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 mm ST-TilOMRDS
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 \
 
 r 
 
 \l5t 
 
 ralNTED BY WILLIAM BLACKWOOD .VND SOXS, EDINBUBQH.
 
 CONTENTS. 
 
 INTHODUCTORY LETTER. 
 
 LETTER IL 
 
 OF BALKS AND PDRCUA8BS. l>a^e 
 
 Differcnco lictwoen Law (iml Equity — Piirtiiil Kxocution of a Con- 
 tract — Purcltusor's liviuedy whore tho Title is bad 
 
 LETTER III. 
 
 8ALBB AND l'URCHASE8— Con/in«*(/. 
 
 Effect of the Contract — revokes a Will — Option t<i I'lirchaso — how 
 PurchuMO-nioney is to Ihj |»aid — LL>4u»ch«il<ler buyiiifr tbo Fee — 
 Ellect of previous General Devise on EsUito purchased 9 
 
 LETTER IV. 
 
 SALES AND PUKCHA8ES— Con<l/l«e</. 
 
 Moral and Lotfal Duties of a Seller — Misrepresentations — Conceal- 
 ments — Mi.sde.scription8 — Sale with all Faults — Encumbrances 
 — Value Rent — Examination of Title- Conditions nf Siilo — 
 Deposit — Auctioneer {,nving Credit — Buying-in an Estate — Puff- 
 ing— Apent n<jt pursuing his Authority — Auctioneers' and 
 Agents' Charges 1-1 
 
 LETTER V. 
 
 8ALE8 AND FVRCHA8Z&— Continued. 
 
 Purchaser relieved against what Encumbrances and Defects — Pur- 
 ■ chaser not bound to disclose Advantijpcs — bound by Rights of 
 Way, Faults in Mines— False Representations by a Stranger — 
 Inquiry after Encumbrances— Notice of Lease— taking Pos- 
 session .v»-,i«.-i^ 2i 
 
 ■78-3i95
 
 < ONTKNTS 
 
 LETTER VI. 
 
 AND rvHcUASEa— Continued. P«ge 
 
 I'urcbiMor'ii Comluct in Sivlo-rooni — Countermand of a Bidding at 
 „,, V,,. .,.„. \..ri, .1 Contnuliclionnf Farficularsof Salo — Agent 
 I Autliority —Principal denying tlio Aiitho- 
 
 ri' in his <iwn Nanio— Purcli;iso in the Name 
 
 . • 'a Tnistc'o of thu Tiiist-])nipc-rty-- 
 
 1' of a liankniiit — Purcli:tse or Kx- 
 
 c! . „ . 1 witli his own Tnistces— Conveyance 
 
 in tho i^iiuno oJ u istningur, or a Wife, Child, or Gnmdchild 
 — Joint Purchase — Dnusting to bid in favour of another Pcreou 30 
 
 LETTEll Vir. 
 
 HALia AND rCRCUASES — Continued. 
 
 Writi' lit I'HsiMitial — I-cttcrs — Offers and Acceptance 
 
 ••si iUceipt— Delivery of Rent-rolls, &c. — Price 
 
 o: ... .. ..u Heir Selling Iii.s Exjiectaucy — Price to be fixed 
 
 by Arbtimtom — Invextmont of Deposit in Stock — Loss by sell- 
 ing' 'T bMyincr Stock— Interest — Lo.ss by Fire or othonvise be- 
 f o— Dri>i>ping of Lives, &c. — Purchase by 
 ^' wn Palate — Fire Insumncc — Timber, Fix- 
 ''■ ~ iJiiildings, Drains, Fences, Supports, Lights, 
 Working uf Mines — Water 38 
 
 LETTER VIIL 
 
 BALES AND PURCHASES— Conimuerf. 
 
 tfivinK Notice to Tnistcc— Purclia.se wth Notice of another's Right 
 Implio<l Notice— General Register— proposed Rogi.stor of 
 Title— Hill U) faeiliUito Transfers— Bill to give Effect to Charges 
 — Length of Abstracts 50 
 
 LETTER IX. 
 
 BALES AND rvncuASts— Concluded. 
 
 SIni. tiy— Piirchftso of Presentation during Vacancy— of the Advow- 
 ■ rig Vaciuicy— InU-ntion to {.resent a particular Person 
 r and Cliild— Purcliase by a Clergyman— Bonds of Re- 
 -.i^iMuou—Purchaso of Land-Tax- Merger of the Tax 58 
 
 LETTER X. 
 
 or REAL PKOPERTV AND ESFBANCOISEMENT OF COPYHOLDS. 
 
 DifforPnt Int«r«<t. in K«t.^to«— Fee, f.,r Life or for Years— Descent 
 
 ^, ' ■' Vi ..le and Half-Blood— EstaterTdl— 
 
 '• • <'«'"i Powers— Chattels Real— Copy- 
 
 63
 
 CONTENTS. 
 
 LETTER XI. 
 
 OF THE RIGHTS OF HUSBAND AND WIFE IN THEIR SEVERAL 
 PROPERTIES. 
 
 Page 
 Wife's Dower — Her Interest in the Personal Estate — Husband's 
 Rights in her Real Estate — Chattels Real— Personal Chattels — 
 Choses in Action — in Trustees — their Joint Power over her Real 
 Estate — Her Interest in Personalty expectant upon her Hus- 
 band's Death ■ 67 
 
 LETTER XIL 
 
 JUDICIAL SEPARATION AND DIVORCE. 
 
 New Court — Judicial Sejjaration and Divorce — Alimony — Joint 
 Power— Divorce at the Suit of the Husband — of the Wife — 
 Custody of Children — Power over Wife's Property — Power to 
 marry again— by whom to be solemnised — Desertion by Hus- 
 band of Wife — Separate Earnings — Action for Crim. Con. still 
 maintained — Agreement for Separation 73 
 
 LETTER XIII. 
 
 FATHER AND MOTHER'S POWER OVER CHILDREN. 
 
 Mother entitled to Access or Custody, where — Power of Court of 
 Chancery over a profligate Father— Father's Rights as Guar- 
 dian — Mother's Right as Guardian by Nurture after Husband's 
 Death — Religious Faith of Children — Husband liable to Main- 
 tain Wife's Children — Entry by Father as Guardian on Child's 
 Estate 80 
 
 LETTER XIV. 
 
 ON MORTGAGES. 
 
 Cautions on Loans — Forged Deeds — Cautions on Borrowing — Usury 
 — Interest made Principal — Tender of Money and Notice to pay 
 it off — Power of Mortgagor — of Mortgagee — Devises — Leases — 
 Elections — Money belongs to Executor — Mortgagee in Posses- 
 sion — Accounts — Waste — Advowson — Appointment of Receiver 
 — Mortgagor barred of his Redemption by Twenty Years' Pos- 
 session — Redemption opened — Mortgagee bound by Time, of 
 Right to Estate or Money — Redemption by BiU in Equity — 
 Foreclosure — Sale under Statute — Fraudulent Mortgagors — 
 Transfer — Sales under Powers in Mortgages 85 
 
 LETTER XV. 
 
 OF LEASES. 
 
 Leases by Parol — by Deed — Written Agi-eement essential — Letters 
 — Minute of Covenants — Insurance against Fire — Condition
 
 CONTENTS. 
 
 iiKiiiiiHl AssiK'ninoiit Lease for Seven or Kourtccu Yeare, by 
 wIk.iu .loloniiiimblo- Tenant for Life I'owor ot Leiujing— Evic- 
 tion of Tcnuut— Fine or BonuH— Hest Ilent— (Tranln)g a Lease 
 nn.lor a Tower f.ir a Man's own Benefit— Lca«e of L:iml.s, some 
 of which are loa«c<l under a Tower— EtiuiUible llelief t<j Lessee 
 — lloliof under Statute — Acceptance of Rent— Lease in Antici- 
 I uliun 
 
 I'agfc 
 
 98 
 
 LETTER XVI. 
 
 W l.KASICS— t'on/t/tUtf/. 
 
 Power in Court of Chancery to authorise Leases— Conditions— Court 
 nuiy vest I'owers of Leasing in Trustees — Streets, lioads. Gar- 
 dens, &c., may be set out l^** 
 
 LETTER XVIL 
 
 (IF SETTLEMENTS. 
 
 Written Agreement essential — Lottere— Fraud — Encumbered Estate 
 —Jointure and Tortious— Common Modes of Settlement — Pro- 
 vision for a Future Man-iage — Pin-money — Powers to lease, 
 sell, \c. - Sale of Estates under a Power, and Investment of 
 Money in Stock — I'ower in Court of Chancery to authorise 
 Sides— Right to cut Timber — Tenant for Life pulling down 
 Mansion-house— Ai)i)ointmeut of Property to Children — Execu- 
 tion of Powers — Hotchpot — Covenant to settle Est^vtos — Cove- 
 nant to leave a Child a Fortune equal to the other Children — 
 Settlement after a Will — Re-execution of a Will — Settlement 
 by Infant 109 
 
 LETTER XVIIL 
 
 lu-sirticiions — Inquiries — Settlements — Leaseholds — Heirlooms 
 — Advancements to Ciiildren — or on Mairiage- Paj'ment of 
 Debts — Conditional Gifts — Mode of executing Will — Witnesses 
 — Rjul Cluvracter— Marksmen — Acknowledgment by Testator of 
 his Signature — Witnesses where to sign — Codicil — Will at In- 
 teniiLs — Obliteration, &c., of Will — Re-execution — Will under 
 a Tower — Married Wf imen — Infanti 131 
 
 LETTER XIX. 
 
 WILLS — Continued. 
 
 Revocation — Burning, &c. — Marriage— Presumption — Four Modes 
 of Revocation — Revival of Revoked Will — Conveyance after 
 Will— at wliat time Will speaks 146
 
 CONTENTS. Vll 
 
 LETTER . XX. 
 
 WILT.3 — Concluded. Va^s 
 
 What may be disposed of— Expectancies — Aftcr-pm-cliased Estates 
 — Specific Gifts — Sale and Re-purchase of Estate devised — 
 Lapsed Gifts — Operation of Gift of Residue— Family Dissen- 
 sions — Pecuniary Legacy to Residuary Legatee — Estate passes 
 out and out — Country House — Annuity — Gifts to Children and 
 Grand-children — Lapse — Depository for Wills L''l 
 
 LETTER XXI. 
 
 OF TRXJSTBES. 
 
 Creation of Trusts— Liabilities of Trustee — Conduct of Beneficial 
 Owner— no Profit to Trustee — Right of Voting— Payment of 
 Trustees — Public Companies — Trustees — Advice to look into 
 Present Trusts — Liability of Loss vsrithout a Set-off for Profit — 
 Receipt and Payment of Ti-ust-money — Receipt and Applica- 
 tion by a Co-trustee — Counsel's Opinion not to be depended 
 upon — Legal Validity of Securities— Executors — Funeral Ex- 
 penses—Debts on Personal Securities — Payment of Residue 
 — Payment under Power of Attorney — Payment into Bank ... L'*9 
 
 LETTER XXIL 
 
 TRUSTEES — Continued. 
 
 Punishment of Fraudulent Trustee— Transfer by Trustee of Funds 
 into Court Costs — Opinion of Court on Special Case — Sum- 
 maiy Application to protect against Debts — proposed Relief 
 to Trustees 170 
 
 LETTER XXIII. 
 
 OP TITLE ACQUIRED BY POSSESSION. 
 
 Remedy against Usurper— Tvrenty Years — Ejectment — when Right 
 begins — Tenancies — Sa\'ings for Disabilities, Ten Years — Forty 
 Years a Title, unless there are Remainder-men — Danger to 
 Titles — Possession by Trustees — Trustees barred — Concealed 
 Fraud — Administrator — Tenants in Common 177 
 
 LETTER XXIV. 
 
 OF TIME BARRING CHARGES. 
 
 Charges on Land barred by Time' — -Tenant for Life- Acknowledg- 
 ments — Arrears of Dower or Interest — Rent — Payment of In- 
 terest by Tenant for Life 184
 
 viii roNTKNTS. 
 
 LKTTEli XXV. 
 
 CHURCH I'ATUONAUE-UOHTS— EASEMENTS, &C. ACQUIRED BY TIME. 
 
 Page 
 i'liiirvh PntroniH,i> — Advowaon — Liphts, 20 Years — as Easements — 
 Ri^'liU of Common, kc, 30 Ycjirs 00 Years- Nature of Enjoy- 
 ment — Diwibilitics, Tenancy for Life — linitv of Possession — 
 Hiirhts of Way, Water, &c.— 20 Years— 40 'i'ears— Conditions 
 —What Time reckons— User — Non-user — Conclusion 187
 
 INTRODUCTION. 
 
 Note to page 61. 
 
 The provision in 16 & 17 Vict., o. 117, referred to in p. 61, for 
 merging land-tax, was repealed by the 19 & 20 Vict., c. 80, sect. 3, 
 for the future ; so that the above provision operates only on pur- 
 chases of land-tax between the 20th August 1853 and the 29th July 
 1856. 
 
 plunged into a lawsuit, which a slight previous know- 
 ledge might happily have prevented. It is, unquestion- 
 ably, a matter of profound regret, that so large a 
 proportion of contracts respecting estates should lead 
 to litigation. It is equally to be regretted that, how- 
 ever desirous the man of property may be to understand 
 the effect of his daily contracts, there is no source to 
 which he can apply for the desired information. You 
 ask me to remove the cause of your complaint, and in
 
 viii «(>NTKN1> 
 
 LKTTEH XXV. 
 
 CilURCU I'ATBONAOE-LIOHTO— BASEMENTS, &C. ACyUIBED BY TIME. 
 
 Page 
 C'hurvh Patronncv — Advowton — Li^rl'tJ*. '20 Years — na Easements— 
 
 I! ' • • ' • .Sec, 3(1 Yours fiO Years- Nature of Jliijoy- 
 
 I Tonaiiiy for Life — Unitv of Possession — 
 I, . it«r, &c.— '2<> Years — 40 V ears — Conditions 
 - Wkit liiuv; rwckoiis— User — Non-user — Conclusion 187
 
 INTRODUCTION. 
 
 LETTER I. 
 
 You complain to me that, although utterly ignorant of 
 law, you are constantly compelled to exercise your own 
 judgment on legal points : that you cannot always have 
 your solicitor at your elbow ; and yet a contract for the 
 sale, purchase, or lease of an estate, a loan, or, perhaps, 
 even an agreement to make a settlement on a child's 
 marriage, must be entered into at once ; and it is not 
 until you have gone too far to retreat that you learn 
 what errors you have committed : that you are even at 
 a loss in giving instructions for your will, and wholly 
 incapable of making the most simjile one for yourself : 
 that you cannot readily comprehend your solicitor when 
 you seek his advice : that, in a word, you have been 
 plunged into a lawsuit, which a slight previous know- 
 ledge might happHy have prevented. It is, unquestion- 
 ably, a matter of profound regret, that so large a 
 proportion of contracts respecting estates should lead 
 to litigation. It is equally to be regretted that, how- 
 ever desirous the man of property may be to understand 
 the effect of his daily contracts, there is no source to 
 which he can apply for the desired information. You 
 ask me to remove the cause of your complaint, and in 
 
 A
 
 2 IXTRODUmON. 
 
 particular to point out the precautions to which you 
 shouM attend in soUino;, buying, mortgaging, leasing, 
 settling, and devising i-states. You express, besides, a 
 desire to know something in a popular way of the 
 nature of the different interests in property, and of the 
 mutual rights of yourself and your wife, and your 
 power over your children, which would lead me to 
 introduce the new law of divorce to your notice. You 
 further ask me to give you some general hints as to 
 your conduct in the character of a trustee or executor, 
 Avhich may keep you from hann. In short, you want, 
 in the form of familiar letters, what is now so much in 
 vogue, a work upon an interesting subject calculated 
 " for the million," whom I should be but too happy to 
 assist : such a work, whilst it imparts knowledge, may, 
 perchance, beguile a few hours in a railway carriage. I 
 have in my youth and in my manhood written much 
 for the learned in the law ; why should I not, at the 
 close of my career, \vrite somewhat for the unlearned ? 
 This I shidl proceed to do concisely, and without 
 encumbering my pages with many technical phrases. I 
 must prendse, tliat I shall say little which is not 
 warranted by decided cases ; but I shall not burden 
 you with references to them, as they lie scattered in 
 many a bulky volume to which you have not access.
 
 DISTINCTION BETWEEN LAW AND EQUITY. 
 
 LETTEE 11. 
 
 To enable you to understand some terms which I must 
 necessarily use in speaking of the remedy for breach of 
 contract, I must explain the difference between law and 
 equity. It is peculiar to the constitution of this 
 country, that the law on the same case is frequently 
 administered differently by different courts ; and that 
 not from a contrary exposition of the same rules. It 
 must soimd oddly to a foreigner, that on one side of 
 Westminster Hall a man shall recover an estate without 
 argument, on account of the clearness of his title ; and 
 that on the other side of the HaU his adversary shall, 
 with equal facility, recover back the estate. In all other 
 countries, if we except America, which adopted in a 
 great measure our laws, the law is tempered with eqiuty ; 
 and the same grounds rule the same case in all the 
 courts of justice. The division of our law into what is 
 termed legal and equitable, arose partly from necessity 
 and partly from the desire of the ecclesiastics of former 
 times to usurp a control over the common-law courts. 
 Our legal judges heretofore adhered so strictly to techni- 
 cal rules, although frequently subversive of substantial 
 justice, that the Chancellors interfered, and moderated 
 the rigour of the law according, as it is termed, to 
 equity and good conscience. The judges in equity soon 
 found it necessary, like the common-law judges, to 
 adhere to the decisions of their predecessors ; whence it 
 has inevitably happened, that there are settled and 
 inviolable rules of equity, which require to be moderated
 
 t FUSION OF LAW AND EQUITY. 
 
 by the 1-ulcs of gtKxl conscience, as much as ever the 
 most rigorous jui«l inflixiMe rule of law did before the 
 Clmiuilloi-s int(ri)().se<l on eMjuiUiUle grounds. However, 
 IS the l;i\v of property is now administered in the 
 .litt'crtnt forums, allowing for the imperfection of all 
 human liiw.s, it exhibits a splendid and comprehensive 
 .mle of jurisprudence. Legislative attempts have been 
 ma«le to give to all our great courts the like jurisdiction 
 over contracts; but they have, in a gi-eat measure, 
 neces.saiijy failed, and they never can succeed imtil the 
 reipiisiti- machineiy is provided in the common-law 
 courts to eiial>le them to perform the duties which now 
 devolve upon the Courts of Chanceiy. Whether such a 
 measure is desirable, I must leave it to the authorities 
 to decide. America has been referred to as a great 
 example of the benefits of the fusion of law and equity. 
 ]5ut there were great complaints in that country against 
 the mode in which equity was administered; and I do 
 not undi-rstand that law and equity have been united 
 there, although now the same judge administers both 
 law and equity, sitting alternately as a common-law or 
 an equity judge, as occasion may require, just as our 
 Court of Exchequer formerly exercised both jurisdic- 
 tions. We should always bear in mind that it is not 
 a question whether, as an abstract proposition, we shoidd 
 sever law and equity, but it is whether, now that they 
 have been severed for centuries, it is wise to unite them 
 generally. Many powers may with gi-eat advantage be 
 extended to both jurisdictions, which now or formerly 
 were confined to one. 
 
 The essential diflerence l^etween law and equity, as it 
 aft'ects the subject upon which I am writing, consists in 
 this, that equity will give you the thing itself for which 
 you have contracted ; whereas the law can only give you
 
 SALES AND PUECHASES : EEMEDIES. 5 
 
 a pecuniary compensation for the dishonesty of the other 
 party in not fulfilling his contract. Thus, if you were 
 to sell your estate to your neighboiu- Tompson, and 
 were afterwards, dislikino; the baro-ain, to refuse to con- 
 vey it to him, he would have it in his election to proceed 
 against you either at law or in equity. If he resolved to 
 proceed at law, he would bring an action against you for 
 the recovery of damages for breach of contract, and a 
 jury would decide the amount of the damages which you 
 ought to pay ; but still you would retain the estate in 
 the same manner as if you had never contracted to sell 
 it. But if he wished to have the estate itself, he would 
 file a bill in equity against you, for what is termed a 
 specific performance, or a performance in specie, and the 
 court would not, like a com^t of law, in effect, let you off 
 the contract on payment of damages, but would compel 
 you to convey the estate itself to the pm^chaser upon his 
 paying the purchase-money to you. But of coiu-se, as 
 the court compels you to perform the agreement, there 
 are no damages to pay. This equity is founded upon 
 the principle, that the court considers that as actually 
 performed which is agreed to be done ; so that the 
 instant after you have entered into a contract to sell an 
 estate, the court considers the estate as belonging to the 
 purchaser, and the piu'chase-money as belonging to you, 
 and so vice versa. The terms specific performance, and 
 action for breach of contract, will now, I hope, be 
 familiar to you. I shall frequently be compelled to use 
 them in the course of my correspondence. 
 
 The remedy in equity, I must remark, is open to a 
 seller as well as a buyer, although a seller merely wants 
 the purchase-money ; so that if a vendor woidd prefer 
 getting rid of the property, and receiving the whole of 
 the purchase-money, to keeping the estate, and taking
 
 f, SALES AND PURCHASES. 
 
 his chance of the amount of damages at law, he may 
 i|)|>ly to njuity for a specific luTforniance. 
 
 Hut e»[uity will not inttifcre in every case. A man 
 ;ictin<; without j,'oo(l faith cannot require the extraor- 
 . Unary ai.l of the court, l)ut will be left to bis remedy 
 at law, where his ])ad conduct will have its full opera- 
 tion with a jury. And in many cases equity will not 
 interfere, although the applicant or plaintiff, as be is 
 calle«l, has acted bond fide; for instance, where the 
 estate has by surprise or mistake been sold at an mider- 
 value. Thus, where the Irnown agent of the seller bid 
 for the estiite at an auction on behalf of the purchaser, 
 and other persons present, thinking that he was bidding 
 as a i)utfer on the i)art of the seller, were deterred from 
 bidding, the court, on the ground of surprise, refused to 
 interfere against the seller, who resisted the sale. 
 
