<-. .C^Ci^ c c % «jC<^ cc:. 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 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 Strouraithwaite .... 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 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 , 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 aa/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)).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, 0 Wend. !)1 ; S. ('. ;i:> Wend. 3 IS; I)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 mSea- 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. (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 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 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 the8ubjof 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, \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 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. ^ 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 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 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 Hardwicland 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 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 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. 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. 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 Bh 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 . 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 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 Scay 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" 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. 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 MVickens, 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.\\, 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<. 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^ 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 Cafb (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. (, 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 tS'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 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. 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, 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. Surposes, 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, 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. (622) ^ LAW LIBRARY UNIVERSITY OF CALIFORMA LOS ANGELES >' >^ > :5i^ > > :> > > >' b/'^:'V ^ ^^£> •'> ^* .■> '■^■? 4 > >^:^ > >. '>!* 5»^»^ \^3^ > >r:>>^> :>^ >:> 5>'?' -3» I :> >