 words supplied in, 81 
 
 construction of parcels in, 163, et seq., 171, etseq. 
 words creating separate estate, 298 
 
 not creating separate estate, 299 
 executory trusts in, .535, 539 (Rule 194), 547 
 construed differently from deed, '•with the appurtenances," 189 
 
 limitations, 274 
 
 as to beneficial interest being ex- 
 tended by estate of trustee, 273 
 portions, 393, 402 
 as deed, portions, 373, n., 383, 396, 402 
 portion appointed by, under power in deed, 375 
 made by domiciled Englishman in Scotch form, 56 
 
 620
 
 INDEX. 693 
 
 [The paging refers to the [*] pages. ] 
 WINDOWS, 
 
 right to access of light to, on conveyance of house, 190 
 
 WIST A, 630 
 
 WOOD, 631 
 
 WORDS, 
 
 defined by Act of Parliament, 65 
 Glossary of. Chap. XXX., p. 557, ct scq. 
 explained in Co. Litt. 4, et seq., list of, 557 n. 
 
 WORDS IX DEED. 
 
 to whom attributed, 98, 141 
 
 to be taken against the person using them, 93 (Rule 21), 425 
 in primary meainng. 47 
 
 'wreck, 
 
 grant of, 71 
 
 YARD LAND. 567, 589, 598, 628, 631 
 
 '•YIELDING," 
 
 rent, amounts to covenant to pay, 419, 420 
 
 YOKE, 631 
 
 YORKSHIRE REGISTRIES ACTS, 423 
 
 YOUNGER CHILDREN, 
 
 when meaning younger by birth, 337. 352 (Rule l.'{8) 
 
 children not succeeding to estate, ;>38 (Rule 1.37) 
 
 succeeding to estate, not under settlement, 345 
 time when character ascertained, o'.iS, 340, 341, .'J52 
 include children by subsequent marriage, 33H i(Jbs.) 
 provisions for, contained in separate deed, 343 
 wife's realty settled on, 343 
 eldest daughter taking estate excluded, 343 
 eldest son or daughter not taking estate included, 344, 345 
 succeeding to estate, 342 
 
 but not under same settlement, 345, 346 
 portions provided for. by name, 347 
 
 vested bj' pottleincnt before time of distribution, 349 
 becoming eldest, wheie no estate settled, 352 
 
 THE END. 
 
 621
 
 Phila. : The Blackstone Pub. Co. 
 
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 UNIVERSITY OF CALIFORMA 
 
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