 Equity also looks to the sul)stantial intention of the 
 parties, whereas the courts of law adhere more strictly 
 to tlie letter of the contract. Thus, if an estate is 
 described in a particular of sale to be in good repair, 
 and it turns out to be in bad repair, the seller cannot 
 enforce the contract at law ; but equity, if the purchaser 
 is not in want of immediate possession, so that there is 
 time to do the repairs before possession is essential to 
 him, will comjiel him to take the house upon being 
 allowed a sufficient sum to repair it : if a man sell a 
 leasehold estate, as having 70 years to ran, and the 
 term is only 68, the purchaser will in equity be decreed 
 to take the estate with an abatement ; at law, the con- 
 tract cannot be enforced by the vendor : again, if the 
 time is stii>ulated for the peiformance of the contract, 
 that stipulation is of the essence of the contract at law ; 
 whereas in e<iuity, if the time was not material, or the 
 party complaining was aware of the cause of the delay
 
 BELIEF AT LAW AND IN EQUITY. 7 
 
 at the time of the agreement, and the other party is not 
 wilfully lying by, equity will compel a specific perform- 
 ance in the same manner as if the party had been ready 
 to perform his agreement by the time stipulated : if the 
 seller cannot make a title to the whole estate sold, the 
 purchaser is not at law compellable to take the part to 
 which a title can be made ; but in equity, if the part to 
 which a title cannot be made is not necessary to the 
 enjoyment of the rest, equity will compel him to take 
 it, and will allow him a proper abatement out of the 
 purchase-money. In one case a man purchased a house 
 on the north side of the Thames, which was supposed to 
 be in Essex, but which turned out to be in Kent, a small 
 part of which county happens to be on the other side of 
 the river. The purchaser was told he would be made a 
 churchwarden of Greenwich, when his object was to be 
 a freeholder in Essex ; yet he was compelled to take the 
 house. These instances, and others to which I shall in 
 subsequent letters draw your attention, will sufficiently 
 show the difference, in these respects, between law and 
 equity. The latitude which a court of equity allows 
 itself in enforcing agreements against the letter, and, 
 perhaps, in some cases, contrary to the spirit of the con- 
 tract, may be narrowed by the express stipulation of the 
 parties. This should always be attended to. 
 
 The ground upon which equity proceeds in the cases 
 which I have mentioned is, that the agreement can be 
 performed in substance. A purchaser cannot be com- 
 pelled, even in equity, to take an undivided part of 
 an estate — as where the seller and a third person are 
 tenants in common, so that each is entitled to only an 
 undivided moiety — if he contracted for the entirety ; nor 
 a leasehold, however long the term in it may be, or a 
 copyhold instead of a freehold. And if you were to buy
 
 WANT OF TITLE. 
 
 at m» auction a mansion-liousc in one lot, and farms, 
 itc, in otlicrs, ciiuity would relieve you from the 
 whdk' lontract if no title could be made to the mansion- 
 house. 
 
 From the different rules of laAV and equity it fre- 
 (jucntly hapiJcns that both courts are resorted to with 
 relation to the same contract. I will give you an 
 instance of this : .Sui)pose that you had bought an 
 ■ state of Tompson, and the agreement was to be per- 
 f«»rmi-d by a (hiy named, and that he made out his title, 
 and wiis reiidy to convey to you at the time, but your 
 money waa not ready, Tompson might bring an action 
 against you for damages for breach of the contract; but 
 if the day appointed was not material, you might file a 
 bdl against him for what is termed an injunction, and 
 a specific performance ; and equity would accordingly 
 enjoin him not to proceed further Avith the action, and 
 would compel him to convey the estate to you upon 
 payment of the purchase-money, but you would not be 
 allowed to be guilty of fuither delay in payinent of the 
 purchase-money. 
 
 If you sell an estate, your title to which proves bad, 
 and you cannot cure the defect, equity of course cannot 
 relieve the purchaser, unless he choose to take the title 
 with all its faults ; but the purchaser may recover 
 ilamages against you at law. However, where a man 
 is without fraud incapable of making a good title, a 
 purcliaser can even at law only recover what are called 
 nominal damages — a .shilling, for instance. I dare say 
 that you think it high time this Letter should end. You 
 must, however, j»reserve your patience, or I shall never 
 make a lawyer of you.
 
 OPERATION OF CONTRACT FOR SALE. 
 
 LETTER III. 
 
 In my last Letter I mentioned the principle upon which 
 a specific i^erformance is decreed — viz. that the Court 
 considers that which is agreed to be done as actually 
 performed, so that from the time of an agreement for 
 sale the estate in equity belongs to the purchaser, and 
 the pmxhase-money to the vendor. I hasten to unfold 
 to you the very important consequences of this doctrine, 
 to which a slight inattention on your part might totally 
 overthrow yom- plans in the disposal of your property 
 amongst your family. 
 
 I shall first consider you as a sellei: As the estate is 
 no longer yours, if you have devised it, it will not pass 
 to the devisee except as a mere trustee for the purchaser ; 
 and even if you have by your will directed it to be sold, 
 and actually given the money to arise by the sale to a 
 legatee, yet if you sell the estate yourself, he will not be 
 entitled either to the piu-chase-money or the estate. But 
 the purchase-money, although not paid, will go to your 
 personal representative in the same way as the rest of 
 your personal property. Therefore, where you wish the 
 money to go to the person who would have taken the 
 estate, you should make a bequest of it to him at the 
 time you enter into the agreement. And as you may 
 afterwards abandon the contract, by consent of the other 
 party, or it may be such a contract as a court of equity 
 will not enforce : you should also provide for a sale of 
 the estate, at all events, in favour of the object of your 
 bounty.
 
 10 OPTION TO PURCHASE. 
 
 It is luaterlal liero to observe, that if you give a man 
 only an option to pmvliase your estate, yet if he accept 
 it, even afttr your death, the nature of the property is 
 ehangetl. I think that I can make tliis quite plain to 
 you. You liave now both hmd and money, I will 
 suppose that you have liy your will given your estate to 
 yoiu- eldest son, and the money amongst your younger 
 children. You then grant a lease of the land to Tomp- 
 s<»n, and give him an option to purchase the estate for 
 £2i},()()() at any time within ten years. You would 
 think, no doubt, that you bad secured the e.state to your 
 eldest son. But, on the contrary, if you die before the 
 end of the 1 years, and Tompson, after your death, but 
 within the 10 years, elect to purchase the estate, the 
 money would go to your younger children, and your 
 eldest son would be stripped of all his fortune ! To 
 obviate this, if you should enter into such a contract 
 after nuiking your will, you must, by a codicil, give the 
 numey to arise by sale to the person to whom you have 
 given the estate, and then he will be secure of the pro- 
 l)erty : and if you make your will after the contract, 
 expres.sly declare that your devisee shall have the pur- 
 chase-money, if the les.see make his option to take the 
 estate. 
 
 I shall now consider you as a buyer. The estate is 
 yours fnjm the moment the contract is executed ; and 
 the purchase-money mu.st be paid out of your personal 
 property. The consequence of equity thus deeming the 
 estate to belong to you, is, that you may dispose of it 
 by your will, or otherwise, even before the conveyance, 
 just the .same as if you had paid the purchase-money, 
 and the estate were actually conveyed. You must, 
 therefore, upon a purchase, always reflect that your 
 disposable cash is decreased by the amount of the
 
 OPEKATION OF CONTKACT TO PURCHASE. 1 1 
 
 purchase-money ; and that unless you otherwise dis- 
 pose of it the estate will go to your heir. A moment's 
 reflection will show what serious consequence may 
 follow from a neglect on your part ; for suppose you 
 purchase an estate with the ofi'l 0,000 in the funds, 
 which you have given by your Avill to your younger 
 children, and which constitutes the bulk of your per- 
 sonal property, and should neglect to devise the estate, 
 the money must go to pay for it, at the expense of your 
 younger children, who would be left nearly destitute, 
 whilst your eldest son, to whom the estate would de- 
 scend, would have a large fortune. Distressing cases of 
 this kind are continually happening. 
 
 If your personal property undisposed of is not suffi- 
 cient to pay for the estate, it would be better, perhaps, 
 to direct it to be sold again, and the first purchase- 
 money to be paid out of the money produced by the 
 re-sale. You must remember that in devising or suffer- 
 ing an estate to descend which you have purchased and 
 not paid for, your devisee or heir will be entitled to 
 have the purchase-money paid out of your personal 
 property, although you may have given it all to another 
 person. A most vexatious case once happened : A 
 younger brother agi'eed to purchase an estate from his 
 elder brother ; the conveyance was accordingly executed, 
 but the money was not paid. The younger brother then 
 made his wiU, giving his property to his brother, sub- 
 ject to legacies, and made him executor. The will, 
 however, was not executed so as to pass the estate. 
 The younger brother died, and the elder brother took 
 the estate as his heir, and also paid himself the pur- 
 chase-money out of the personal property ; by which he 
 disappointed the legatees, who lost their legacies, whilst 
 he got both the estate and the purchase-money for it.
 
 12 PRKCAUTION TO BE TAKEN 
 
 On the other han.l, yon innst rruaid against the chance 
 of the estate not Ixinji ultimately conveyed according to 
 the agreement. For if ecjiiity should for any reason 
 refuse to execute tlie contract, or a good title cannot be 
 matle, the perscm to whom you have given, or suffered 
 the estate to descend, will not be entitled to have it 
 jMiid for out of your personal ])roperty, although he 
 may be willing to accejit such a title as can be made to 
 it ; because equity Avill not interfere unless there is a 
 binding contract at the death of the party. You should, 
 therefore, provide for the purchase of another estate, of 
 equal value, for your devisee or heir, in case the one pur- 
 chased should not be conveyed to him. I must, how- 
 ever, remark, that if by your will you direct an estate to 
 be bought for which yen have not actually contracted, 
 and the estate cannot be bought according to your 
 direction, yet equity will decree the money to be laid 
 out in the purchase of anotlier estate for the benefit of 
 the devisee. 
 
 Before I close this Letter, I shall give you a caution as 
 to your Hamp.shire estate, wherein you have only a long 
 term of years, which you have bequeathed to your second 
 son John. You tell me that you are about to purchase 
 the fee, or, as you express it, to buy the estate out and 
 out. Now the effect of a conveyance of the fee to you 
 will clearly be to put an end to the term, and to give you 
 the entire interest in the estate discharged from the 
 lease, and so the bequest to John would be defeated ; 
 and the effect may be held to be the same, immediately 
 aftei- the contract is executed, and even before the con- 
 veyance, to guard against which you should give the fee 
 to John without delay by a codicil to your will. And 
 in giving this estate to John, after you have agreed to 
 liuy the fee, but before the conveyance, you should go a
 
 BY THE PUECHASEE. 13 
 
 step further, and expressly declare that he shall have the 
 lease, although he cannot obtain the fee, for it may 
 happen, as it has in a similar case, that the seller is 
 not the owner of the estate, or cannot make a good title 
 to it. 
 
 You should bear in mind that, by the new law of wills, 
 any estate which you may buy after the making of your 
 will, will pass by a general devise in it of all your estates. 
 This I shall explain to you in a later Letter.
 
 14 PRECAUTION BY THE SELLER. 
 
 LETTER IV. 
 
 In this Letter I propose to draw your attention to the 
 j)rt't'autions to be observed on tlic sale and purchase of 
 estates as between yourself and the other party; and 
 first as to your conduct and duty as a Seller. 
 
 I will n(»t iw^ne with you, whether in selling an estate 
 you are bound in conscience to disclose all its defects to 
 the purchaser. Moralists, as you know, agree that a seller 
 is bound to do so, although the principle has been con- 
 troverted. I shall content myself Math stating how the 
 laiv (»ii this subject stands. 
 
 If the person to whom you sell was aware of all the 
 defects in the estate, of course he cannot impute bad 
 faith to you in not repeating to him what he already 
 knew ; neither will you be liable if you were yourself 
 ignorant of the state of the property. And even if the 
 purcha.ser was at the time of the contract ignorant of the 
 defects, and you were acquainted with them, and did not 
 di.sclose your knowledge to him, yet he will be without a 
 remedy if they were such as might have been discovered 
 by a vigilant man. Tlie disclosure of such defects is at 
 most what the civilians temi a duty of imperfect obliga- 
 tion ; and to claim the aid of the law, you must yourself 
 be vigilant. If, however, you should, during the treaty, 
 industriou.sly prevent the purchaser from seeing a defect 
 which might otlien\-ise have easily been discovered — for 
 example, if you carefully conceal from him the necessary 
 repairs of a wall to preserve the estate from the sea, the 
 contract would not bind the purchaser. In one case, a
 
 DEFECTS. — FALSE DESCEIPTION. 15 
 
 seller plastered up a defect in a main wall, and papered it 
 over, so as to conceal the defect, and the purchaser was 
 relieved from the contract. 
 
 So if there is a latent defect in your estate, of which 
 you are aware, and which the purchaser could not by 
 any attention whatever possibly discover, you are, it 
 seems, bound to disclose it to him, although you should 
 sell the estate expressly subject to all its faults. Ui)on 
 this point, however, the authorities are divided. 
 
 This point has several times arisen on the sale of 
 ships sold with all faults, yet described in an attractive 
 manner, and kept afloat, so that the defects well known 
 to the seller cannot be discovered, and that has been held 
 to be a fraud, which renders the sale void. But gene- 
 rally speaking, a sale with all faults is binding, and the 
 seller is not bound to disclose faults within his own 
 knowledge, although he must not conceal them. When 
 a seller knows there is a defect, which was concealed 
 before he acquired the property — for example, where the 
 defective wall was plastered and papered over before his 
 purchase, and he only acquired a knowledge of the con- 
 cealment after his purchase, and he sells with all faults, 
 still he should disclose the defect, although this is a 
 doubtful point in law. 
 
 If you actually describe the estate in the particulars 
 of sale or agreement, you will, of course, be bound by 
 the description. And if you misdescribe the estate with 
 a fraudulent intent, it is unimportant that you expressly 
 stipulated that an error in the description of it should 
 not annul the sale. This was decided before the Reform 
 Act, in a case where the estate was described to he about 
 a mile from a horough-town ; and it was provided in 
 the conditions of sale that an error in the description 
 should not vitiate the sale. It turned out that the
 
 1 6 M ISDESCRIPTIONS. 
 
 ostatf \v!vs between tliree and four miles fi'om the place, 
 jintl thcntorc the purchaser resisted the contract, and 
 hrou;;lit an attion for recovery of the deposit whicli he 
 hml i»aid. It was left to the jury to say, whether this 
 was incnly an erroneous statement, or the misdescrip- 
 tion was wilfully introduced to make the land appear 
 mon- valuable from being in the neighbourhood of a 
 borougli-town. In the former case, the contract re- 
 mained in force ; but in the latter case, the purchaser 
 was to be relieved from it, and was entitled to recover 
 hack his deposit. The purchaser had a verdict ; so that 
 the jury must have thought the misdescription fraudu- 
 lent. 
 
 The sale of a ground-rent cannot be enforced if the 
 rent is a rack-rent. Where the sale was of a " brick- 
 built house," and the house was built partly of brick 
 and partly of timl)er, and some parts of the exterior were 
 coni[iosed of lath and plaster only, without any party- 
 wall to the house, the purchaser was not compelled to 
 comj)lete the purchase. There must not be a substan- 
 tial ini.>description. 
 
 But although you misrepresent the nature of the pro- 
 jierty, yet the purchaser cannot be relieved if he bought 
 with full knowledge of the actual state of it : thus, if 
 you describe an estate to be in a ring-fence, and the 
 buyer knew that it was intersected by other lands ; or 
 you warrant a house to be in perfect repair, and he knew 
 that it was without a roof or w^indows, he cannot in 
 either case object that the property does not agree with 
 the description of it. 
 
 But it would not be safe to rely upon the purchaser's 
 knowledge in opposition to your own statement. If you 
 were to state that a house was in good repair, knowing 
 that it had the diy rot, and were not to communicate
 
 CONCEALED ENCUMBEANCES. — FALSEHOODS. 17 
 
 this fact to the purchaser, and the state of the house 
 was not perfectly visible to everybody, you could not 
 enforce the contract, although the purchaser might take 
 the property if he pleased, with a compensation for its 
 defective state. 
 
 The same rules apply to encumbrances on the estate, 
 and defects in the title to it, as to defects in the estate 
 itself. You must either deliver to the purchaser the 
 instrument by which the encumbrances were created, or 
 on which the defects arise, or you must acquaint him 
 with the facts, if they do not appear on the title-deeds. 
 If you neglect this, you are guilty of a direct fraud, which 
 the purchaser, however vigilant, has no means of dis- 
 covering. And if your attorney keep back any encum- 
 brance, he as well as you will be answerable for the 
 fraud. 
 
 Thus I have told you what truths you must disclose. 
 I shall now tell you what falsehoods you may utter in 
 regard to yom' estate. In the first place, you may falsely 
 praise, or, as it is vulgarly termed, puff' your property ; 
 for om' law, following the civil law, holds that a pur- 
 chaser ought not to rely upon vague expressions uttered 
 by a vendor at random in praise of his projjerty. And 
 it has even been decided, that no relief lies against a 
 vendor for having affirmed, contrarily to truth, that a 
 person bid a particular sum for the estate, although the 
 buyer was thereby induced to purchase it, and was de- 
 ceived in the value. So you may affirm the estate to be 
 of any value which you choose to name, for it is deemed 
 a pm'chaser's own folly to credit a bare assertion like 
 this. Besides, value consists in judgment and estimation, 
 in which many men differ. 
 
 Again, you may, with mipunity, describe your land as 
 uncommonly rich water meadow, although it is imper- 
 
 B
 
 1 8 MISREPRESENTATION. — PUFF. 
 
 IVctly wiitoreiL In selling an advowsonyou may, in like 
 manner, sUite that an avoiclance of the living is likely to 
 (KTur soon. So where a renewable interest is sold, and 
 a fine nn renewal is payable, the .seller may state it to be 
 a small fine, although it is of considerable amount. Such 
 statements are cautions to purchasers to inquira So 
 mere puff", as that a house is fit for a re.spectable famOy, 
 is entitled to no weight ; but you must not, in answer to 
 inquiries, assert, contraiy to the fact, that your house is 
 not damp. You are not bound to inform the purchaser, 
 that u]tun the tenant's complaint, the full amoimt of rent 
 has not been paid ; nor are you bound to tell him what 
 offtTs have jtreviously been made to you ; for a conceal- 
 ment, to be material, must be of something that the party 
 concealing was boimd to state. But you must disclose 
 any right of s]»orting over the estate, or any right of 
 conmion over it, or any right to dig for mines upon it, 
 or the liability to repair the chancel of a church, or the 
 like. And you may not refer a purchaser to an agent 
 who is ignorant of circujustances affecting the property 
 of which you yourself are aware. If your agent should 
 be guilty of fi-audulent representation, or a fraudulent 
 concealment, you would be liable. 
 
 If you should affirm that the estate was valued, by 
 persons of judgment, at a gi'eater price than it actually 
 was, and the purchaser act upon such misrepresentation, 
 you could not enforce the contract in equity. Nor can 
 you with impunity misstate the quantum of rent paid for 
 the estate, liecause that is a circumstance within youi' 
 own knowledge : the purchaser may have no other source 
 of information ; or your tenants, if he were to apply to 
 them, might condjine with you, and so misinform and cheat 
 hira. And the purchaser will have a remedy against you 
 for the fraud, although he did not depend upon your 
 statement, but inquired further.
 
 PARTICULARS AND CONDITIONS OF SALE. 19 
 
 What I have hitherto said applies mostly to your own 
 conduct. I have still a few cautions to give you in 
 regard to those things which must be performed by your 
 agents. 
 
 Although it is the usual practice, yet you should 
 never permit the particulars and conditions of sale to be 
 prepared by an auctioneer. Auctioneers know nothing 
 of the title, and continual disputes arise from their mis- 
 statements. When a man has an estate to sell he 
 generally goes first to an auctioneer ; but I advise you 
 to go to an attorney. I may, however, caution you 
 against allowing your attorney to frame unusual condi- 
 tions, throwing upon the purchaser expenses which, 
 according to the general practice, ought to be borne by 
 the seller, and compelling him to accept such a title as 
 he would not be bound to accept under a common con- 
 tract. It may be necessary to provide for special circum- 
 stances ; but rely upon it that judicious buyers do not 
 attend an auction where improper conditions of sale 
 have been issued ; and I advise you, in the character of 
 a purchaser, never to do so without sufficient cause. 
 
 If the estate which you intend to sell has been in 
 your family for a length of time, or the title has not 
 been recently investigated, it would be prudent to have 
 an abstract of it submitted to counsel in the first 
 instance. This will enable you to clear up any objec- 
 tion which occurs, before you enter into a contract for 
 sale of the estate. By this precaution you will pievent 
 any delay on yom- part which might impede the com- 
 pletion of the sale by the time stipulated ; and you will, 
 in many cases, avoid the expense necessarily attending 
 tedious discussions of a title. Another advantage of 
 this measure is, that if there should be any defect in the 
 title which cannot be cured, it will be known only to 
 your own agents and counsel. It is, believe me, of the
 
 'JO ATTESTED COPIES. — DEPOSIT. 
 
 Utmost importance to keep defects in your title from the 
 kni)wliil;^e of persons not concerned for you. It has 
 froipuntly happened, that persons concerned for pur- 
 chasers have connnunicated fatal defects in a vendor's 
 title to the jjcrson interested in taking advantage of 
 them, l»y which many titles have been disturbed 
 
 It would be useless to state to you what provisions 
 should be contained in the jiarticulars and conditions of 
 sUc. They must be prei)arfd by your solicitor. I may, 
 however, observe, that the nature of the property should 
 be coircctly stated, and tl.at where the estate is held 
 under the same title, and sold in lots, some provision 
 siiould be made as to the expense of copies of deeds, to 
 which all the purchasers would otherwise be entitled at 
 your expense ; a bunU-n that has freipiently considerably 
 reduced the amount of the purchase-money. 
 
 Where the (le])osit is directed to be paid to the auc- 
 tioneer, he is entitled to retain it until the contract is 
 completed, without paying interest for it, because he is 
 lonsidered as a stakeholder or dcpositaiy. To obviate this, 
 wliere the sum is large, it may be provide<l that the 
 dej)osit shall be invested in Exchequer bills. You should 
 be eautious whom you employ as an auctioneer, for any 
 loss by his insolvency would fall upon you ; he is your 
 agent. 
 
 I may here observe, that an agent to sell or to buy an 
 estate may be ai)poiiitcd by parol, that is, without Avriting; 
 but you ^^^ll not act j)rudently if you do not specify in 
 writing to your a^(•nt the tenns upon which you propose 
 to .sell or buy, Tlie authonty to sell does not include 
 a power to receive the purchase-money, which therefore, 
 should never be paid to an agent without an express 
 autlionty from the .seller. Even an auctioneer to whom, 
 by the conditions of sale, the depo.sit is to be paid, has no 
 authonty to receive any further part of the purchase-
 
 POWER OF AGENT. — PURCHASE-MONEY. 21 
 
 money. If a purchaser is directed to pay the purchase- 
 money to an agent on the completion of the purchase, he 
 cannot safely pay any part of it to him before the com- 
 pletion. An auctioneer or other agent is not at liberty 
 to take a note or other security for the purchase-money. 
 The seller can compel him to pay the money. The pur- 
 chaser may safely pay the money, or remit it to a broker 
 or other person by the post, for example, if so directed by 
 the seller, and he would not be answerable for any loss, 
 if he use due precaution. If the seUer accept a valid 
 cheque on a banker for the purchase-money, and he is 
 guilty of negligence in presenting it, any loss by the 
 banker's insolvency will fall upon him. 
 
 An agent, after he has bought or sold according to his 
 authority, and entered into an agreement binding on his 
 principal, cannot vary the terms of the contract ; but if he 
 exceed his authority, his principal may, of course, ratify 
 his act. Either a seller or a purchaser may revoke his 
 authority to an agent at any time before the latter has 
 executed a binding agreement to seU or buy. An agent, of 
 course, cannot go beyond his authority. If, for example, 
 he were to bid more for an estate than he was authorised, 
 he would himself be bound as the actual purchaser, but 
 his principal would not be bound. It has been held that 
 a seUer may falsely pretend to be an agent for another, 
 although he is selling for his own benefit, and that the 
 purchaser will be bound unless he can shoAV that he has 
 suffered damage, or that the misrepresentation induced 
 him to enter into the contract. This cannot often arise 
 upon the sale of an estate. Where a purchaser of a pic- 
 ture — a Claude — from an agent, with an undisclosed 
 principal, had an impression that it came out of a par- 
 ticular collection, and the ownership in his view enhanced 
 its value, and the seller's agent, knowing that the pur- 
 chaser laboured under a deception as to the real owner
 
 2'J PUFFING AT AUCTION. 
 
 uf the picture, iK'niiitted him to remain in it, although 
 he tht»u;,'ht it would iuHuence the purchaser's judgment, 
 the eontract was held void at law. 
 
 You may. without public notice, appoint a person to 
 l)id for you at the sale, in order to prevent the estate 
 from Ining sold at an undervalue. This is generally 
 
 inuil piiffiiiff. Cicero, in liis Offices, declares liis opinion 
 iiiat a vendor ought not to appoint a imffer to rai.se the 
 ])riff ; nor ought the pureha.ser to appoint a person to 
 depreciate the vidue of an estate intended to be sold. 
 And Huber, the civUian, lays it down, that if a vendor 
 employ a puffer, he shall be compelled to .sell the estate 
 to the highest bond fide bidder, because it is against the 
 faith of the agreement by which it is stipidated that the 
 higliest Ijidder .shall be the buyer. Great contrariety of 
 opinion lias prevailed in our courts as to the legality of 
 appointing a jmffer ; but it is now .settled that you may 
 employ a person to prevent a sale at an undervalue. 
 But if you go beyond this, and send a puffer to take 
 advantage of the eagerness of bidders to screw up the 
 price, that will be deemed a fraud, and the sale will not 
 be Idniling on the piu'chaser. Neither can you ai)point 
 more than one person to bid. It is proper that a man 
 should be pennitted to appoint a person to guard his 
 iiiten-sts against the intrigues of bidders ; but it does 
 not follow that he may aj^point more than one. The 
 only possible object of such a proceeding is fraud. An 
 Jiuetion .so constituted is simply a mock auction. Your 
 ca.se would be obnoxious to the same rule were you to 
 appoint even one puffer, with unlimited power, to take 
 a<lvantage of the eagerness of bidders to increase the 
 biddings. And if you state in the particulars, or adver- 
 ti.sements, that the estate is to be sold without reserve, 
 the sale would be void against a purchaser if any person 
 Were employed as a i)uffer, and actually bid at the sale.
 
 CHAKGES OF AUCTIONEEES AND AGENTS. 23 
 
 If you employ an agent to sell an estate by public 
 auction, a sale by private contract is not "within his 
 authority ; nor does it seem to be material that the 
 estate sold for more than the price fixed, for it might 
 have fetched a still greater sum at a public auction. 
 But if an agent is directed to sell an estate by private 
 contract, and he dispose of it by public auction for a 
 larger sum than the principal required, I conceive that, 
 in most cases, the sale would be binding on the j)rincipal. 
 
 You will find it necessary to make a contract with 
 your auctioneer in order to avoid heavy charges. And 
 you should stipulate that no custom of the trade is to 
 authorise any charge not provided for by your contract. 
 You should provide for both cases — viz. the sale and the 
 non-sale of the property. If you employ more agents 
 than one, you should expressly stipulate with each of 
 them, that the commission shall be paid to the agent 
 only of whom the purchase is made, or you may have 
 also to pay large commissions to the other agents for 
 what is termed finding a purchaser. You should care- 
 fully read the card or paper with which they usually 
 supply persons applying to them ; for in some instances 
 the card or paper expressly states " that the agent • is to 
 be paid his commission although the sale should not be 
 conducted by him, if it is effected through any information 
 afforded by him," and dealing with the agent after such 
 a notice would, I fear, bind you to his terms. It is not 
 prudent to answer the inquiry by an agent whom you 
 have not employed, whether your property is to be let or 
 sold, for an incautious answer might justify him in plac- 
 ing your property on his books, and making you in the 
 result liable for some compensation to him, although you 
 really employ and pay another man.
 
 21 NEGLIXT TO KXAMINE TITLE. 
 
 T.ETTER V. 
 
 I SHALL now dismiss you fi<»m your character of a 
 M'llcr, and treat you as a Buyer. 
 
 In running; over, in my last Letter, the misstatements 
 whicli a seller may with impunity make, I of course was 
 lookiiii; to tlie situation in .vhicli I now consider you to 
 ^tand ; for when you know how ffxr an unprincipled 
 vendor may with safety go, you can guard against fraud 
 liy not tnistint; to misrepresentations which are made 
 without fear of retril)ution. 
 
 If you should have a right to avoid a purchase on the 
 ground of fraudulent representations by the seller, yon 
 ought at once to exercise your right, and not go on deal- 
 iiiii with the property as the owner of it, for such con- 
 duet may amount to a waiver of your right to rescind 
 the contract 
 
 With the exception of a vendor, or his agent, sup- 
 jtressing an cncumhrance, or a defect in the title, it seems 
 clear tliat a jturchaser cannot obtain relief against him 
 for any encumbrance or defect to which his covenants do 
 not extend ; and therefore if a purchaser neglect to have 
 the title investigated, or his counsel overlook any defect 
 in it, he has no remedy beyond what the seller's cove- 
 nants may afford. It has even been laid down, that if 
 one sell another's estate, without covenant or warranty 
 for the enjojTnent, it is at the peril of the purchaser, 
 becau.se he might have looked into the title ; and there 
 is no reason he .should have an action by the law, where 
 lie did not provide for himself. I may remark, by the
 
 LIABILITY OF LAWYEES. — EIGHT OF WAY. 25 
 
 way, that as counsel, that is, barristers, have no remedy 
 for recovery of their fees, which are considered purely 
 gratuitous and honoraiy, they are not deemed liable to 
 their clients for any blunders which they commit, how- 
 ever gross. But it is otherwise as to attorneys ; they 
 may maintain an action for their fees ; and if a pur- 
 chaser is damnified by the gross want of skill in an 
 attorney, or by his neglect to search for encumbrances, 
 he may recover at law against the attorney for any loss 
 which he may sustain. But where the attorney has 
 acted under the advice of counsel, he is safe. To return : 
 You will collect from the observations in my last Letter, 
 that as a purchaser you are entitled to relief on account 
 of any latent defects in the estate, or the title to it, 
 which were not disclosed to you, and of which the 
 vendor, or his agent, was aware. In addition to this 
 protection afforded by the law, you, as a provident man, 
 ought not to trust to the description of the vendor, or 
 his agents, but to examine and ascertain the quality 
 and value of the estate yourself, and you should have the 
 title to it inspected by counsel. 
 
 If there are rights of way over the property, you can- 
 not object, although they are not noticed in the contract. 
 A right of way is not a latent defect, and you ought to 
 inquire. If you buy a mine, and it is full of "faults," 
 you will be bound, for they are incidents to a mine, as 
 you must have known, and therefore ought to have 
 inquired. The very name of the place where the pro- 
 perty is situated may mislead you ; for example, a house 
 " in Regency Square, Brighton," was sold by auction in 
 London, and the buyer bought on that description, never 
 having seen the house. But the houses running from 
 the north-west corner of the Square into an adjoining 
 street, although in no respect within the Square, had
 
 Jt; F.\XSE STATEMENTS OR SILENCE 
 
 always Ihh'u numl)rn.'(l, and named, and treated as part 
 of the S(iuart'. This house was, unluckily for the pur- 
 cha-siT, in the street and not in tlic Square, but he was 
 eompelled to take it, as he ought to have inquired. 
 So the inunediatc neighbours may be such as to pre- 
 vent the purchaser from taking his fiimily to the house 
 recently purchased for their habitation, yet he must com- 
 plete iiis purchase. These instances are sufficient to 
 show tlie necessity of previous inquiry. 
 
 I may here remark, that although a vendor is bound 
 t«» tell the purchaser of laisnt defects, yet a purchaser is 
 not bound to inform the vendor of any latent advantage 
 in the estate. If you were to discover that there was a 
 mine on an estate, for which you were in treaty, you 
 would not be bound to tlisclose that cii'cumstance to the 
 vendor, although you knew that he was ignorant of it. 
 Nor need you as a purchaser adhere closely to truth in 
 procuring tiie estate at as cheap a price as you can. In 
 a case where a false statement by a purchaser was held 
 not to give the seller a right of action, the Court said, 
 that the question was, whether the purchaser was bound 
 to disclose the highest price he chose to give, or whether 
 he was not at liberty to do that as a purchaser which 
 eveiy seller in this town does every day, who tells every 
 falsehood he can to induce a buyer to purchase. 
 
 A purchaser may misrepresent the seller's chance of 
 sale, or the probability of his getting a better price for 
 his property than that which the buyer offers. But a 
 piirchaser is always in danger who makes an actual mis- 
 representation, which tends to mislead the seller. And 
 he cannot justify misrei)rcsenting the estate to any per- 
 son desirous of purchasing it, or concealing the death of 
 a person, of which the seller is ignorant, by which the 
 estate is increased in value.
 
 BY PUECHASEE OE BY STEANGEE. 27 
 
 In regard to false representations to a purchaser of 
 value or rent, I must still observe that the same remedy 
 will lie against a j^erson not interested in the property, 
 for making such false representations as might be re- 
 sorted to, in case such person were owner of the estate ; 
 but the statement must be made frdudulently, that is, 
 with an intention to deceive ; whether it be to favour 
 the owner, or from an expectation of advantage to the 
 party himself, or from ill-will toward the other, or from 
 mere wantonness, is immaterial. And in these cases, to 
 use the language of Sir William Grant, it will be suffi- 
 cient proof of fraud to show, first, that the fact as repre- 
 sented is false : secondly, that the person making the 
 representation had a knowledge of a fact contrary to it. 
 The injured party cannot dive into the secret recesses of 
 the other's heart, so as to know whether he did or did 
 not recollect the fact ; and therefore it is no excuse in 
 the party who made the representation to say, that though 
 he had received information of the fact, he did not at 
 that time recollect it. 
 
 And on the same ground, if a person having a right 
 to an estate permit or encom-age a purchaser to buy it 
 of another, the purchaser will be entitled to hold it 
 against the person who has the right, although a married 
 woman, or under age. And the same rule has even been 
 extended to a case where the representation was made 
 through a mistake, as the person making it might have 
 had notice of his right. 
 
 If you suspect that any person has a claim on an 
 estate which you have contracted to buy, you should, 
 before proper witnesses, inquire the fact of him, at the 
 same time stating that you intend to purchase the estate; 
 and if the person of whom the inquiry is made have an 
 encumbrance on the estate, and deny it, equity would
 
 28 EXAMINATION OF LEASES. 
 
 not afUTwards permit him to enforce his demand against 
 you. The witne.s.se.'* in this case .should take a note of 
 what |ta.s.sos, because a witness may refre.sli his memory 
 hy hulking at any paper, if he can afterwards swear to 
 the facts from his own memory. 
 
 Where it is stated upon a sale, even by auction, that 
 the estate is in lease, and there is no misi'epresentation, 
 the purcha.ser will not be entitled to any compensation, 
 although there are covenants in the lease contrary to the 
 custom of tlie country, because whoever buys with notice 
 of a lease is held to have knowledge of all its content.s. If, 
 tlierefore, you have notice of a lease, or even that the estate 
 is in the occupation of a tenant, you should not sign a 
 contract for the jnirchase of the estate until your solicitor 
 has seen and read the leases, unless the vendor will 
 stipulate in wTiting that they contain such covenants 
 only as are justified by the custom of the countiy. And 
 even .such a stipulation is not (piite satisfactory, for there 
 is frequently great difference of opinion as to what is the 
 custom of any particular place. 
 
 And in buying a leasehold estate, it is absolutely 
 necessary to know the contents of the lease, pai-ticularly 
 the covenants on the tenant's part. They may be oner- 
 ous, and may, for example, prohibit you, as the pur- 
 chaser, from assigning without the landlord's consent ; 
 yet yftu would be bound by them, becau.se you would be 
 held to have bought with implied notice of them. So it 
 is not unu.sual to stipulate, in contlitions of sale of a 
 leasehold property, that the production of a receipt for 
 the last half-year's rent shall be accepted as proof that all 
 the lessee's covenants were performed up to that period. 
 Never bid for an estate clogged with such a condition, 
 for if there hatl been a breach, of whi('h the lessor could 
 take advantage, notwithstanding his receipt of rent, you
 
 WHEN POSSESSION MAY BE TAKEN. 29 
 
 might lose the property after you had paid for it. There 
 are some acts against which no reHef can be obtained ; 
 for example, the tenant's neglect to insure, or his insuring 
 in an office, or in names not authorised by his lease ; and 
 you should not rely upon the mere fact that the insurance 
 is correct at the time of sale ; there may have been a 
 prior breach of covenant, and the landlord may not have 
 waived his right of entry for the forfeiture. 
 
 Where difficulties arise in making out a good title, 
 you should not take possession of the estate until every 
 obstacle is removed. Purchasers frequently take this 
 step, under an impression that it gives them an advan- 
 tage over the vendor, but this is a false notion : such a 
 measm^e would, in some cases, be deemed an acceptance 
 of the title. If, however, the objections to the title be 
 remediable, and you should be desirous to accept posses- 
 sion of the estate, you may in most cases venture to do 
 so, provided the seller will sign a memorandum importing 
 that your taking possession shall not be deemed a waiver 
 of the objections to the title. And although it is not 
 advisable to do so, yet you may, with the concurrence of 
 the seller, safely take possession of the estate at the time 
 the contract is entered into ; because you cannot be held 
 to have waived objections of which you were not aware ; 
 and if ultimately the purchase cannot be completed, on 
 account of objections to the title, you will not be bound 
 to pay any rent for the estate, unless it is provided for by 
 the contract. When you sell you should keep this in 
 view.
 
 80 THE AUCTION-ROOM. 
 
 T.ETTER VI. 
 
 I HAVE not yet (lisniisscd you from your character as 
 a j)urclia.si'r ; l)ut now tliat you liave, according to my 
 suggestions, viewed the property you propose to pur- 
 chase, and inquired into the nature of the leases, or if it 
 he a lease! lohl estate, into the lial)ilities of the lessee or 
 a.ssignee, and carefidly considered the conditions of sale, 
 you may venture into the auction-room. If a man pro- 
 po.ses to buy an estate l»y j)rivate contract, he generally 
 takes all proper precautions, and pertinaciously objects to 
 any unusual stipiUations in the contract on the part of 
 the seller ; yet he walks confidently into an auction- 
 room, and often bids for an estate which he has not seen, 
 and upon conditions which he has not read, or if he have 
 i-ead, has not luiderstood them. It has been gravely 
 doubted whether one man is influenced by the biddings 
 of another : few men who have attended auctions will 
 entertain this doubt. Not only are we influenced by the 
 biddings of others, as evidence that they are willing to 
 give the price they bid, Init eveiy bidding on an advance 
 of our own removes our chance as the last bidder. The 
 spirit of competition, besides, animates most men. An 
 advance bidding is an opposition to our own desire 
 openly expressed, to become the purchaser. Before, 
 therefore, you enter the auction-room, make up your 
 mind as to price, and do not be led away by the per- 
 sua.sif»ns of the auctioneer, who is the agent of the seller, 
 or the biddings of others. Bear in mind, too, that 
 puffers may be amongst the bidders, although you may
 
 COUNTEEMAND OF BIDDING. 31 
 
 not be able to ascertain the fact, and that the seller is at 
 liberty to privately appoint one bidder, to prevent the 
 property from being sold below his price. You cannot 
 therefore obtain it for less, although you may be induced 
 to buy it, contrary to your sober calcidations, at a liigher 
 price. It is rarely that an estate is put up by auction 
 fairly to be sold for what it will fetch. Notwithstanding 
 the hammer has fallen, we constantly see announcements 
 that the property was not sold at the auction, and that the 
 auctioneers are authorised to treat for the sale of it by 
 private contract. 
 
 The auctioneer is of course the seller's agent, pending 
 the completion of the sale by auction, and what you 
 woidd probably not conjecture, he becomes, by your 
 bidding, also your agent at the sale ; so that by putting 
 down as you proceed with your biddings, your name, and 
 the sum you bid, and connecting them with the descrip- 
 tion of the estate, &c. in the conditions, he can bind you 
 to the sale. 
 
 If you repent of your bidding, you may countermand 
 your bidding at any time before the lot is actually knocked 
 down ; because the assent of both parties is necessary to 
 make the contract binding : that is signified on the part 
 of the seller by knocking down the hammer. Every 
 biddino; is nothing more than an oflFer on one side, wliich 
 is not binding on either side tiU it is assented to. If a 
 bidding was binding on the bidder before the hammer 
 was knocked down, he would be bound by his offer, and 
 the vendor would not, which can never be allowed. 
 
 You need only look at the particulars and conditions. 
 An auctioneer cannot contradict them at the time of 
 sale by a verbal statement ; although, perhaps, you 
 would be bound, if he could bring home to you parti- 
 cular personal information of it. What is termed the
 
 82 15ABBLE OF AUCTION-ROOM. 
 
 babble of the auction goes for nothing. So the auctioneer 
 cannot, by reading a lease at the auction, bind the pur- 
 chaser to misdescriptions in the particulars. A mere 
 general statement to the company will not aflFect you, 
 either at law or in e(iuity. I need not suggest to you 
 how far a man may, consistently with good faith, take 
 advantage of the omission in the particulars, if he dis- 
 tinctly nn<l(rstood the verbal statement at the sale. 
 
 When the sale is concluded, if you are the purchaser, 
 you will be called up by the auctioneer and requii'ed to 
 sign a short agreement already prepared at the end of 
 the ])articulars and conditions of sale. But usually the 
 auctioneer will not offer to sign a reciprocal agreement 
 as the agent of the seller. You should not sign unless 
 a like contract is signed and delivered to you by the 
 auctioneer. 
 
 I have already informed you, that if your agent bid 
 more for the estate than you empowered him to do, he 
 himself would be liable, but you would not. But unless 
 you expressly limited him as to price, it seems that you 
 would be bound. 
 
 If after employing a man to bid, you should be so dis- 
 honest as to deny the authority (in seeking instruction 
 you must not quarrel with your master's mode of con- 
 veying it), the agent, unless he could prove the commis- 
 .sion, would be compelled to complete the purchase him- 
 .self ; but lie would afterwards be able to put you to your 
 oath as to the transaction ; and if you admitted, or he 
 could prove the authority, you would be compelled to 
 take the estate at the sum which you authorised him to 
 bid for it. I need not tell you, that by falsely denying 
 the authority, you would incur the penalty attached to 
 the commission of perjury. On the other hand, if you 
 merely employ a man by parol, that is, by word of
 
 PURCHASE BY AGENT. 33 
 
 mouth, to buy an estate for you, although he buy it accord- 
 ingly, yet if he hold, himself out as the real purchaser, 
 and no part of the purchase-money was paid by you, 
 you cannot compel him to convey the estate to you, be- 
 cause that would be directly against the provisions of an 
 Act of Parhament, called the Statute of Frauds (29 
 Charles II., chap. 3), which requires a writing in such 
 cases. And although the man should afterwards be con- 
 victed of perjury in denying the trust, yet that will not 
 enable equity to compel him to convey the estate to you ; 
 but as you cannot avail yourself, in any civil proceeding, 
 of the man's conviction, you would be a competent wit- 
 ness to prove the perjury. You would therefore have at 
 least the satisfaction of making an example of him. 
 
 The vendor cannot object that your agent purchased 
 in his own name, whereas he is a trustee for you ; for it 
 happens in a vast proportion of cases that the contract 
 is entered into in the name of a trustee ; and the mere 
 fact of a quarrel having taken place between the seller 
 and you, totally unconnected with the subject of the con- 
 tract, or even a bare refusal by the seller to deal with 
 you, is not a sufficient ground for his refusing to convey 
 to you. 
 
 But if you applied to purchase the estate, and the 
 owner expressly refused to treat with you unless the 
 money was paid down, which you were unable to pay, 
 and then you procured some other person to purchase 
 the estate on your account, it seems clear, that at least 
 the purchase -money must be ready at the very day ap- 
 pointed. So if you should apply to Mr Bigg, to sell you 
 an estate on behalf of Tompson, for whom, as we know, 
 he has a great affection, and Bigg should on that account 
 be induced to take less for the estate than he otherwise 
 would have done, or even, perhaps, without this circum- 
 
 C
 
 34 mSREPRESENTATION BY PURCHASER. 
 
 stance, the aj^enient could not be enforced against Bigg, 
 unless it wjus really made on behalf of Tonipson ; but if 
 Tonipson would j)atronise the sale, execution of the 
 agn'enient would be compelled, although he might sell 
 the estate to you the next day. 
 
 The following ca.se shows to what extent this doctrine 
 is canied. A purcha.ser of a house adjoining to another 
 oceupicd l)y the seller, agreed with the seller verbally, 
 that he would not let the house to any person not agree- 
 able to him. A man of the name of Langstaffe applied 
 for a lease, and .stated that lie knew the vendor intimately, 
 and that there would be no ol.)jection to granting him a 
 lease. The seller, however, disapproved of Langstaffe, 
 and so far from knowing him intimately, had only seen 
 him at a tavern. Lord Chancellor Camden set aside the 
 agreement which Langstaffe had obtained, with costs. 
 A similar case is mentioned in Hawkins's Life of John- 
 son. Peele, the Ijookseller, had a house near Garrick's, 
 at Hampton. Peele had often said that as he knew it 
 would be an accommodation to Garrick, he liad given 
 directions that, at his dccea.se, he .should have the refusal 
 of it. On Peek's death a man in the neighbourhood 
 applied to the executor.s, pretending that he had a com- 
 mission from a friend or relative of Peele's, who lived 
 in the country, to buy the house at any i)rice, and he 
 accordingly obtained a conveyance of it to a person 
 nominated by him, under a secret trust for himself. 
 Ganick filed a bill against hun, and the purchase was 
 declared fraudulent, and set aside with costs. 
 
 I must here observe, that you cannot, even at an 
 auction, jjurchase any property for yourself of which 
 you are a trustee for another. If, however, the person 
 for whom you are a trustee is, what we lawyers term sui 
 juris, that is, of legal capacity to contract for himself, he
 
 PURCHASE BY TEUSTEE, SOLICITOR, ETC. 35 
 
 may certainly sell to you, but you must first, with his 
 assent, shake off your character as a trustee, and you 
 must freely disclose to him all your knowledge of the 
 property. Por the rule is, not that you may not buy 
 from the person for whom you are trustee, but that as a 
 trustee you cannot buy from yourself. And in all cases 
 of this nature equity looks with a very jealous eye on the 
 transaction. The same rule forbids an assignee of a 
 bankrupt to buy the bankrupt's estate himself, without 
 at least the consent of the majority of the creditors ; and 
 it has even been thought by high authority that the 
 consent of all the creditors is absolutely requisite. 
 The rule applies equally to commissioners of bankrupt, 
 agents, and auctioneers. Your solicitor may buy of you, 
 but I should advise liim not to do so ; and if he do, 
 another solicitor should be bond fide employed by you. 
 Unless there is perfect fair-dealing, and the dealing is, as 
 it is termed, at arm's-length, it would not be allowed to 
 stand. 
 
 I may here notice a case which will probably happen 
 to you. Under yoiu- settlement, on your first marriage, 
 you are tenant for life, with a power to sell or exchange 
 the estate with the consent of your trustees ; and under 
 the settlement on your second marriage, you are tenant 
 for life of another estate, with a similar power, only it 
 is to be exercised by the trustees with your consent. 
 Under similar powers, many tenants for Hfe, with the 
 concurrence of the trustees, formerly bought the estates, 
 or took them in exchange for some of their other estates 
 of equal value ; and after great doubt in the profession 
 on the jDoint, it has finally been determined that such 
 sales and exchanges are valid. You may, therefore, if 
 you should be so desirous, deal with your trustees imder 
 either of your powers.
 
 36 PURCHASE IN NAMES OF CHILDREN, ETC. 
 
 If you jiurcliasi' an csUitc, and take a conveyance of it 
 in the name of a stranger, as the real ])Uiclia.ser, althouL!;h 
 you have no declaration of trust from him, yet you will 
 be etititU'd to the estate if it can be proved that it was 
 paid f(tr with your money. If, however, you deliberately 
 declare, althouiih verbally, that the purchase was made 
 for the man's benefit, he will be entitled to retain the 
 estate JUS his o^vn. And if you take a conveyance in the 
 name of one of your children, for whom you have not 
 made a provision, without declaring him a trustee for 
 you, the consideration of r>lood 1)etwcen you will fix the 
 estate in the child, although illegitimate, for his own 
 benefit ; nor can you defeat his claim by any subsequent 
 declaration of your intention. The same rule applies to 
 a purchase in the name of your wife, or of a grandchild, 
 if its parent is dead. But all purchases of this kind are 
 open to much objection. If you intend the conveyance 
 to be for the party's own benefit, it should be expressly 
 declared to be so on the face of it. If, on the contrary, 
 you mean it to be in trust for yourself, the trust should 
 be declared by the deed, or you should take a declara- 
 tion of trust by a separate instrument. 
 
 If you and another })urchase lands, and advance the 
 money in equ;d portions, and take a conveyance to your- 
 selves and your heirs, the survivor will take the whole 
 estate ; for the purchase would be considered to be made 
 by you jointly of the chance of survivorship, which may 
 happen to the one of you as well as the other. But 
 where the proportions of the money are not equal, and 
 this appears in the deed itself, the rule is otherwise, and 
 the survivor will ha a trustee for the representatives of 
 the other, in proportion to the sums which you severally 
 advanced. However, even where the money is advanced 
 equally, you should never take a conveyance in this way ;
 
 JOINT PURCHASES. 37 
 
 but the estate should be conveyed to you and the other 
 purchaser in moieties. There is no relying on the joint- 
 tenancy : the other party may defeat it by a secret deed, 
 which, if you survive, will be produced, and his heir will 
 be entitled to his share ; whereas, if he survive, he will 
 keep it back, and claim the whole estate. 
 
 I must still observe, that in all cases of joint under- 
 taking or partnership, although the estate will belong to 
 the survivor at law, yet in equity he will be a trustee as 
 to the share of the deceased partner for his representa- 
 tives ; so that if you and another were to take a building- 
 lease jointly, and lay out money in erecting houses on 
 the land, the survivor would be compelled to assign a 
 moiety of it to the representatives of the deceased. 
 
 If you and another are in treaty for the purchase of 
 an estate, and you agree to desist, and permit him to go 
 on with the intended purchase upon his promising to let 
 you have a part of the estate, you should require a 
 written agreement from him ; for it seems, that although 
 he should get the estate, he would not be bound by a 
 mere parol or verbal agreement to convey part of it to 
 you.
 
 88 WRITTEN CONTRACTS. — LETTERS. 
 
 LETTER VII. 
 
 The present Letter concerns you both as a Buyer and 
 Seller. 
 
 Generally sjieakino-, a written agreement is essential 
 to a valid contract for the sale or purchase of an estate. 
 Tills is required by the statute of 29 Car. II., cap. 3, 
 u.sually called the Statute of Frauds ; and it must be 
 signeil by the party whom you wish to be bound by it, 
 or his agent, to whom a verbal authority for that pur- 
 po.se will be sufficient ; and the agreement must distinctly 
 contain all the terms, such as the names of the parties, 
 the estate to be sold, and the consideration to be given 
 for it ; nothing can be supplied by parol evidence. 
 There are, indeed, some exceptions to this rule in equity 
 — If the party resisting the contract admit the agree- 
 ment, and do not claim the benefit of the statute, or if 
 he have acted fraudulently, equity will compel the fulfil- 
 ment of the agreement, although merely verbal, and not 
 reduced to writing, and signed by the parties. As an 
 instance of what is deemed a sufficient fraud to enable 
 equity to reheve, I may obsei-ve, that if you were ver- 
 bally to sell me an estate, and I in performance of part 
 of the agreement were to lay out money in repairs, you 
 could not afterwards resist my claim to a conveyance of 
 the estate. 
 
 Letters which have passed between parties have fre- 
 quently been held to amount to an agreement ; there- 
 fore, in writing about the sale or purchase of an estate.
 
 LETTERS. — ACCEPTANCE OF OFFER. 39 
 
 you should always cautiously declare your offer or pro- 
 posal not to be final, lest the other party should entrap 
 you, against your intention, into a binding contract. If 
 upon a treaty for sale of your estate, you should write a 
 letter to the person wishing to buy it, stating that if 
 you part with it, it shall be upon such and such terms 
 (specifying them), and such person, upon receipt of the 
 letter, accept the terms mentioned in it, your letter 
 will be deemed equivalent to an agreement. So, if you 
 are in company, and make offers of a bargain, and then 
 write them down and sign them, and the other party — 
 that is, the person to whom the offer is made — take 
 them up and prefer his bill against you, the proposal 
 will be binding on you. But if it appears that, on 
 being submitted to any person for acceptance, he had 
 hastily snatched it up, and refused you a copy of it, 
 or if, from other circumstances, fraud in procuring it 
 may be inferred, it seems, that in case of an action, it 
 would be left to the jury to say, whether you intended 
 it at first to be a valid agreement on your part, or as 
 only containing proposals in writing, subject to future 
 revision ; and if the aid of equity be sought, these 
 circumstances would have equal weight with the Court. 
 In every case it must be considered whether the note 
 or correspondence import a concluded agreement : if it 
 amount merely to treaty, it will not sustain an action or 
 suit, and a letter must, hke a regular agreement, con- 
 tain all the terms. And the answer must be a simple 
 acceptance, without introducing any new stipulation or 
 any exception. If the answer were, for example, an 
 offer of a less sum, the original offer woidd no longer be 
 bmding, and the other party could not revive it by sub- 
 mitting to pay the price at which the offer was made. 
 An offer to sell may be recalled or modified at any time
 
 40 LETTERS BY POST. — RECEIPTS, ETC. 
 
 before it is accepted, and an olTcr to i)urfl)ase may, of 
 course, in like manner, be recalled or modified. Al- 
 though the offer is left open for the acceptance of the 
 other party for a period named — for exam])le, fourteen 
 days — yet it may be retracted at any time before the 
 fourteen days, if the other party have not already ac- 
 cepted it. If the acceptance is sent by letter by post, it 
 vnl\ be binding on the ^^Titer, although the other party 
 do not receive it till the day following. If even the 
 writer were to die on the same day after lie had posted 
 his letter, the acceptance would be binding, it seems, on 
 his representatives. 
 
 A receipt for the purchase-money, if it contain the 
 terms, will be a sufficient agreement. And even a letter 
 to your attorney, stating the terms, and directing him 
 to cany the agreement into execution. Mill have the 
 same operation. 
 
 It is not, however, sufficient that a person present at 
 the making of the agreement reduced it into writing, 
 unless it was sigiied by the parties ; nor is the delivery 
 of rent-rolls, particulars of the estate, abstracts of title, 
 &c. on the treaty for sale, equivalent to an agreement ; 
 neither is it sufficient that both parties verbally direct 
 an attorney to prepare the conveyance : with the excep- 
 tions before alluded to, there must be an agreement 
 signed by the party to be charged; that is, by the 
 party against whom relief is sought ; for if you sign an 
 agreement to sell or buy an estate, the other party 
 acting bond fide may proceed against you, although he 
 himself never signed it. You should always require the 
 party with whom you deal to sign when you do. 
 
 I may observe, that the price to be paid for the estate 
 is not weighed in very nice scales. As the rule now 
 stands, the consideration must, indeed, be grossly inade-
 
 INSUFFICIENT PKICE. — HEIE. 41 
 
 quate or unreasonable to enable equity to refuse its aid ; 
 and at law, unless it is merely fraudulent and nominal, 
 the amount of the consideration would not prevent the 
 party benefited from recovering damages for a breach of 
 the contract by the other party. But fraud is an excep- 
 tion to every ride. A case arose, where an agreement was 
 made for sale of land at a halfpenny per square yard. 
 The price was in all about £500 ; the real value i?2000. 
 The purchaser went out to an attorney, got him to cal- 
 culate the amount, and desired him not to tell the vendor 
 how little it was ; then carried the agreement to the 
 vendor, and prevailed on him to sign it immediately. 
 The desire of concealment was considered such a fraud 
 as would avoid the transaction, because parties to a 
 contract are supposed, in equity, to treat for what they 
 think a fair price. 
 
 But I must remark, that the case of an heir selling 
 his expectancy stands on its own grounds, and very 
 slight circumstances will enable equity to set aside the 
 contract. It has been laid down, that the heir of a 
 family, dealing for an expectancy in that family, shall 
 be distinguished from ordinary cases, and an uncon- 
 scionable bargain made with him shall not only be 
 looked upon as oppressive in the particular instance, 
 and therefore avoided ; but as pernicious in principle, 
 and therefore repressed. There are two powerful reasons 
 why sales of reversions by heirs should be discounte- 
 nanced ; the one, that it opens a door to taking an 
 undue advantage of an heir being in distressed and ne- 
 cessitous circumstances, which may, perhaps, be deemed 
 a private reason ; the other is founded on pubhc policy, 
 in order to prevent an heir from shaking off his father's 
 authority, and feeding his extravagancies by disposing 
 of the family estate.
 
 42 Ai;l!ITKAT()K.S. — INVESTMENT OF DEPOSIT. 
 
 But a hiniit fide ]iurchase at an auction, of a reversion, 
 cannot iinw !»»■ imjieaelied. 
 
 Never leave the ])rice to be fixed by sui-veyors or arbi- 
 trator ; for if they refuse to value the estate, or disagi-ee 
 in the valuation, you cannot enforce the performance of 
 the contract. This, however, is not the case where it is 
 merely agreed that the estate shall be taken at a fair 
 valuation, without specifying the mode in which it shall 
 be made. But even this mode is objectionable. 
 
 If upon the purchase of an estate you pay a deposit, 
 and afterwards Ijccome entitled to a return of it, because 
 the seller cannot make a title, you would not be com- 
 pelled to take any stock in which he may have thought 
 proper to invest it without your consent. And your 
 assent will not, it seems, be implied from notice having 
 been given to you of the investment, to which you did 
 not rei)ly. It would not, however, be prudent to be 
 silent in such a case. Where the deposit is considerable, 
 and it is probable that the purchase may not be com- 
 pleted for a long time, it is for the benefit of both parties 
 to enter into an arrangement for an investment of the 
 deposit, so as to make it productive of interest. 
 
 You cannot, as a purchaser, because delays arise, 
 deposit your money at a private banker's, or in the 
 Bank of England, or convert it into stock at the risk of 
 the seller ; notwithstanding such a deposit, the principal 
 will remain entirely at your own risk ; nor is it material 
 that you gave the vendor notice of the deposit, unless 
 he took the risk on himself, by agreeing to accept it as 
 a payment. And as he would not be bound, without 
 his ex])ress assent, by a deposit, he could not, unless he 
 had bound himself, claim any benefit by a rise in the 
 funds. So if you sell out stock to answer the purchase- 
 money, and the title prove bad, without any fraud in the
 
 INTEEEST. 43 
 
 seller, and then you re-purcliase at a loss, you are not 
 entitled to any allowance on that account, for you had a 
 chance of gaining as well as losing by fluctuation in the 
 price of the stock. 
 
 Continual disputes arise as to interest. The pur- 
 chaser is entitled to the profits of the estate from the 
 time fixed upon for completing the contract, whether he 
 does or does not take possession of the estate ; and as 
 from that time the money belongs to the vendor, the 
 purchaser will be compelled to pay interest for it if it be 
 not paid at the day. Upon this rule, no difficulty could 
 ever arise if the purchase-money were not frequently 
 lying dead ; in which case it becomes a question upon 
 whom the loss of interest shall fall. The loss must be 
 borne by the party by whom the delay has been occa- 
 sioned. It seems, however, that although the delay is 
 with the seller, and the money is lying ready, and with- 
 out interest being made by it, yet notice should be given 
 to him that the money is lying dead, because otherwise 
 there is no equality — the one knows the estate is pro- 
 ducing interest, the other does not know that the money 
 does not produce interest ; and in all cases, where a 
 purchaser resists the payment of interest, he must show 
 that the money was lying dead, and bond fide appro- 
 priated to answer the purchase. But I would advise 
 you never to let your money lie dead ; you can at least 
 lay it out in Exchequer bills ; and, somehow or other, 
 each party invariably insists that the other has occa- 
 sioned the delay. 
 
 It has become usual to stipulate, upon a sale by auc- 
 tion, that if the purchase is not completed at the time 
 appointed, from whatever cause, the purchaser shall 
 pay interest on the purchase-money. The true mean- 
 ing of this condition has led to much difference of
 
 44 RATK OF INTEREST. — TIMBER 
 
 opinion oji tlic equity bench. It may be considered to 
 ai»l)ly to delays caused l)y tlie state of the title, or other 
 c;iu.ses, although the purchaser himself is in no respect 
 in fault, but it would Jiot enalde the seller wilfully to 
 delay the completion of the contract, or to be grossly 
 negligent, and yet to claim interest during the delay. 
 
 Interest is not payable until the principal is payable, 
 and that is not payable until it is seen whether the 
 contract can be completed. If, therefore, a long delay 
 take place in the completion of a contract, but the lien 
 which the law gives to the vendor, on the estate sold for 
 the purchase-money, has been kept on foot by acknow- 
 ledgment, interest will be payable on the purchase- 
 money for the whole time it ought to be paid under 
 the contract, notvsdthstanding the Act of Parliament to 
 vvliich, in Letter XXII., I shall draw your attention, by 
 which interest on such a lien could not in general be 
 recovered for more than six years. 
 
 In the case of timber on an estate to be taken at a 
 valuation, interest on the purchase-money will only com- 
 mence from the valuation, although the interest on the 
 purchase-money for the estate itself may be carried a 
 great way back, because surveyors always value timber 
 according to its present state ; and the augmented value 
 of the timber by growth is an equivalent for the interest 
 from the time of the contract to the making of the 
 valuation. 
 
 The usual rate of interest allowed in equity is four 
 per cent ; but in some few cases the Court has given 
 five, because that was the current interest of money ; 
 and to give only four was holding out an inducement to 
 persons to delay the completion of contracts. However, 
 the general rule confines the rate to four per cent. 
 
 I may here observe, that as the estate belongs to the
 
 INSURANCE. — IlRE. 45 
 
 purchaser from the time of the contract, he is entitled 
 to any benefit which may accrue, and must bear any loss 
 which may happen to it before the conveyance. If a 
 house is even burned down, yet the purchaser must pay 
 for it, although the seller permit the insurance to expire 
 without giving him notice. You should, therefore, upon 
 entering into an agreement to buy a house, provide for 
 the insurance of it till the completion of the contract.* 
 Again, if you agree to buy an estate held for lives, and 
 all the lives drop the next day, still you must pay your 
 money. On the other hand, if you purchase a reversion 
 subject to an estate for life, you will be entitled to a 
 conveyance at the original price, although the estate has 
 fallen into possession by the death of the tenant for life. 
 In all these respects our law agrees with the civil law. 
 
 If you buy an estate in consideration of an annuity 
 which you are to pay to the seller for life, and he die 
 before the estate is conveyed to you, or even before a 
 payment of the annuity become due, yet you will be 
 
 * A word of ad\dce about your Fire Insurance. Very few policies 
 against fire are so framed as to render the company legally liable. 
 Generally the property is inaccurately described with reference to the 
 conditions under which you insure. They are framed by the company, 
 who probably are not unwilling to have a legal defence against any claim, 
 as they intend to pay what they deem a just claim, without taking 
 advantage of any technical objection, and to make use of their defence 
 only against what they may believe to be a fraud, although they may not 
 be able to prove it. But do not rely upon the moral feelings of the 
 directors. Ascertain that your house falls strictly within the conditions. 
 Even having the surveyor of the company to look over your house before 
 the insurance, will not save you, unless your policy is correct. To illus- 
 trate this, I will tell you what happened to myself. I have two houses 
 in different parts of the country, both of which open from a drawing- 
 room by a glass-door into a conservatory. The one I had insured, for a 
 good many years, from the time I built it ; the other I had insured, for 
 a few years, from the time I bought it, in the same office, when a partial 
 fire broke out in the latter, and I was then told by the office — a highly 
 respectable one — that my policy was void, as the opening to the conserva- 
 tory rendered it hazardous, and if so, of course both policies had been
 
 46 LIFE ANNTHTY. — TBIBER. — FIXTURES. 
 
 entitled to a conveyance of the estate without in fact 
 payiiiii for it. But in a case of this kind, if a payment 
 of the annuity bocoine due before the conveyance is exe- 
 cuted, you should cautiously pay it on the very day ; for 
 a neglect on your ]>art would, it seems, bar your right to 
 the estate if the seller should afterwards die before it is 
 conveyed to you. 
 
 I may here remark, that if a man by mistake purchase 
 from another an estate to which he himself is entitled, he 
 may recover back the money which he paid for it. 
 
 Questions sometimes arise upon a sale as to timber 
 and fixtures. A contlition that a purchaser shall pay for 
 the timber on the estate will include trees considered as 
 timber, according to the custom of the country, although 
 not strictly timber ; and where the purchaser is to pay 
 for timber-Uke trees, even pollards may be considered 
 to fall within the condition. As to fixtures, where 
 nothing is said about them, common fixtures would pass 
 to the purchaser imder the common conveyance, without 
 
 void from their commencement. I was prepared to try the question, 
 and ultimately the objection was withdrawn, and my loss was paid for. 
 Upon renewing my policy, with some alterations, I actually had some 
 difficulty with the clerk of the company to induce, or rather to force 
 him, to add to the description the fact, that the drawing-rooms opened 
 through glass-doors into conservatories. In treating, at a later period, 
 for a policy with another company, I required them to send their sur- 
 veyor to look at the house ; and the stoves and everything to which objec- 
 tion could be taken were sho\vn to him. The company then prepared 
 the policy, and made it subject to the report made to them by their 
 surveyor, referring to it by date. This report I never saw, and the 
 objectionable stoves, &c., were not noticed. Of course I had the refer- 
 ence t<j the report struck out, and the policy made correct, but not with- 
 out some personal trouble. I state these circumstances, to show you 
 how careful you should be. I advise you to look at once at your existing 
 policy. If you have added an Amot's stove or made any other import- 
 ant change in your mode of heating your house since your policy, or 
 you had at the time of your policy any peculiar stove, &c. not noticed 
 in the policy, you should call upon the company to admit the validity of 
 your policy, by an endorsement on it.
 
 NUISANCE. — DRAINS, ETC. 47 
 
 paying any additional price for them, unless an intention 
 could be collected from the conveyance or the contract 
 that the fixtures should not pass. 
 
 You cannot safely buy a property where a nuisance 
 upon it exists ; for if there be a nuisance there, although 
 the property is in lease, and you cannot remove the 
 nuisance, yet by your purchase you would render yourself 
 liable for it. If the nuisance were created by the occu- 
 pier after your purchase, you would not be responsible ; 
 but if the tenancy were a short one, and you were to 
 renew it with the existing nuisance, you would be respon- 
 sible. You are not to let the property with the nuisance 
 upon it. 
 
 It has long since been laid down by high authority, 
 that if a man has two houses contiguous, and one has a 
 house of office which is separated from the cellar of the 
 other by the wall which keeps in the filth of the house 
 of office, and he sells that house, the purchaser must keep 
 in the filth of the house of office, so that it shall not run 
 in upon the other house. And it would have been all 
 one if the vendor had sold the house with the cellar ; then 
 he must have kept the wall of the house of office so as to 
 have kept the filth in, for every man must take care to 
 do his neighbour no damage. If a man erect a house, 
 and a house of office, and the latter adjohi to a vacant 
 piece of ground belonging to him, which keeps in the 
 filth, and then sells the vacant piece of ground, the pur- 
 chaser, if he would dig a cellar by the house of office, 
 must build a wall to it. 
 
 As to drains, where the owner of two or more adjoin- 
 ing houses sells or conveys one of the houses, the pur- 
 chaser of such house will be entitled to the benefit of all 
 the drains from his house, and will be subject to all the 
 drains necessary to be used for the enjoyment of the
 
 48 I.IADILITIES OF SELLER AND BUYER. 
 
 mijoiiiiiit: lidusrs, althouiih there is no express resei-vation 
 as to drains, tor the |iiircliaser bought tlie house such as 
 it was. Nor couhl tlie fir.st purchaser of one of the 
 houses st«»i» uj) the drains, as against the subsequent 
 purcha.ser of the other house. 
 
 If a man has two pieces of pasture which lie open to 
 one anotlier, and sells one piece, the purchaser must keep 
 in liis cattle, .so as they shall not trespass uj)(m the ven- 
 dor. An tiMner of two adjoining closes, separated by a 
 fence and gate, is of course not bound to keep up the 
 fence and gate, nor does he, by a sale of one of the closes, 
 impose any such liability on himself, or on the purchaser, 
 nor, by a sul)sequcnt .sale of the remaining close, does he 
 cast any such liability on the later ])urchaser. There 
 must be some specific contract to bind either party. But 
 a purchaser of land, without any way to it, except over 
 other land of the seller, may by implication be entitled 
 to a way of necessity over the latter. 
 
 A man who sells part of his land cannot so deal with 
 that Avhieh he retains as to cause what he has granted to 
 risk or fall, but the extent of the support to be left must 
 de])end on the circumstances of each case. If a house is 
 sold with all lights l^elonging to it, and it is intended to 
 build upon the adjoining ground belonging to the same 
 owner, so as to inteifere with the lights, the right to 
 build in that manner should be expressly reserved. The 
 purcha.ser would not be bound by a description of the 
 house, as abutting upon building -ground belonging to 
 the seller. 
 
 Without attempting here to tell you how you may 
 exercise your rights of property generally, I may take this 
 opportunity of observing, that in working any mines to 
 which you are entitled, you must take care not to damage 
 the houses above them, for you may not work so as to
 
 TEESPASS. — SUPPOETS. — MINES. — WATEE. 49 
 
 destroy the support of the surface. As to water, you may 
 sink a well on your land, and divert by pumps and steam- 
 engines, if you think proper, the underground water, 
 which would otherwise percolate the sod, and flow into 
 the river, although there is on the banks of the river a 
 mill which has been worked by the river for more than 
 sixty years.
 
 60 1'URCHA.SE OF EQUITABLE EIGHTS. 
 
 LETTER VIII. 
 
 I HAVE Still some directions to give to you in regard 
 to Cautions u[>t)U a Purchase. 
 
 Whore you purchase any equitable right, of which 
 imnu'tliate possession cannot be had — for instance, 
 money in the funds, standing in the names of trustees, 
 in trust for a father, for life, and after his decease for 
 his son ; and you buy the son's interest during the 
 liither's life-time, you shoidd, previously to completing 
 the contract, inquire of the trustee, in whom the pro- 
 jierty is vested, whether he has had notice of any encum- 
 Immce. If the trustee make a false representation, 
 equity would compel him to make good the loss which 
 you may sustain in consequence of the fraudulent state- 
 ment. When the contract is completed you should give 
 notice of the sale to the trustee. The notice would cer- 
 tainly affect his conscience, so as to make him liable in 
 equity should he transfer the property to any subse- 
 quent purchaser ; and would also give you a preferable 
 title to any former purchaser or encumbrancer who had 
 neglected the same precaution. The safest course, how- 
 ever, is to prevail u})on the trustee, if you can, to join in 
 the assigmnent to you, or, if he decline to join, to allow 
 you to endorse on his settlement a memorandum of the 
 assignment to yon. 
 
 If you shoukl purchase, with notice of the claim of 
 another, although he has not a conveyance, and you 
 {letually procure the estate to be conveyed to you, yet 
 you will be bound in equity by the notice ; for it is a
 
 NOTICE TO PUECHASER. 51 
 
 general rale in equity that a purchaser with notice is 
 bound to the same extent, and in the same manner, as 
 the person was of whom he purchased. I will give you 
 an instance of this : You know that I have lent Tomp- 
 son <£'1000, and that he has agreed to secure it by a 
 mortgage upon his estate. Now this gives me merely 
 an equity, that is, a right to call upon him in a court of 
 equity to execute a mortgage to me. TiU that is done 
 the entire ownership at law remains in him. If you 
 should purchase the estate from him before the mort- 
 gage is executed, without notice of my loan, you would 
 hold the estate discharged from it ; for by the conveyance 
 you would get the legal estate, and by the contract the 
 equitable estate ; so that having both law and equity on 
 your side, you would prevail over me who have equity 
 only. For it is a rule, never departed from, that a bond 
 fide purchaser for a valuable consideration, and without 
 notice, shall not be affected in equity. This has been 
 carried so far, that a purchaser has been allowed to take 
 advantage of a deed relating to the estate, wliicli he stole 
 out of a window by means of a ladder. I could hardly, 
 however, advise you to be so bold at the present day. 
 But m my case, as you have notice of the loan, you would 
 be bound by it, although you procure the legal estate, and 
 equity would accordingly compel you to execute a mort- 
 gage to me pursuant to Tompson's agreement. In all 
 these cases, therefore, you should stop your hand. 
 
 Notice, I must observe, before payment of all the 
 purchase -money, although it be secured, and the con- 
 veyance actually executed, or before the execution of the 
 conveyance, notwithstandmg that the money be paid, is 
 equivalent to notice before the contract. 
 
 It is not necessary that you should have express 
 notice ; for instance, in my case it is not essential that
 
 52 NOTICK T(1 PURCnASER's ATTORNEY. 
 
 y«ni should a(>tiially st'c an<l read Toinpson's afjreement 
 with iiR' ; for equity liolds nuuiy acts to amount to 
 coixstructive notice to a purchaser; and constructive 
 notice is equally l)indiii.<; with actual notice. Against 
 some of these you cannot guard by any precaution; but 
 there is one of which I must warn you. Notice to your 
 counsel, attorney, or agent, would be notice to you, for 
 other^vise, to use Lord Chancellor Talbot's words, a man 
 who had a mind to get another's estate might shut his 
 own eyes, and enii)loy another to treat for him, which 
 would l)e a manifest chedt. And the same rule pre- 
 vails, although the counsel, attorney, or agent, be the 
 vendor, or be concerned for both vendor and purchaser. 
 The notice, however, must be in the same transaction, 
 becau-se, as Lord Chancellor Hardwicke observed, if this 
 were not the rule of the Court it would be of dangerous 
 consequence, as it would be an objection against the 
 most able counsel, because of course they would be more 
 liable than others of less eminence to have notice, as 
 they are engaged in a great number of affairs of this 
 kind. 
 
 It can seldom happen that your attorney, or agent, 
 has notice of any encumbrance on an estate which you 
 intend to purchase, unless he is employed by the seller 
 as well as you. Attorneys are frequently employed on 
 both sides, in order to save expense. This practice has 
 been discountenanced by the Courts, and is often pro- 
 ductive of the most serious consequences ; for it not 
 rarely happens, that there are encumbrances on an estate 
 which can only be sustained in equity, and which will 
 not bind a purchaser who obtains a conveyance without 
 notice of them. Now, as I have just mentioned, notice 
 to your agent, although concerned for the vendor as well 
 as you, is treated in equity as notice to you ; and there-
 
 DANGEEOUS TO EMPLOY SELLEE's ATTOENEY. 53 
 
 fore, if the attorney is aware of any encumbrance, you 
 will be bound by it, although you yom'self were ignorant 
 of its existence. 
 
 And by employing the vendor's attorney you may 
 even deprive yourself of the benefit to be derived from 
 the estate lying in a register county ; the register may 
 be searched and no encumbrance appear ; yet if the 
 attorney have notice of any unregistered encumbrance, 
 equity will assist the encumbrancer in establishing his 
 demand against you. I must explain to you that the 
 register comities are Middlesex and York ; and all in- 
 struments affecting lands in those counties are required 
 by Act of Parliament to be registered in offices kept for 
 that purpose, and they are declared to be binding, ac- 
 cording to their priority of registry. But although your 
 conveyance should be didy registered, yet if you had 
 notice of a prior unregistered conveyance, equity would 
 hold you liable to it ; for the Acts of Parliament were 
 only intended to give you notice of prior deeds ; and if 
 you have notice independently of the acts, the intent of 
 the Legislature is answered. 
 
 Another powerful reason why you should not employ 
 the vendor's attorney is, that if the vendor be guilty of a 
 fraud in the sale of the estate, to which the attorney is 
 privy, you, although it be proved that you were innocent, 
 will be responsible for the misconduct of your agent. 
 In one case a purchaser lost an estate, for which he gave 
 nearly £8000, merely by employing the vendor's attorney, 
 who was privy to a fraudulent disposition of the jjurchase- 
 money. 
 
 I may observe, that it has often been under the con- 
 sideration of the Legislature whether there should not be 
 a general registry throughout England. This plan would 
 entail a great and certain expense on property for a very
 
 f)! GENERAL REGISTRY. 
 
 uncertain l)oncfit. I have often directed my attention to 
 the exjtedieney of a jreneral registiy ; and my settled 
 coiunttion is that it would not be advisable. A general 
 registry wantonly expo.ses the concerns of all mankind ; 
 and, by tlie negligence of an agent, a purchaser or mort- 
 gagee may lose the estate, if the seller or mortgagor 
 fraudulently sell or mortgage to another person whose 
 deed is the first registered ; and questions upon the 
 priority of registered deeds often lead to litigation. The 
 expense of registry is considerable ; and if register-offices 
 were once established throughout the kingdom, with all 
 the patronage annexed to them, they never coidd be got 
 rid of, however objectionable they might prove, without 
 at least the country's paying a heavy compensation for 
 the loss to the officers in possession. If the law made 
 every unregistered deed void, it would be as mischievous 
 a law as ever was passed. No registry act has yet gone 
 beyond the purpose of protecting purchasers who register 
 their deeds against j)rior deeds not registered. No law 
 can impart activity and intelligence to idle and ignorant 
 persons ; and therefore many clients woidd be ruined, 
 without any neglect of their own, by the operation of the 
 proposed law. It has been said, if, under such a law, a 
 man were to purchase and pay for an estate, and his 
 conveyance were not registered within the time pre- 
 .sciibed, it would be void. The land therefore woidd 
 revert to the seller, and he would have back the estate, 
 and also keep the price paid to him. Would this be 
 endured ? 
 
 It has been said that the disclosure of private concerns 
 can scarcely be insisted on as an objection, in a country 
 where wills, which contain almost exclusively their gene- 
 ral arrangement, are rendered public documents. But 
 that this in effect is avoided by adopting a registration
 
 REGISTRY OF TITLE. 55 
 
 of the substance only. Now the substance of men's deeds 
 is precisely what they wish to keep secret. Dead men's 
 wills cannot be compared to living men's deeds. It is 
 one thing to know what I possess under a will, and an- 
 other how I dispose of it. Mere cmiosity, I am told, 
 constantly leads great numbers of persons to take the 
 trouble — and a great labour it is — to inspect the wills at 
 Doctors Commons. If, again, all deeds were directed to 
 take effect according to priority of execution, a subse- 
 quent purchaser or mortgagee could never be sure that 
 there was not some prior deed which might be registered 
 ajier his, and yet have precedence over it. If, on the 
 other hand, all deeds were to take effect according to 
 priority of registration, the delay of a prior purchaser or 
 mortgagee might, by rendering void his deed, prove 
 highly advantageous to a subsequent purchaser or mort- 
 gagee. The register would never show the existing state 
 of encumbrances on an estate by which a purchaser or 
 mortgagee would be bound, unless priority of registration 
 were the rule, and that very ride would place many 
 men's property for a time ia jeopardy. A register would 
 not work well without maps, and they would cost at least 
 two millions, and the number of deeds requiring registry 
 would destroy the plan by its own weight. These and 
 other reasons, after many vain attempts to pass a bill for 
 establishing a general registry, have at length prevailed, 
 and it seems to be universally admitted, that such a plan 
 cannot be established. But a new plan is now on foot, 
 which would ultimately require every man's estate to be 
 placed on the register, and in most cases in the name of 
 a nominal owner ; in effect a trustee who might at law, at 
 .any moment, mortgage or sell the estate for his own 
 benefit, and abscond with the money. The object is to 
 facilitate sales, and to render it as easy to sell an estate as
 
 56 PROPOSED RELIEF TO TITLE. 
 
 to sell a hundred Three per Cents ; but landowners will 
 liardly consent to divest themselves of the legal right to 
 their own estates, and leave themselves at the mercy of a 
 trustee, although they are assured that they may issue a 
 distringas against him, to prevent him from making a 
 framluU-nt mortgage or sale, and so eventually be driven 
 into a Chancery suit. The expense of a registry wcruld 
 be enoiTOous, and would in tnith be a new burden on the 
 land. 
 
 This, however, is not the place to discuss this import- 
 ant measure. In lieu of it, I propose a law which, 
 by removing various obstacles in the way of purchasers, 
 would greatly facihtate the sales of estates, and yet 
 leave the owners, as they now are, the legal holders of 
 their property ;* and a law, for which I am responsible, has 
 brought into one office, where every book may be searched 
 for one fee of Is., all judgments and other charges (other 
 than by deeds or vdlls) by which a purchaser can now be 
 affected. This was a great boon to purchasers, and 
 therefore to sellers also. 
 
 Whilst I am writing to you, the Lord Chancellor has 
 brought in, or rather there is now circulated, an import- 
 ant bill which, like mine, would relieve purchasers from 
 
 • The bill was read a second time in the House of Lords last Session, 
 but merel}' to {five time for the consideration of it. The objects are, 1. 
 To restrict the time allowed for the creation of executory devises ; 2. To 
 make thirty years instead of forty years an absolute protection to pur- 
 chasers ; 3. Not to hind a purchaser by any judgment, or the like, against 
 the seller, upon which execution has not issued ; 4. To relievo him from 
 liability on account of any lis pendens of which he had not express notice ; 
 5. To make express notice to a purchaser alone binding on him ; 6. To 
 relieve him from the liability of seeing that the succession-duty has been 
 I'aid ; 7. To render a purchaser no longer liable to see to the application 
 of the purcha-se-moncy ; 8. To make a seller liable to produce a title for 
 thirty years only ; and, 9. To make vendors, and their solicitors and 
 agents, criminally responsible for concealing encumbrances or falsifying 
 pedigrees.
 
 SHORTENING OF ABSTRACTS. 57 
 
 judgments upon which execution has not issued, but its 
 principal object is to give a new and powerful operation 
 to charges on land, registered as directed, and to make 
 the registry of them notice to every one. 
 
 One great complaint at the present day, is the necessity 
 of carrjdng back abstracts of title for sixty years. This 
 period I hope to persuade the Legislature to shorten. But 
 still the want of confidence is' frequently, nay, constantly, 
 the cause of the expense upon every occasion of examin- 
 ing a long and complicated title : for if I bought an 
 estate ten years ago, which I am now offering for sale, 
 and then had the title sifted by competent counsel, with 
 the aid of an equally competent solicitor, and have the 
 opinion of the counsel, and the result of the searches to 
 show to the new purchaser, it might be supposed that, 
 upon proof of the title since the purchase, and of my undis- 
 turbed possession from that period, the title would be 
 deemed satisfactory. But no such thing. Upon every 
 occasion the early title is again submitted to counsel, not 
 more learned with the aid of solicitors, not more com- 
 petent than those before employed, and this causes that 
 repetition of expense of which both sellers and purchas- 
 ers so much complain, but which reaUy is not necessary 
 in the great majority of cases, if men would but place 
 reasonable confidence in those who advised the seller 
 (always presuming them to be competent persons) upon 
 his purchase.
 
 •■ift PURCHASE OF LIVING : ADVOWSON. 
 
 LETTER IX. 
 
 As you are anxious to obtain Cliurch preferment for one 
 of your sons, I shall state to you how far you may legally 
 l»uy it. The great object is to steer clear of Simony, 
 which is a coiTupt contract for an ecclesiastical benefice. 
 It (lenves its name from Simon Magus. 
 
 It is clear and direct sunony to purchase a presenta- 
 tion whilst the living is vacant ; but the great probabi- 
 lity of a speedy vacancy is immaterial if the purchase be 
 not cornipt. It has been held, that although the incum- 
 l)ent is on his deathbed, and it is uncertain whether he 
 will live over the night, a man with full notice of this 
 circumstance may safely purchase ; and that the death 
 of the incumbent the next moment will not impeach the 
 validity of the transaction. A man may purchase, whilst 
 the living is full, the next or any other presentation ; and 
 he may purchase the advmvson, either whilst the living 
 is full, or even during its vacancy ; but in the latter case 
 the presentation could not be obtained by the purchase 
 of the advowson, for the avoidance cannot be granted, 
 because it is against public utility, and opens a door to 
 simony. But although the avoidance does not pass in 
 such a case, yet if the purchaser of the advowson usurp 
 the right of presentation, the offence of simony will be 
 committed. 
 
 Ijut a man cannot purchase a presentation, even whilst 
 the living is full, with an intent to present a particular 
 person, and afterwards legally present him ; it is even 
 doul)tful whether such a purchase and subsequent pre-
 
 BONDS OF RESIGNATION. 59 
 
 sentation can be legally made by a father for his child. 
 And where the living is vacant, if the advowson is 
 purchased with a corrupt view for presenting, that may 
 avoid the purchase. And therefore if you purchase a 
 presentation, or an advowson, whatever your intentions 
 may be, you should not disclose them. 
 
 A clergyman is prohibited from buying a presentation 
 for his own preferment, but he may purchase the ad- 
 vowson itself, and upon a vacancy cause himself to be 
 presented. 
 
 Where a man has an advowson, and is desirous to 
 present a particular person — for example, one of his sons 
 — and a vacancy happen before he is capable of filling the 
 living, it has been usual to present some person, who 
 gives a bond to the patron to resign when the person for 
 whom the living is ultimately intended shall be of age 
 to receive it. This is a case which is very likely to 
 happen in your family. General bonds of resignation 
 were formerly very common, by which the incumbent 
 became bound to resign the living at any time upon the 
 request of the patron. Such bonds had repeatedly been 
 held to be legal, but equity always interposed, and pre- 
 vented them from being made an instrument of 
 oppression, or from being used for the commission of 
 sunony. In the time of Lord Chancellor Thurlow, how- 
 ever, it was decided in the House of Lords, upon a divi- 
 sion 1 9 against 1 8, that such bonds are illegal. The Courts, 
 however, did not give up their ancient rule, where the 
 case was not precisely like that determined in the Lords. 
 They held that you might take a bond from the incum- 
 bent to reside on the living, or to resign to the ordinary, 
 if he do not return to it within a time to be fixed, after 
 notice, and also not to commit waste ; for such a condi- 
 tion only enforces the performance of moral, legal, and
 
 r>0 BONDS OF RESIGNATION. — LAND-TAX. 
 
 rclitfious dutii's. 80 that you might make it a condition 
 that he shoukl keep the buildings in repair, and that he 
 sliould resign upon notice, in order that one of your 
 infant sons might be ])resented to the benefice. But 
 the rigiil rule was again established in the House of 
 Lords ; in consequence of which an Act of Parliament 
 was passed (9 Geo. IV., c. O-i), which validates engage- 
 ments thereafter to be made for resignation, to the in- 
 tent that any one person, or one of two persons to be 
 sjx'cially named, shall be presented, but which engage- 
 ment is to be entered into before the presentation or 
 appointment of the party entering into it. And it is 
 [trovided, that where two persons are named, they shall 
 l)e, either l)y l)lood or marriage, an uncle, son, grandson, 
 l)rother, nephew or grand-nephew of the patron, or of 
 any married woman whose husband in her right shall be 
 the patron. And certain regulations are enjoined as to 
 the execution and deposit of the deed, in order to prevent 
 fraud. 
 
 I do not think it necessaiy to point out to you the 
 f<irfeitures and punishments which are incurred by 
 simony. They are very heavy, and yet are not suffi- 
 cient to deter men from every day committing the crime 
 which they are intended to punish. 
 
 You ask me about the propriety of purchasing your 
 land-tax. If you are likely to build, or otherwise im- 
 prove your property, it would be advisable first to redeem 
 the land-tax ; but if you have no such intention, by buying 
 the land-tax you would simply assist the Government in 
 imposing a new tax on the land, which they will no 
 doubt do as soon as the land-tax is generally redeemed, 
 without regard to the large prices paid by the landed 
 interest for the redemption of the tax, or of the fair
 
 PURCHASE OF LAND-TAX. 61 
 
 acres which have been severed from estates, or the noble 
 timber felled upon them to raise money for the re- 
 demption, and without regard to the heavy impost on 
 land under the Succession Duty Act. In order to 
 induce persons to buy up the remaining land-tax, the 
 price of redemption has been reduced by £17, 10s. per 
 cent below the terms fixed by the 42 Geo. III. c. 
 116.* It appeared to me that this enactment would 
 enable strangers to buy up the land-tax on other men's 
 estates, which would cause great dissatisfaction. To 
 meet this objection, another act was passed in the same 
 session,-|- which excludes all persons and corporations 
 from the right to redeem land-tax except those having 
 an interest in the land, and to whom preference in the 
 redemption of land-tax was given for a limited period by 
 the 42d of George III. This protects you from all 
 intruders. But then the Government tacked on to this 
 act a clause that, upon the completion of any redemption, 
 the property shall be wholly exonerated from land-tax, 
 and from any yearly rent-charge in respect of the price. 
 This was a serious alteration of the law, and will lead to 
 some inconvenience. The object, as I have said, was to 
 extinguish all the land-tax as quickly as possible. You 
 should keep in \dew this enactment, which will operate 
 upon every redemption made since the Act, and therefore 
 upon all future ones. You cannot buy the land-tax on 
 your settled estate, and keep it on foot to be redeemed 
 by the person who succeeds you, and to form part of 
 your personal estate ; nor can you buy the land-tax on 
 the rectory of which you have the advowson, and keep it 
 alive as a charge for your own benefit. In those, and in 
 all other cases, if you purchase the land-tax, it will by 
 force of the Act become extinguished. 
 
 • 16 & 17 Vict., c. 74. 1 16 & 17 Vict., c. 117.
 
 C2 REDEMPTION OF LAND-TAX. 
 
 If you (k'torminc to redeem, you slioultl apply to the 
 Olerk of the L;nul-tax Comnii.s.siouers, who will supply 
 you with printed papers containing full directions, and 
 you may at onee, if you please, transfer the stock, or 
 pay the money piice, so as to save yourself any further 
 trouble, and the contract will finally be delivered you 
 proj)erly executed.
 
 ESTATES IN FEE, FOR LIFE, ETC. 63 
 
 LETTER X. 
 
 I HAVE still some dii-ections to give to you about the 
 mortgaging, selling, settling, and devising of your pro- 
 perty ; but I have not forgotten your request that I 
 woidd first furnish you with a slight pojjular sketch, just 
 a notion, of the various ordinary interests which you 
 have acquired or may acquire in real property. Keal or 
 landed property is either held in fee or for an estate of 
 freehold, or for a term of years. The fee or fee-simple 
 includes all the interest in the land. A legal anecdote 
 has been transmitted to us from a very early period, 
 where a judge, who mdulged liimself in the euphonical 
 phrases, " I'd have you to know," and " I'd have you to 
 see," asked a learned serjeant why he had been absent 
 when the Court required his presence. His excuse was 
 that he had been turning the work of Coke upon Little- 
 ton into verse. The judge called for a sample, which 
 the Serjeant thus gravely delivered — • 
 
 " A tenant in fee-simple is he 
 That need fear neither wind nor weather ; 
 For I'd have you to know and to see, 
 'Tis to him and his heirs for ever!'' 
 
 I need not point out to you how this estate will descend ; 
 your male heirs, as you know, being preferred to the 
 females — the former taking in the order of their birth, 
 the latter all together ; but under recent legislation 
 the father and other hneal ancestors are let in in 
 default of lineal heirs, so that the father will be preferred 
 to a brother or sister, and a more remote lineal ancestor
 
 64 DESCENT: father: half-rlood. 
 
 to any of liis issue other than a nearer lineal ancestor or 
 his issue ; and i)aternal ancestors are preferred to 
 inat»-rnal ; and as in botli lines males are preferred to 
 females, and the descendants succeed to the line, and the 
 half-ljlnod is no longer excluded, the brother of the 
 half-blood, on the part of the father, will inherit next 
 after the sisters of the whole blood on the part of the 
 father and their issue, and the brother of the half- 
 l)lood on the part of the mother will inherit next after 
 the mother. As I have explained in a work of an 
 elabf)rate character, in the common case of a son 
 purchasing an estate and dying intestate, leaving issue, 
 and also havincr brothers and sisters of the whole blood, 
 and likewise brothers and sisters of the half-blood, on 
 his father's side, his own issue would take according 
 to the old canons of descent ; upon their failure the 
 new law would operate, and the father would take 
 in exclusion of all the brothers and sisters and their 
 descendants, who of course would be his issue ; but after 
 liim they would all succeed, the whole blood just as if 
 he had never intervened, the sons before the daughters, 
 and the daughters all together ; but the children by a 
 different ventre [another wife], that is, brothers and 
 sisters of the half-blood to the purchaser, would be post- 
 poned to the children of the marriage from which the 
 jmrchaser issued — viz. to brothers and sisters of the 
 whole blood, and the issue of the latter would be entitled 
 to a like preference with their parents ; and the same rule 
 would prevail in each step of the ascending pedigree. 
 The brothers and sisters of the half-blood, on the part of 
 the mother of the purchaser, that is, her children by a 
 different Imsband, will also inherit ; but not until after 
 her and she is postponed untQ all the paternal relations 
 are exhausted.
 
 ESTATES TAIL ; FOR LIFE, OR FOR YEARS. 65 
 
 I must explain to you that a fee in an estate may not 
 be a simple one — it may be limited to a particular line 
 of heirs ; for example, to a man and the heirs-male of his 
 body, which confers what is termed an estate in tail- 
 male ; and male issue, through males, can alone take under 
 it ; or to a man and the heirs-female of his body, which 
 gives an estate in tail-female, and to which only females, 
 claiming through females, can inherit ; or to a man and the 
 heirs of his body, which vests in him an estate in tail 
 general, and to which sons and daughters and their issue 
 will succeed according to the rules of descent, males and 
 their issue being preferred to females and their issue ; 
 and sometimes the limitation is to a man and the heirs- 
 male of his body, or the heirs-female of his body, or the 
 heirs of his body on the body in each case of a parti- 
 cular woman, which regulates the descent accordingly. 
 Any such tenant in tail may now by deed, enrolled in 
 manner requii-ed by statute,* bar the estate tail, and any 
 remainders over, and acquire the fee, which he can then 
 dispose of as he thinks proper. If any other person has 
 a previous estate for life, his concurrence, however, would 
 be necessary. 
 
 An estate for life, or for another man's life, is termed 
 a freehold, less than an inheritance, but still a freehold ; 
 and of course, unless expressly empowered to do so, a 
 tenant for life, ov pur aider vie, cannot grant any lease 
 or create any charge extending beyond his own interest. 
 I shall in another Letter point out to you the powers of 
 leashig and selling conferred on tenants for life by statute 
 law. 
 
 A term of years, for example, a common lease, is 
 called a chattel real, and forms a part of the owner's 
 personal estate, and is not deemed real estate. 
 
 * 3 & 4 Will. IV., c. 74, for England ; 4 & 5 Will. IV., c. 92, for Ireland. 
 
 E
 
 GG ENFRANCHISEMENT OF COPYHOLDS. 
 
 I have not yet said anything in respect of copyholds ; 
 I. lit alU>wing for the difterent qualities of the tenui'es, the 
 (.hsi-rvations. generally speaking, already made as to free- 
 hold estates, apply to cojjyholds. -And now by statute * 
 j.rnvision has been made for converting copyholds into 
 freeholds, and either the co})yholder or the lord may now, 
 after an admittance, taking place on or after 1st of July 
 1853, compel the other to enfranchise, so that, in due 
 time, the copyhold tenure will be altogether extinguished, 
 but the tenant cannot require enfranchisement until after 
 payment of the fine and fees. The enfranchisement will 
 not affect the right of either party to the mines and 
 minerals in the lands enfranchised, or in any other lands, 
 and the tenant will still be entitled to his former com- 
 monable rights, although he has obtained the freehold of 
 his land. AVhere heiiots are, by custom, payable to the 
 lord in respect of any freehold or customaiy land, at any 
 time after any such heriot should be due (on or after the 
 1st of July 1853), power was given to the lord, or the 
 tenant, to require and compel the extinguishment of all 
 claim to heriots, and the enfranchisement of the land in 
 the same way as if the land were copyhold. The statute, 
 of course, contauis full provisions for assessing the com- 
 pensation or pmchase monies. I must, however, refer 
 you to the Act for the various important provisions in it. 
 If, as lord of the manor, you are about to enfranchise 
 other men's copyholds, or, as a copyholder, to obtain 
 the enfranchisement of your own, you should peruse the 
 Act itself 
 
 * 15 & IG Vict., c. 51, and later statutes.
 
 wife's rights in husband's property. 67 
 
 LETTEE XL 
 
 I NOW propose to call your attention to your Wife's 
 Eights in your Property. Your marriage having taken 
 place since the 1st January 1834, your wife will find her 
 ancient right to dower out of your estates of inheritance 
 both enlarged and ciu-tailed by recent legislation. She 
 is no longer hampered by former distinctions between 
 legal and equitable estates ; but will be entitled to her 
 dower when the whole legal fee is vested in you, or you 
 have (whether wholly equitable, or j)artly legal, or partly 
 equitable) what is equal to an estate of inheritance, so 
 that if you were to contract to buy an estate, your wife, 
 as between you and your heirs, at yom^ death, would be 
 entitled to dower. On the other hand, the wife's dower 
 is placed wholly in the power of the husband. His ab- 
 solute disposition in his hfetime, or by his will, excludes 
 her altogether. So his contracts and charges in his life- 
 time, or by his will, will bind her, and he may, by the 
 deed conveying an estate to him, cause it to be declared 
 that his widow shall not be entitled to dower out of such 
 land, for it is not necessary that he himself should exe- 
 cute the deed, or he may bar her right by his declaration 
 in any other deed, or in his will, either generally or par- 
 tially. If you give your wife any property by your will, 
 pray take the trouble to state whether you mean it to be 
 in bar of dower or not. Such a precaution may prevent a 
 lawsuit. As to your personal estate undisposed of at your 
 death, of course you know that if there is no issue of the
 
 68 husband's rights in 
 
 nian-iafrc, your widow will take half of it, and if there is, 
 oue-third only. 
 
 Now, as to your rights in your wife's property. Upon 
 your marriage, you take in effect, for the joint lives of 
 yourself and your wife, all her real estates. If you have 
 i.ssue born alive, you will become tenant by the curtesy 
 initiate, as it is termed, of the parts of which she has the 
 inheritance, and upon her death, in your lifetime, your 
 estate, by the curtesy, wiU take effect for your life. In 
 effect from the birth of a live child, you are tenant for 
 life of the property. But there is reason to doubt whe- 
 ther this right by curtesy extends to estates which have 
 descended to your wife. This depends upon the legisla- 
 tive alteration in the law of descent, with which I will 
 not perplex you. Her chattels real — that is, leases — you 
 can dispose of as you think proper. If you do not dis- 
 pose of them in yom- lifetime, they will survive to her, 
 but a partial disposition of them Ijy you in your lifetime 
 would bind her. You cannot, however, give them away 
 from her by wiU. If you survive her, youi' right to them 
 would be absolute. If even her interest in a chattel real 
 be reversionary or contingent only, yet you may sell it, for 
 it has been decided as clear that the wife's contingent 
 legal interest in a term may be sold by the husband, 
 and that there is no difference between the legal interests 
 and the trusts of the term, and therefore your right to 
 sell would prevaO, although the legal interest in the lease 
 was in trustees, and your wife had only a reversionary or 
 contingent interest. Whatever you can possess yourself 
 of, or, as the law terms it, reduce into possession, and 
 actually do so, will be your own ; for example, if she 
 have any stock standing in her name, you can transfer it 
 into your own name, or into any other person's. Ready 
 money, plate, furniture, jewels, and the like, all vest in
 
 HIS "wtfe's property. 69 
 
 you without any act on your part, and you can dispose 
 of them as you think proper ; they are personal chattels 
 in possession. Plate deposited at a banker's would, in 
 like manner, belong to you. But to prevent any ques- 
 tion if there is any balance in her name at a banker's, 
 and you wish to make it your own, you had better j^lace 
 it at once, as you have a right to do, in your own name. 
 If any debts are owing to her, you can recover them, and 
 a payment of them to her after the marriage would not 
 bind you. If your wife is entitled to any chose in action, 
 as it is called, that is, personal property not in possession, 
 you must wait till it falls into possession, or if you assign 
 it, and she survives you before it falls into possession, 
 your assignment will not bind her ; the property will 
 survive to her, and you cannot dispose of it by your 
 will. 
 
 If there is any personal property in the names of trus- 
 tees in which your wife is entitled to a present interest, 
 but which you cannot obtain without the order of a court 
 of equity, she may, if not sufficiently provided for, claim a 
 settlement out of it for herself and her children, and you 
 would take the surplus, and she might herself resort to 
 the Court in order to obtain a settlement out of the fund. 
 If any further personal fortune come to her in the names 
 of trustees, she may, in like manner, claim a settlement 
 out of it, or a fm-ther settlement, even if one was made 
 on your marriage, unless it amounted to a purchase by 
 you of all yom- wife's future acquisitions. The propor- 
 tion of the fund to be settled on the wife and children 
 in these cases must depend on the position and circum- 
 stances of herself and her husband, but the courts are 
 inclined to behave with liberality towards her, and, in 
 extreme cases, would even settle the whole of the fund 
 on her. But she may waive her equity to a settlement
 
 70 HUSBAND AND WIFE S POWER 
 
 Upon a ]irivate examination l>y tlu' Court apart from her 
 husband. 
 
 If your wife is tenant for life, or in fee of an estate, 
 she and you can, by deed acknowledged by her, as re- 
 quired by Act of Parliament * sell or dispose of, or settle 
 it a.s you both think proper ; and if she is tenant in tail, 
 you may together bar the estate tail, and remainders 
 over, and acquire and dispose of the fee-simple as you 
 choose ; Vnit she is to acknowledge the deed, which must 
 be enroUed, and she must be examined separately as to 
 her consent, her age, and capacity to understand the act 
 she is performing. She may, ])y deed acknowledged by 
 her, with your concurrence, dispose of any other interests 
 in land, and destroy or release any powers given to her. 
 And, in certain cases of incapacity on the part of her 
 husband to execute a deed, &c., or where they live separate 
 by nmtual consent, or by sentence of divorce, the Court 
 of Common Pleas is authorised to dispense with the hus- 
 band's concurrence in the dispositionof the wife's property. 
 
 I must yet give you some information about the 
 rights of property in married women. Both real and 
 personal estate may be settled upon a woman for her 
 separate use, so as wholly to exclude any right of the hus- 
 band, and such a provision generally enables the woman, 
 although married, to dispose of it by alienation ; but 
 this may be, and frequently is, guarded against by an 
 express clause against anticipation, Avhich, during the 
 marriage, effectually prevents any alienation of the fund. 
 A -snfe having a separate estate cannot be compelled to 
 contribute to the family wants, or to maintain her chil- 
 dren. Although a married woman with her husband 
 can convey or transfer all her interests in real property, 
 yet neither she nor her husband can deprive her of any 
 • 3 & 4 Will. IV., c. 74.
 
 OVER HEE PEOPEETY. 71 
 
 interest provided for her out of mere personal estate — 
 funded j^roperty for example — to take effect on her hus- 
 band's death. So that if you provide a portion for your 
 daughter on her marriage, and settle it on the husband 
 for life, and then on your daughter for life, and then to 
 the children, you may feel assured that your daughter 
 will benefit by your bounty on her husband's death. 
 Many attempts have been made in Parliament to take 
 away this security, and to enable the husband and wife 
 to sell her life interest, and so strip the woman of the 
 provision made for her. These attempts have hitherto 
 been successfully resisted, but a partial measure has just 
 been carried, providing that married women may, by 
 deed acknowledged in manner required hy the Act, with 
 their husband's concurrence, dispose of eveiy future or 
 reversionary interest to which the woman, or her husband 
 in her right, shall be entitled in any personal estate 
 under any instrument made after the 21st December 
 1857, and relinquish or release any power she has, or her 
 right or equity to a settlement out of any personal estate ; 
 but this power does not extend to any reversionary in- 
 terest which she is restricted from alienating, nor does it 
 enable her to dispose of any interest in personal estate 
 settled upon her hy any settlement, or agreement for a 
 settlement, made on the occasion of her marriage.^ 
 
 There is reason to fear that the next step will be an 
 attempt to repeal the exception, and make the power of 
 alienation extend to all interests. Such a power would 
 lead to constant disputes between husband and wife. 
 Upon any pressure, the husband woidd call upon her to 
 sell her reversion to assist him, and creditors knowing 
 of the settlement and of the power of alienation, would 
 refuse to show any indulgence unless the wife pledged 
 
 * 20 & 21 Vict., c. 57.
 
 72 wifk's re\t:rstonary interests. 
 
 licr reversion for lier Im.sbaiur.s debts. Many a woman, 
 anxiously ])rovicled for by an ati'ectionate father, would 
 be left penniless at her husband's death, when probably 
 lier father was no longer alive to assist her. The Act 
 must give great satisfaction to purchasers of reversions, 
 and particularly to companies expressly formed for the 
 purchase of reversionary interests. In making any pro- 
 vision for your daughter by your will, you can guard 
 against the operation of the Act by making the provision 
 inalienable. Of course the observation applies only to 
 annuities, or interests for life, or interests in reversion.
 
 NEW COUET OF DIVORCE. 73 
 
 LETTER XIL 
 
 As you desire to know something of the new law of 
 Divorce, and as it affects the rights of property, I will 
 now comply with your wish. 
 
 A new court, with high judicial officers, is created 
 to adjudicate on divorce and matrimonial causes in 
 England.* Judicial separation is a new term introduced 
 for the old divorce a mensd et thoro. Either the 
 husband or the wife may obtain a judicial separation 
 on the ground of adultery, or cruelty, or desertion with- 
 out cause for two years or upwards. And such separa- 
 tion, or restitution of conjugal rights, may be granted 
 by the Court, or by a Judge of Assize, or counsel 
 named in the commission, and appointed by him ; but 
 any order by a Judge of Assize or counsel may be re- 
 viewed by appeal to the Judge Ordinary of the Court. 
 Decrees for judicial separation may, for sufficient cause, 
 be reversed by the Court when obtained in the absence 
 of the party applying. 
 
 The Court can direct the husband to pay alimony — 
 that is, an allowance to the wife for her support ; and if 
 he do not pay it, he may be sued for necessaries sup- 
 plied to her. She becomes, after the judicial separation, 
 and whilst it continues, a fefiie sole, a single woman, 
 with respect to property of every description which she 
 
 * 20 & 21 Vict., c. 85. It is to come into operation on such daj% not 
 sooner than the 1st January 1858, as Her Majesty in Council shall 
 ajjpomt.
 
 74 JUDICIAL SEPARATION AND 
 
 may acqiiiro, or whicli may devolve upon her ; and if 
 she die intestate, it will j^o as if her husband had been 
 then dead. In case of re-coliabitation, the property will 
 continue to be her separate estate, unless some agree- 
 ment in writiiiii be made between them whilst separate. 
 During the sei)aration she may, as a single woman, enter 
 into contracts, and sue and be sued, and her husband 
 will not be liable for her debts or acts. But they may 
 execute any joint power given to them. I must post- 
 pone for a moment stating the other incidents of a 
 judicial separation, whilst I point out to you the cases 
 in which the marriage may 1)8 dissolved ; and here you 
 will obseiTe that for well-considered reasons the reme- 
 dies are not reciprocal. The hu.sband may obtain a 
 divorce dissolving the marriage upon the simple fact of 
 Ills wife's adultery. The wife can obtain such a divorce 
 only where the husband has been guilty of incestuous 
 adultery, or of bigamy with adultery, or of rape, or of 
 foul crimes — for which I must refer you to the statute, 
 and the insertion of which I endeavoured in vain to 
 keep out of the statute — or of adulteiy coupled with such 
 cruelty as would have entitled her to a divorce a mensci 
 et thoro, or of adultery coupled with desertion, without 
 reasonable excuse, for two years or upwards. If the 
 case is proved, and the Court shall not find that the 
 petitioner has been m any manner accessory to or con- 
 niving at the adultery of the other party to the marriage, 
 or has condoned (or forgiven) the adultery, or that there 
 is collusion with either of the respondents, the mar- 
 riage is to be dissolved by decree. But the Court is not 
 bound to pronounce such decree (observe, it is not said 
 that the Court may not) if it shall find that the peti- 
 tioner has, during the marriage, been guilty of adultery, 
 or of unreasonable delay in seeking redress, or of cruelty
 
 DIVORCES BETWEEN HUSBAND AND WIFE. 75 
 
 towards the other j^arty, or has deserted or wilfully 
 separated himself or herself from the other party before 
 the adultery complained of, and without reasonable 
 excuse, or of such wilful neglect or misconduct as has 
 conduced to the adultery. This provision, therefore, 
 applies equally to the husband and wife. The petition 
 will be dismissed if the petitioner has been accessory or 
 conniving at the adultery of the other party, or has 
 condoned (or forgiven) the adultery, or there is collusion 
 with either of the respondents. 
 
 The Court has power to make interim orders for pay- 
 ment of alimony for the wife, and ultimately to suspend 
 the divorce until the husband has made a proper provision 
 for her. 
 
 The husband must, it seems, in every case make the 
 alleged adulterer a co-respondent to his petition, unless 
 the Court excuse him. The wife, in applying for a 
 dissolution of the marriage, may be ordered to make the 
 person with whom the husband is alleged to have com- 
 mitted adidtery a respondent. Any of the parties may 
 insist upon having the contested matters of fact tried by 
 a jury. In every case, the petitioner must by affidavit 
 verify the facts so far as he or she is able to do so, and 
 deny collusion. And the Court may examine the peti- 
 tioner — husband or wife — on oath ; but they are not 
 bound to answer any question tending to show that he 
 or she has been guilty of adultery. 
 
 There are some important remedies applicable to all 
 cases. As to children, the Coui't may make such interim 
 or final orders as it may deem just, with respect to their 
 custody, maintenance, and education, and may direct 
 them to be made wards of the Com-t of Chancery. 
 This is interfering with a strong hand with the parental 
 rights of the father. Where the wife is the guilty
 
 76 CHILDREN : RIGHT TO MARRY AGAIN. 
 
 party, tho Court may order a settlement of her property, 
 cither in jiossession or reversion, for the benefit of the 
 innocint jiarty, and of the ehihlren of the marriage, or 
 any of them. This is as powerful an inteiference with 
 the wife's right of property. 
 
 When a decree for dissolving the marriage has become 
 final, the respective parties may marry again as if the 
 prior marriage had been dissolved by death. But no 
 clergyman of the United Chuich of England and Ireland 
 is compellable to marry any person whose foiiner mar- 
 riage has been tlissolved on the ground of his or her 
 adultery. But in case of his refusal, when but for such 
 refusal the persons would be entitled to have the service 
 ])erformed in his church or chapel, the minister is to 
 j)ermit the marriage to be solemnised in his church or 
 chapel by any other minister in holy orders entitled to 
 officiate within the diocese. The right to marrj' again 
 couJd not in my opinion have been denied to the 
 parties, although it was strongly opposed, and is stiU 
 objected to by a body of the clergy. The desire not to 
 impose upon the clergy a duty which might be contrary 
 to their conscientious feelings, induced the Legislature to 
 excuse those who objected from performing the marriage 
 ceremony, thus making a law which of course was not 
 deemed inconsistent with the laws of God or man, and 
 yet excusing the clergy who were to give effect to it 
 from obeying it — a dangerous precedent, and the 
 exemption has not given satisfaction to the class in 
 whose favom- it was introduced. The substitute pro- 
 vided, where a clergyman declines to officiate, is well 
 calculated to lead to disunion between neighbouring 
 clergymen, and ought, as it appears to me, never to have 
 found its place in our statute law. 
 
 A remedy has been provided for the heartless cases of
 
 DESEKTION OF WIFE BY HUSBAND. 77 
 
 desertion by a husband of his wife, and then returning 
 only to rob her of her miserable earnings — and this has 
 been made general, so as to include cases where the 
 deserted wife has, by her literaiy talents for example, 
 acquired considerable property during the desertion. 
 This protection covers all her earnings and property 
 acquired since the desertion, as if she were a single 
 woman, and binds her husband and his creditors, and 
 any person claiming under hiin. It is to be granted by 
 a police magistrate, if she is resident in a metropolitan 
 district, or, if she is resident in the country, by justices 
 in petty sessions, or in either case by the Court of 
 Divorce. It is requu-ed to be shown that the desertion 
 was without reasonable cause, and that she is maintain- 
 ing herself by her own industry. The order may be 
 reviewed or may be appealed from, but if disobeyed, the 
 wife may recover the specific property, and also double 
 its value. Whilst the order for protection continues, the 
 wife is to be considered as invested with the same 
 rights, and as subject to the same liabilities, as if she had 
 obtained a decree of judicial separation. 
 
 Finally, on tliis head, the action of crim. con., that 
 disgrace to the nation, has been abolished ; but, by an 
 unpardonable mistake in legislation, this is accomplished 
 in words only, whilst in effect — indeed in words equally 
 plain — a similar right of action is given to the husband, , 
 through the instrumentality of the Court, but to be tried 
 by a jury like the old action, in the case of a petition for 
 either a dissolution or a judicial separation, or even 
 limited to the object of damages only ; and the wife is 
 also to be served with the petition, unless the Court order 
 otherwise — thus really increasing the evil ; for a divorce 
 formerly coidd not in general be obtained without 
 damages had been recovered, and that circumstance was
 
 78 ACTION OF CRIM. CON. 
 
 always relied \ip(m as an excuse for the husband's 
 
 demand of a jtccuniar)^ compensation, Avhercas now he 
 
 may go for damaj^'cs, although he profess an intention 
 
 not to a.sk for a divorce. The damages, however, are 
 
 not to belong to the husband, but the Court is to direct 
 
 in what manner they are to be applied, and to dhrect 
 
 that the whole or any part shall be settled for the benefit 
 
 of the children (if any) of the marriage, or as a provision 
 
 for the maintenance of the wife, and the adulterer may 
 
 be fixed with the costs of the proceedings in the Court 
 
 of Divorce. AH were ultimately agreed that the old 
 
 action should be fliscontinued, and none proposed that 
 
 the adulterer should not pay in the shape of damages, 
 
 but many wished no part beyond the expenses to go 
 
 to the husband, but rather that it should fall into the 
 
 Consolidated Fund. The measure, as it stands, was not 
 
 passed without a severe struggle. It is not carefully 
 
 framed, and is wholly inconsistent with the general 
 
 enactment abolishing the action. A man may now 
 
 recover damages for his wife's infidelity wdthout seeking 
 
 for a divorce, but may continue to live with her upon the 
 
 damages recovered from her paramour, which may be 
 
 settled upon her or upon the children ! Even when a 
 
 divorce is obtained, the damages may be settled upon the 
 
 chilibx'n of the marriage, and the father may live with 
 
 his clnhb-en, whilst they are maintained and educated 
 
 Avith the price of their mother's dishonoui- ! It may 
 
 well 1)0 doubted whether this is an improvement of the 
 
 old law, and whether we have freed omselves from the 
 
 reproach of foreign nations — that we consider a money 
 
 payment as the proper consolation to a husband whose 
 
 wife has proved unfaitliful to him. 
 
 You are aware that, independently of the Act, husband 
 and wife may, by mutual agreement, live separate and
 
 AiiKEEMENT FOE SEPAKATION, 79 
 
 apart under a deed mtli formal stipulations as to main- 
 tenance, the contracting of debt by the wife, against 
 which some relative usually covenants to indemnify the 
 husband, and other usual stipulations ; but such a deed 
 does not in law dissolve the marriage, and the restitution 
 of marital rights would be enforced if souo;ht for. Our 
 law forbids any provision to be made, either before or 
 after the marriage, for a future sej^aration between hus- 
 band and ^\afe. It was attempted in the late Act to 
 make a separation by consent of husband and wife as 
 operative as a divorce a mensd et thoro, or what is now 
 termed a judicial separation ; but it did not succeed.
 
 80 mother's right to access, etc. to children. 
 
 LETTER XIIL 
 
 You have already seen that the Court of Divorce has 
 power over thecliiUren of the marriage where a judicial 
 separation or a divorce takes place. But this is not the 
 only instance in which a father's power over his children 
 is interfered with. A remedy is afforded by statute* 
 to mothers where their huslxmds deny them access to 
 their infant children, or withhold from them the care of 
 those under seven years of age. The authority is given 
 to the Court of Chancery, who, on the mother's petition, 
 may, as well in the father's lifetime or after his decease, 
 as against the guardian appointed by him, make such 
 order as may seem fit for the access of the mother to 
 such infants at such times, and subject to such regula- 
 tions as may be deemed just and convenient; and if such 
 infants are under seven years of age, to order them to 
 be delivered to and to remain in the custody of the 
 mother until attaining such age, subject to such regula- 
 tions as shall be deemed convenient and just ; but these 
 provisions do not extend to a mother against whom 
 a<lultery has been established. As Lord Cottenham 
 observed, the object of the Act was to protect mothers 
 from the tyranny of husbands who ill-use them; it gives 
 the Court the power of interfering when the maternal 
 feelings are tortured [by the threat to take their children 
 from them or to deny them access to them], for the pur- 
 pose of obtaining anything like an unfair advantage 
 over the mother. 
 
 • 2 & 3 Vict., c. 54.
 
 father's power as guardian. 81 
 
 Besides these statutory powers, the Court of Chancery, 
 in exercise of its own jurisdiction, will take the custody 
 of his children from a father on the ground of his im- 
 piety and irreligion, or of liis profligacy, adultery, and 
 profaneness, it being both the right and duty of the 
 Court to remove the children from the contamination 
 to which they would be exposed from such examples ; but 
 there must be sufficient property to educate and main- 
 tain them, either belonging to them, or found by their 
 friends for them, as the father cannot be compelled to 
 pay for their maintenance or education. 
 
 Subject to these powers, the father alone has a right 
 to the custody of his children, and he can by deed or 
 will appoint a guardian to them ; but although from the 
 time of Charles II.* until a recent period an infant might 
 have appointed a guardian to his children by deed or 
 will, yet it seems that he can no longer do so by will.-f* 
 The adult father's will must be executed like all other 
 wills, which will be the subject of a future Letter. The 
 mother cannot appoint a g-uardian, although she survives 
 her husband. Where it is necessary after the father's 
 death, the Court of Chancery will appoint a guardian ; 
 and the Court will, if necessary, although reluctantly, 
 interfere with the testamentary guardian appointed by 
 the father, but the mother as such has no right to inter- 
 fere with a testamentary guardian. Generally speaking, 
 the child should be brought up in the religious faith of 
 the father, but he cannot by his will regulate the faith 
 in which his child should be brought up ; the Court 
 will pay great attention to the expression of his wishes, 
 and he can exercise that power indirectly by appointing 
 a guardian of the faith which he professes. If the 
 father make no appointment of a guardian, the mother, 
 
 * 12 Charles II., c. 24. t 1 Vict, c. 26. 
 
 F
 
 82 MOTHER (JUARDIAN BY NURTURE. 
 
 afUT his tleatli. is the guanhaii hy nurture until the age 
 of fourtoen. 
 
 TheQuirn's licnch recently ordered a girl under four- 
 teen years of age, the daugliter of a deceased Protes- 
 tant fatlier. to be delivered to the mother, a Roman 
 Catholic, by tlie mistress of a Protestant school, where she 
 was provided for out of the Patriotic Fund ; and the Court 
 ri'fused, contrary to some precedents, to examine the 
 child, who Avas between ten and eleven years of age, as 
 to her religious belief, or on any other subject ; and so 
 j)()\verful was the motlier's riglit deemed, that it was 
 considered to be no objection that she intended to edu- 
 cate her child as a Ptoman Catholic, although the girl 
 had been baptised as a Protestant, and had been placed at 
 the Protestant school, upon tlie mother's application, after 
 her husband's death, and remained there for some time, 
 and had previously been to other Protestant schools as well 
 during her father's lifetime as since his death, which had 
 impressed upon her mind strong religious convictions, 
 and she refused to become a Roman Catholic. But upon 
 a small settled provision being provided by third persons 
 for the child, who was made a ward of the Court of 
 Chancery, the mother being unable to maintain her, the 
 Court replaced her at the school. The Judges in Equity 
 do not liesitate to see and examine the child, not with a 
 view to consult the child's wishes, but to ascertain what 
 religious impressions have been made upon the child's 
 mind. 
 
 Wliere a posthumous child of a Roman Catholic 
 father and mother was baptised as a Roman Catholic, 
 and his uncle and aunt (a Roman Cathohc peer and 
 his wife) were his godfather and godmother ; and the 
 mother, after her husband's death, became a Protestant, 
 and brought up her son as a Protestant until he was
 
 EELIGIOUS FAITH OF CHILDEEN. 83 
 
 nearly ten years of age, when the Eoman Catholic rela- 
 tives interfered, the Judges in Equity did not doubt 
 that if the application had been made at once it would 
 have been of course that the child should have been 
 brought up in his father's religion; but they had seen 
 him, and were satisfied that he had received strong 
 impressions adverse to his father's faith, and that to 
 disturb them would exj^ose the child to danger. The 
 mother, therefore, was left as sole guardian, and, conse- 
 quently, the boy would continue to be brought up as a 
 Protestant. You should bear in mind, that as children 
 may now lawfully be brought up in the Roman Catholic 
 faith, the same principle would have been applied if all 
 the parties had been Protestants, and the mother, after 
 her husband's death, had become a Roman Catholic, and 
 had educated her boy in that faith, which course, there- 
 fore, the Coiurt would not have disturbed. 
 
 There is, as you will have perceived, a distinction 
 between the jurisdiction upon a habeas corpus, where a 
 judge looks principally to see whether the father or 
 mother has acted towards the child cruelly or with per- 
 sonal ill-usage, as the ground upon which he can deny 
 to a father, or to a mother where she is entitled, the 
 custody of a child and the jurisdiction of a court of 
 equity, for where the child is a ward of that court, many 
 other considerations may have weight ; for example, the 
 father's acquiescence in the application of a gift to the 
 child by a third person for its maintenance and educa- 
 tion, in which case the Court may enforce his further 
 submission. 
 
 I may still mention to you, that by the Poor Law 
 Amendment Act,* every man who has married since the 
 14th of August 183-i, or shall hereafter marry a woman 
 
 * 4 & 5 Will. IV., c. 76.
 
 84 ENTUY BY FATHER AS GUARDIAN. 
 
 having any children at the time of the marriage (whether 
 K'jiitiniatc or ille;i^itiniate), is bound to maintain such 
 cliildren tui j>art of liis family until they attain the age 
 of sixteen, or until the death of their mother. An 
 atttinpt was maile, but Avas defeated, to carry this much 
 furtluT, by making a woman who survived her husband 
 liable to provide for his children by a former marriage. 
 A niairii'd woman, although having separate estate, 
 and living apart from her husband, cannot, as we have 
 seen, be compelk'd to contri])ute towards the mainte- 
 nance of the children, unless there has been a judicial 
 .sejiaration or divorce. 
 
 Lastly, I must tell you that, if you enter upon an 
 estate belonging to any of your children, you will be 
 considered as entering as his guardian, and you will be 
 accountable for the rents received by you. Therefore 
 your possession would not be deemed adverse to your 
 child's right ; and consequently, if you withheld the pos- 
 session, the child would in any view have twenty years 
 within which to recover his property from you after he 
 attained twenty-one. But indeed the Courts would not 
 pennit any guardian entering as such afterwards to set 
 up a title by non-claim against his ward. A person in 
 possession of an infant's estate at the death of his 
 father or other ancestor, claiming adversely, can, how- 
 ever, only be dispossessed by the common process at law.
 
 CAUTIONS ON LOANS ON MORTGAGE. 85 
 
 LETTER XIV. 
 
 Mortgages are the next subject to whicli I shall 
 direct your attention, 
 
 A mortgage is a security for money lent. The bor- 
 rower is styled the Mortgagor, the lender the Mortgagee. 
 
 If you lend money on mortgage, you should take care 
 to have a good title and property in pledge of sufficient 
 value, and a borrower of character, for, however good 
 the security, if he be a bad paymaster you will find it 
 difficult to obtain your interest regularly. The title 
 will, of course, be investigated by counsel, and you must 
 depend on the judgment of others as to value. In 
 several instances, solicitors have had to indemnify their 
 clients for having lent their money on insufficient 
 security. But this can hardly happen except in small 
 loans on houses, or so-called ground-rents, or the like. 
 A solicitor is, of course, not answerable for the value of 
 the estate pledged, unless he render himself liable by his 
 conduct, for it does not fall within his province to value 
 estates. You are not likely to advance money on mort- 
 gage to speculative builders, or the holders of house 
 property. It is not usual to lend more than two-thirds 
 of the value of the property. Never advance money 
 upon a second mortgage that is subject to a prior mort- 
 gage in another person. It is not a satisfactory security, 
 and you may be compelled to redeem or pay off' the first 
 mortgage, or actually lose your own security. If you do 
 advance money on mortgage of buildings, take care to 
 have them insured in your name. If, however, they are
 
 SI', FORGERY OF MORTGAGE DEEDS. 
 
 k'a.sc'hi)ltl, you should a.scertaiu that such an assurance, 
 if the only ono, would not be a forfeiture of the lease 
 umltT which tiny arc held. 
 
 Pay till' money yourself to the mortgagee, and see the 
 deed executed. Do not pay the money to the person 
 bringing the deed, although executed and the receipt 
 signed, unless by the written authority of the borrower ; 
 for the mere possession of the deed by the solicitor or 
 agent, will give him no authority to receive the money. 
 It is not safe in all cases to rely on mortgages a[»parently 
 duly executed, and brought to you by the regular man 
 of l)usiness of the borrower, to whom it has been de- 
 livered by your solicitor to get it executed by his client 
 the bon-ower. Unhappily, I have known more instances 
 than one of forged mortgages having been delivered to 
 an unsu.specting lender. In one case, the lender and his 
 solicitors were assembled, waiting for the mortgage deed, 
 which was to be brought duly executed by the solicitor 
 of the suppo.sed borrower, who was confined to his bed 
 by illness; and at length tired with waiting, a messenger 
 was just being despatched to the supposed borrower's 
 house, when the solicitor, who had evidently been delayed 
 in concocting the forged deed and its attestations, arrived 
 with the deed executed and attested, and received the 
 money. He escaped detection at the moment, but 
 ultimately left the countiy. The lender, of course, lost 
 his money. Tliese instances wUl make you cautious, but 
 wiU not lead you to suspect men of character and reputa- 
 tion. It is advisable to keep your own securities in your 
 own deed-box at home, for the same jjersons who forged 
 mortgages forged also transfers of mortgages, and de- 
 livered up the deods to the new lender; an act which 
 was facilitated by the possession of the mortgage deed. 
 The forger, of course, continued to pay interest regularly
 
 CAUTIONS ON BOKEOWING ON MOETGAGE. 87 
 
 to the first lender. In one remarkable case the agent 
 acted for two persons, and he actually mortgaged the 
 property of one to the other by a forged instrument, and 
 although he and these two persons frequently dined to- 
 gether, the forgery was not discovered till the guilty 
 party was wholly ruined. The lender did not like to 
 talk about the mortgage, and was not called upon to do 
 so, as the interest was regularly paid by the agent, and 
 the supposed borrower was, of course, silent on the sub- 
 ject. Upon a mortgage the title is, of course, investi- 
 gated by the lender's counsel, and the mortgage is pre- 
 pared by his solicitor, but all the expenses are paid by 
 the borrower. 
 
 But you may borrow as well as lend. As a borrower, 
 bear in mind that you will have to pay all the expenses 
 of the loan, and that in case you do not pay the interest 
 regularly, the mortgagee may compel payment of the 
 principal and interest. You will always be in danger of 
 the mortgagee calling in the money, and thus putting 
 you to the expense of obtaining money elsewhere to pay 
 him off, and of making a transfer of the mortgage to the 
 new lender. You should inquire whether the lender is 
 likely to want his money, or is in the habit of changing 
 his securities. To avoid this danger, it is sometimes 
 stipulated that the lender shall not call in the money for 
 a given number of years, provided the interest is regu- 
 larly paid ; but in that case the lender will probably 
 require an obligation from the borrower not to pay the 
 mortgage off within that period. 
 
 The statutes against usuiy, which prohibited the 
 reserving or taking more interest than £5 per cent 
 per annum, are repealed, so that you may take for your 
 money whatever amount of interest you can get. It is 
 useless now to consider the policy of the measure. Theo-
 
 88 INTEREST, 
 
 retiailly no one can deny that the rate of interest should 
 he left to hv retaliated by the lender and borrower, but 
 exj)erienee convinced many j)er.s(ni.s that a total repeal 
 of the usuiy laws was not a safe measure. Wliilst the 
 prohibitittn lasted, 5 per cent was popularly called the 
 natural rate of interest. Habit and the general market 
 rate of interest still induce capitalists to advance money 
 on j^ood mortgages, as a penuanent investment at 5 per 
 cent Under the old law you could not prospectively 
 make uiterest principal, so as to carry interest ; therefore 
 a stipidation in a mortgage-deed that every quarter's 
 interest in an-ear should become principal, and carry 
 interest, would have been void. But as there is no 
 restriction on the amount of interest which may be re- 
 ceived, such a stipulation would, I suppose, now be held 
 valid. But a liberal lender would hardly require such a 
 pro\'ision, and none but a needy borrower would submit 
 to it. The relation of mortgagor and mortgagee should 
 always be one of fair dealing and confidence. After the 
 interest has become due, it of course may, by a regular 
 charge of the mortgagor, be converted into principal, and 
 made to carry interest. And this has been often done 
 when a considerable arrear of interest had accrued. 
 
 A day is always named for payment of the principal, 
 and in the mean time for payment of the interest. 
 If either the interest or the principal be not paid at the 
 day, the mortgagee (the lender) may at any time recover 
 it, but the mortgagor (the borrower) cannot compel the 
 mortgagee to receive it witliout first giving him six 
 calendar months' notice of his intention to pay it off. 
 If he make a regular tender of the money on the day on 
 which the notice expires, although the lender refuse to 
 accept it, yet interest will no longer nm : but to stop 
 the interest, a regular tender must be made on the pre- 
 cise day.
 
 POWEE OF MOETGAGOE AND OF M0RTGAC4EE. 89 
 
 In advancing money on mortgage, the estate is regu- 
 larly transferred by conveyance to the lender, but is 
 made redeemable on repayment of the money and inte- 
 rest. The mortgagee takes the absolute interest in the 
 estate at law ; but in equity the mortgagor is still owner 
 of the estate to all intents and purposes. He may settle 
 or devise the estate in the same manner as if he had not 
 mortgaged it ; and if he devise it before the mortgage, 
 his prior disposition will, subject to the mortgage, still 
 remain good, nor will a re-conveyance to him upon pay- 
 ing off the money affect the validity of the will. 
 
 In mortgages of copyholds it is not usual for the mort- 
 gagee to be admitted. The owner may devise the estate 
 whether the mortgagee is or is not admitted. Formerly 
 a copyholder could not devise his estate without a sur- 
 render to his will ; but this is now rendered mmecessary, 
 as I shall hereafter explain to you. 
 
 So the mortgagor may sell the estate, and pay off 
 the mortgage out of the purchase-money ; or he may 
 sell it subject to the mortgage ; but a purchaser in the 
 latter case should either require the mortgagee's concur- 
 rence, or should be satisfied that the account stated by 
 the mortgagor alone is correct, and should give notice to 
 the mortgagee of the sale immediately after it is com- 
 pleted. A man buying an estate subject to a mortgage 
 is without any express stipulation bound to indemnify 
 the seller against the debt. 
 
 A mortgagor cannot after a mortgage make a lease 
 binding on the mortgagee. The mortgagee may at any 
 time evict a tenant holding under such a lease ; but he 
 may absolutely confirm it in regular form, or he may 
 bind himself partially by his acts ; for examjDle, receiving 
 the rent from the lessee, in which case the latter would 
 be considered tenant from year to year under the mort- 
 gagee, and could not be evicted without a regular notice
 
 90 POWERS OF MORTGAGEE. 
 
 to (piit, l>ut tlio loase woiiM not be confirmed. The 
 remedy of the tenant on eviction would be against the 
 mortjiuiior. 
 
 It is always stiimlated in mortgages, that until default 
 shall be made in payment of the money the mortgagor 
 shall quietly enjoy the estate. After default has been 
 made the mortgagee may obtain possession of the estate, 
 but although he becomes owner of the estate at law, yet 
 he cannot without an abi^olutc necessity nuike a lease of 
 the lands which will biml the mortgagor; and as in 
 these cases the ])ro])erty is considered a mere security for 
 the debt which belongs to the })ersonal estate, although 
 the estate descend to the heir of the mortgagee, yet he 
 will be a mere trustee for the executor. In order to pre- 
 vent the difHculty of oljtaining a conveyance from an 
 heir-at-law, who may be an infant, or a married woman, 
 or may be out of the kingdom, the mortgagee may 
 expressly devise the estates vested in him by way of 
 mortgage to trustees, with a declaration that the mort- 
 gage-money shall be considered as personal estate. If a 
 mortgagee in possession wish the estate to vest in his 
 devisee for his own benefit, he should expressly devise it 
 to him for his own use, and not trust to its passing imder 
 a general devise of all his real estate ; but it would still 
 be liable to the mortgagor's right to redeem, although 
 the money would belong to the devisee. Ample pro- 
 vision, however, is now made for obtaining a transfer of 
 mortgage and trust-estates from representatives or per- 
 sons incompetent to act.* 
 
 A mortgagor, even after default in payment of the 
 money, is not liable to account to the mortgagee for the 
 rents duruig the time which he has been suffered to 
 remain in possession. 
 
 * 13 & 11 Vict., c. GO ; lo & 16 Vict.,c. 55.
 
 VOTING : MOETGAGEE IN POSSESSION. 91 
 
 A mortgagor may vote at an election notwitlistanding 
 the mortgage, unless the mortgagee be in the actual pos- 
 session or receipt of the rents of the estate, in which 
 case the latter is entitled to vote ; * but the mortgagor, 
 although in possession, must be entitled to a sufficient 
 qualijfication beyond the interest payable on the mort- 
 gage. 
 
 A mortgagee can take possession if he please, but he 
 should either leave the mortgagor in possession or take 
 possession himself; for if he give notice to the tenants 
 not to pay their rents to the mortgagor, and do not him- 
 self receive them, and any loss is sustained in conse- 
 quence of the notice, he will be liable to make it good. 
 
 A mortgagee in possession should keep regular accounts, 
 for he is liable to account to the mortgagor for the jjro- 
 fits which he has, or might have, received, without fraud 
 or wilful neglect : he is answerable for wilful neglect, 
 although not guilty of actual fraud ; for instance, if the 
 mortgagee turns out a sufficient tenant, and having 
 notice that the estate was under-let, takes a new tenant, 
 another substantial person offering more. But in gene- 
 ral, if the mortgagor knows that the estate is under-let, 
 he ought to give notice of that circumstance to the 
 mortgagee, and to afford his advice and aid for the pur- 
 pose of making the estate as productive as possible. A 
 mortgagee in possession may, if necessary, appoint a 
 bailiff and receiver, and charge the estate with their 
 salaries ; but if he choose to take the trouble on himself 
 he cannot charge for it, not even formerly, if the mort- 
 gagor agreed to make him any allowance, for that would 
 have been to give him something beyond his principal 
 and interest ; but now such an agreement would proba- 
 
 * 6 Vict., c.'lS. For the property qualification of a member, see 1 & 
 2 Vict, c. 48.
 
 92 WASTE BY MORTGAGEE — ADVOWSON. 
 
 l)ly l)C Ik'M to 111' binding. A mortgagee may always 
 stipulate tor a icrcivfr on his original loan to be paid by 
 the mortgagor. 
 
 The mortgagee cannot justify committing waste on the 
 estate unless the security is defective, and in that case the 
 waste must be productive of money, which must be 
 apj)lied in relief of the estate ; nor can he enter upon any 
 speculation at the risk of the mortgagor ; therefore, if he 
 ojieu a mine or quarry, he must do it at his oyrti risk, and 
 yet the profit from it would be brought into the account 
 jigainst him. He need only keep the estate in necessary 
 repair, and of course he can re])ay himself out of the 
 rents ; and if he increase the interest in the estate, as by 
 renewing the lives, where the estate is held upon lives, 
 he will be entitled to be repaid the sum advanced, with 
 interest, which will be considered as an additional charge 
 on the estate. 
 
 Generally speaking, a mortgagee of an advowson can- 
 not present to it, because it would be illegal to sell the 
 presentation. The mortgagee, therefore, as he cannot 
 bring the presentation into the account, must present the 
 nominee of the mortgagor. But where the mortgage is 
 absolute, equity will not restrain the mortgagee from 
 presenting, unless the mortgagor will pay off the mort- 
 gage-money at a short day ; for it may be that the 
 mortgagor will not redeem, and in that case the presenta- 
 tion belongs to the mortgagee. 
 
 It has always been laid down that neither the mort- 
 gagor nor the mortgagee can, by any adverse act, bar the 
 right of the other. But it was decided in the great case 
 of Lord Cholmondeley v. Lord Clinton, that twenty years' 
 adverse possession, by a person claiming the equity of 
 redemption, will bar the rightful owner. If a man with 
 a bad title make a mortgage, and afterwards, by any
 
 MOETGAGOE BAERED BY TIME. 93 
 
 means, acquire a good title, he must confirm the mort- 
 gage. So if he obtain an increased interest in the estate, 
 as a renewal of a lease, it will be considered as a graft 
 upon the original stock, and be liable to the mortgage. 
 And, by a parity of reason, if the mortgagee acquire a 
 renewed interest in the mortgaged estate, it will, subject 
 to the mortgage, be in trust for the mortgagor. 
 
 Now, by statute law,* if a mortgagee is allowed to 
 remain twenty years in possession, or in receipt of the 
 rents, without account, the mortgagor is barred of all his 
 right in the estate, for after that period equity cannot 
 assist hmi in redeeming the estate ; and there is no 
 saving for disabilities, although before the late Act equity, 
 in analogy to the law, allowed ten years after the removal 
 of the disability, where the mortgagor was under any 
 disability to prosecute his claim. 
 
 But if in the mean time an acknowledgment of the 
 title of the mortgagor, or of his right of redemption, 
 shall have been given to the mortgagor, or some person 
 claiming his estate, or to his agent, signed by the mort- 
 gagee or the person claiming through him, or there has 
 been a payment of any part of the money or interest,t 
 then the time will not run on, but still the suit must be 
 brought within twenty years next after the last of such 
 acknowledgments, or the last of such payments (as the 
 case may he). There are special provisions where there 
 are several mortgagors or mortiragees in regard to ae- 
 knowledgments. The statute law has made this differ- 
 ence, that that which before the statute was a sufficient 
 declaration by word of mouth, must now be in writing, 
 and signed by the mortgagee, or the person clauning 
 under him. The acknowledgment may be made out by 
 
 * 3 & 4 Will. IV., c. 27 ; 7 Will. IV., and 1 Vict., c. 28. 
 t 7 Will. IV., and 1 Vict., c. 28.
 
 94 MORTOACE BAERED BY TIME. 
 
 letters or deeds, Init a mere transfer of a mortgage, sub- 
 ject to the e(|uity of redemiition, will not amount to an 
 acknowledgment. 
 
 On the other hand, if the mortgagor is allowed to re- 
 main twenty years in possession Avithout any acknow- 
 ledgment or payment of any })art of the principal or 
 interest, the mortgagee will lose his security. No action 
 or suit can be brought to recover any money secured by 
 mortgage but within twenty years next after a piesent 
 right to receive it has accrued to some person capable of 
 uivinii' a discharge for it, unless in the mean time some 
 part of the money or interest has been paid, or some 
 acknowledgment of the right to it shall be given in 
 wilting, signed by the mortgagor or his agent, to the 
 mortgagee or his agent ; the time will run from the last 
 of the payments or acknowledgments, if more than one. 
 And there is, it seems, the same restriction upon an 
 action or suit to recover the land as there is upon • an 
 action or suit for the recovery of the money. Whether, 
 therefore, you are a mortgagor or a mortgagee, you must 
 be vigilant, or you may lose your property. 
 
 As you are tenant for life under your settlement, and 
 happen also to have vested in you a mortgage binding 
 the inheritance, your right to the money secured by the 
 mortgage -will not be aflfected by time running against 
 you during your life, for yours is the hand both to 
 receive and pay. 
 
 K a mortgagee wUl not re-convey upon payment of 
 the principal and interest, and costs, and the right to 
 redeem is still open, the mortgagor may by a bill in 
 equity compel a redemption. On the other hand, if the 
 mortgagee is desirous either to obtain back his money, or 
 to have the estate discharged of any right of redemption, 
 he may file a bill against the mortgagor for what is
 
 FOEECLOSUEE. — SALE. — SECOND MOETGAGE. 95 
 
 termed n foreclosure, and the mortgagor will be decreed 
 to pay the money and interest at a day named, or to 
 stand foreclosed of all right to redeem the estate. After 
 such a decree is perfected, if default is made in pay- 
 ment of the money, the mortgagee becomes absolute 
 owner of the estate. But equity will be anxious not to 
 hastily foreclose the mortgagor ; and therefore, under 
 proper circumstances, the time limited for payment of 
 the money will be enlarged more than once, if there is a 
 fau- prospect of the mortgagor being able to repay the 
 money. This is frequently a great hardship on the 
 mortgagee, but the rule is not extended to a bill by 
 the mortgagor for redemption ; the time there will 
 not be enlarged. 
 
 A more effectual remedy for a mortgagee is now fur- 
 nished by statute.* The Court may, upon the request 
 of the mortgagee, or of any subsequent encumbrancer, or 
 of the mortgagor, direct a sale of the property instead of 
 a foreclosure. But if any other party apply except the 
 mortgagee, his consent must he obtained, or the party 
 applying must deposit in Court a reasonable sum, to be 
 fixed by the Court, for the purpose of securing the per- 
 formance of such terms as the Court may impose on such 
 party. If the mortgagee in such a suit is allowed to bid 
 for the estate, he will not be allowed to conduct the sale. 
 
 If a man make a second mortgage without giving the 
 second mortgagee notice of the first mortgage, or if he 
 make a mortgage after having otherwise encumbered the 
 estate, and do not, within six months after notice given 
 to him by the mortgagee, pay ofi" the encumbrances, he 
 will, by a legislative provision, be barred of all equity of 
 redemption, or right to redeem the estate.-f 
 
 A mortgage is assignable, and the concurrence of the 
 
 * 15 & 16 Vict, c. 86. t 4 & 5 Will. III., c. 16.
 
 OG TRANSFER OF MORTGAGE. — POWER OF SALE. 
 
 iuortf;a!ior in tlie transfer is not actually necessary. But 
 I advise you never to accept such a transfer without the 
 mortgagor's concurrence, for an assignee will take subject 
 to the real state of the account between the mortgagor 
 ami mortgagee, and therefore he should be well satisfied 
 that the account is correct, if he dispense with the mort- 
 gagor's concurrence. The mortgagee alone cannot charge 
 more money, he cannot increase the principal, he cannot 
 make the interest principal. An assignee of a mortgage 
 is entitled to the whole sum due, although he buy it at 
 a less price. If a mortgagee is in possession, he should 
 be careful to whom he assigns his mortgage without the 
 concurrence of the mortgagor, for it has been considered 
 that, if the assignee of the mortgage were insolvent, the 
 original mortgagee would be answerable for the rents re- 
 ceived, as well after as before he assioned his mortgage. 
 
 I must now draw your attention to the modem mode of 
 introducing into mortgages a power to the mortgagee to 
 sell, in case of default, for a certain specified time, to pay 
 either the interest or principal secured. This is an im- 
 portant security to the mortgagee, as it enables him, in the 
 event provided for, absolutely to sell the property, and to 
 pay himself his piincipal, interest, and costs, -without having 
 recourse to a court of equity or a court of law to get the 
 money repaid, or the estate itself secured to him ; but as he 
 is in the nature of a trustee of the power of sale, he cannot 
 himself buy the estate, nor can any one for him at the 
 sale, although by auction. This power, if the deed so 
 provide, may be exercised by the mortgagee without 
 the mortgagor's concurrence : and if the mortgao-ee act 
 fairly, he will be the person to decide upon the time and 
 the conditions of sale ; but he should not fix upon an 
 milikely day to attract bidders for the former, nor intro-
 
 MOETGAGES PAYABLE BY HEIR OR DEVISEE. 97 
 
 duce unusual stipulations in the latter. A mortgagee 
 who sells imder the power, cannot charge more than the 
 expenses usually allowed to a trustee, and this even where 
 he is an auctioneer, and he or the firm to which he be- 
 longs sells the estate by auction. Before proceeding to 
 a sale the mortgagee should carefully ascertain that the 
 event has taken place, upon the happening of which he 
 has a right to sell. 
 
 If trustees have a simple power to mortgage, they 
 cannot give to a mortgagee a power to sell the property. 
 
 Lastly, I must inform you, that the law has lately been 
 altered as to the right of your heir or devisee to have a 
 mortgage on your estate paid ofi" out of yom* personal 
 estate ;* for if you do not by your will or other docu- 
 ment signify a contrary or other intention, your heir or 
 devisee will not be entitled to have the mortgage paid 
 out of your personal estate, or any other real estate of 
 yours. This, however, does not affect the mortgagee. 
 Your heir or devisee will still be entitled to requn"e the 
 purchase-money to be paid out of your personal estate, 
 for any estate which you have contracted, but not paid 
 for at the time of your death. 
 
 * 17 & 18 Vict., c. 113, ajiplies only to persons dying after 31st Decem- 
 ber 1854, and does not api^ly to any will or document made before 1st 
 January 1855.
 
 98 LEASES TO BE BY DEED. 
 
 LETTER XV. 
 
 It now comes in order to give yon a few instructions 
 as to Leases. "WTiat I have to say on this head will lie in 
 a narrow compass. 
 
 Leases not exceedincr three years from the time of 
 making them, whereupon the reserved rent amounts to 
 two-thirds of the improved value, may be granted by 
 parol, or word of mouth ; but all other leases must be in 
 writing, according to the provisions of the Statute of 
 Frauds which I have before mentioned, and so must an 
 a/jreement for a lease, however .«jhort the term ; although 
 here, as in the ease of purchases, equity vnW, in some 
 instances, for which I refer you to Letter VII., enforce 
 even a parol agreement to grant a lease. To this, how- 
 ever, a party should not trust. 
 
 By a recent statute,* leases required by law to be in 
 writing are made void at law unless made by deed. 
 Therefore, as with the exception of lea.ses not exceeding 
 three years at a rent equal to two-thirds of the value, all 
 leases must have been made in writing, noiv they must be 
 made by deed; and assignments and surrenders of leases 
 (not being of a copyhold interest) are equally required to 
 be by deed. There are exceptions which would only puzzle 
 you if I were to attempt to explain them. It will be 
 sufficient for you to know that you cannot safely grant 
 or accept a lease, or an assigimient, or surrender of one, 
 without a deed. 
 
 This alteration of the law has led to much embarrass- 
 ♦ 8 & 9 Vict., c. 106.
 
 AGEEEMENT FOR A LEASE. 99 
 
 ment. The judges felt the difficulty of holding a lease 
 in writing, but not by deed, to be altogether void, and 
 consequently decided that, although such a lease is void 
 under the statute, yet it so far regulates the holding, that 
 it creates a tenancy from year to year, and terminable by 
 half a year's notice ; and if the tenure endure for the 
 term attempted to be created by the void lease, the 
 tenant may be evicted at the end of the term without any 
 notice to quit. 
 
 If an agi'eement, not by deed, for a lease for a term 
 of years, to begin at a future day, were made, and it 
 were to be construed to be a lease, it would of course 
 be void under the statute, and the intended tenant could 
 not force the landlord to give him possession at the 
 time when the lease was to commence, for he would be 
 entitled to possession only on a tenancy for the years 
 agreed upon, and that tenancy never commenced; but it 
 was said that the party might proceed upon the agreement 
 to grant such a lease. This will show you the difficulty 
 which may arise upon an informal agreement since the 
 statute ; for before the statute, if the writing, not under 
 seal, was held to be a lease and not an agTcement, still it 
 was in favour of the intention, as collected from the in- 
 strument, and it did operate as a lease ; but now in a like 
 case, the intention, as collected, does not create the lease, 
 but destroys the instrument. 
 
 An agreement for a lease, like an agreement for pur- 
 chase, must contain the names of the parties, the consider- 
 ation — viz. the rent, and also the property to be demised, 
 and for what term. The parties must sign the agreement 
 by themselves or their agents, in Kke manner as an 
 agreement for a purchase. And the caution which I 
 before gave you, in regard to wiiting letters about the 
 sale or purchase of an estate, applies equally to leases. I
 
 100 AGREEMENT FOR A LEASE. 
 
 must observe, that notliing can be added to an agreement 
 of tliis kind l)y parol or verbal evidence : you cannot, for 
 instance, if the agreement is silent on that head, show 
 that the tenant agreed verbally to pay the land-tax. 
 Tlie parties must stand or fall by the written agreement. 
 Therefore, whatever the tenns are upon which you agree, 
 you must reduce them to ■wiiting. 
 
 If you should ever be imder the necessity of entering 
 ■into an agreement to grant a lease, without the assistance 
 of your solicitor, insert an express declaration that it is 
 meant to be an agreement, and not an actual lease. It 
 has frequently happened, that what was intended by the 
 parties as an agreement only, has been construed to be a 
 lease, by which means the tenant has evaded the condi- 
 tions which would have been imposed on him if a regular 
 lease had been granted. 
 
 The law is not altered by the recent statute to which 
 I have before referred.* ^Vhat before the statute would 
 have been a lease, although in form an agreement, will 
 still be so construed, although, if not made by deed, the 
 consequence may be, as I have already sho^ni to you, 
 that it will be void at law. 
 
 It is highly desirable that agreements for leases should 
 contain a minute of the covenants to be entered into by 
 the tenant. Disputes frequently arise as to the covenants 
 to which the landlord is entitled. If you wish your 
 tenant not to part with a lease without your consent, you 
 should stipulate by the agreement that a proper clause 
 for that purpose shall be contained in the lease, because 
 you cannot insist upon such a restraint imless it is bar- 
 gained for. 
 
 If you agi-ee to grant a building-lease, the tenant must 
 engage by the lease to insure the property, although the 
 
 * 8 & 9 Vict., c. 106.
 
 INSURANCE : OPTION TO RENEW. 101 
 
 agreement was silent on that head ; but the rule is other- 
 wise as to tenants at a full rent, or, as we term it, a rack- 
 rent. K, therefore, you mean that a tenant at rack-rent 
 shall insure at his own costs, you must make him agree 
 to do so by the contract. If you omit this, the lease 
 must be so framed as to exempt him from making good 
 accidents by fire. But even in this case you are not 
 bound to insure ; and although the house should be 
 burned down, yet the tenant must continue to pay the 
 rent : so that each bears his burden ; you lose your 
 house, and the tenant loses his rent during the term. 
 If, however, you have insured, although not bound to do 
 so, and received the money, you cannot compel payment 
 of the rent if you decline to lay out the money in re- 
 building. It is material, however, to observe, that what- 
 ever may have been the agreement, unless the tenant is 
 exempted by the lease from making good accidents by 
 fire, he must, under the common covenants to repair, 
 rebuild the house if it is burned down. 
 
 If you agree to grant a man a lease, and he after- 
 wards says that he is merely a trustee for an insolvent 
 who claims the lease, you are not bound to grant it. 
 
 It may be useful to state that if you grant, or even 
 agree to grant, a lease, to hold for seven or fourteen, or 
 any other nmnber of years, in the alternative, the option 
 to determine the lease at the end of the first term men- 
 tioned is in the tenant, and not in you ; therefore, if this 
 is not your intention, you should expressly provide by 
 the agreement, or lease, that the option shall be in you 
 as well as the tenant. 
 
 You should always, before granting a lease, consider 
 what interest you have in the estate. If you are merely 
 tenant for life, without a power of leasing, you must not 
 grant a lease beyond your own life. If you have only a
 
 102 LEASES UNDER POWERS : FINE. 
 
 jimvei' to grant a lease, which is the case with every man 
 wliosc property is settled on his family, you should 
 coiiuminicate that circumstance to your solicitor, and 
 furnish liiiii witli a copy of the power, because a very 
 sliuht deviation from it may render the lease void, by 
 which you may not only ruin your innocent tenant, 
 hut may, by the covenant which you must enter into 
 •with hhn, for quiet enjopnent of the land, subject 
 your estate to make good his loss in case he is evicted 
 by the person entitled to the estate after your death. 
 This has too frequently happened. A painful instance 
 occurred in the year 1778. Sir John Astley and his 
 vnfe settled her estate to certain uses, with a power of 
 leasing to Sir John. They then, under a power in the 
 settlement, gave the estate, after theu* deaths, to Lord 
 Tankerville. Sir John granted a lease under his power, 
 and died. Lord Tankerville, when he came into posses- 
 sion, took advantage of a defect in the lease, and turned 
 out the tenant, who recovered his loss out of Sir John's 
 estate, under a covenant entered into by him for quiet 
 enjoyment ; so that his property suffered severely by the 
 act of the person to whom he had joined, with his wife, 
 in giving the estate. 
 
 If you are restrained by your power from taking a 
 fine Oil granting a lease, you must not accept any sum 
 whatever from the tenant. But, although you are re- 
 quired to reserve the best rent which can be obtained, 
 yet you are not compellable to take the highest actual 
 offer for a lease provided you act bond fide, and reserve 
 a proper rent, because in the choice of a tenant there are 
 many things to be regarded besides the mere amount of 
 the rent offered. There shoidd, however, be some strong 
 pmdential reason to induce you to grant a lease to one 
 at a lower rent than is offered by another.
 
 EQUITABLE RELIEF TO A LESSEE. 103 
 
 You may exercise a power of leasing for your own 
 benefit. For this purpose you must procure some per- 
 son as your trustee, to become bound for the rent, &c. 
 For if a proj)er person is legally bound to pay the rent 
 and perform the covenants, it is unimportant to the 
 person succeeding to the estate that the beneficial in- 
 terest belongs to another. The person to whom the 
 lease is granted should execute a deed, declarmg him to 
 be a trustee for you. 
 
 I have only one other caution to give you as to leases. 
 Carefully avoid comprising in the same lease, at an entire 
 rent, property, some your own, and some over which you 
 have merely a power ; such a lease would be void as to 
 the property comprised in the power. 
 
 A court of equity will, by force of its own jurisdiction, 
 support a bond fide lease granted under a power which is 
 merely erroneous in form or ceremonies. And the Legisla- 
 ture has recently carried the right to relief much further ;* 
 for now where, in an intended exercise of a power of 
 leasing, a lease has been, or shall be granted, which, 
 by reason of any deviation from the terms of the power, 
 shall be invalid against the remainder-man, and the lessee 
 has entered under it, it is to be considered as a contract 
 for a lease, with such variations as may be necessary in 
 order to comply with the terms of the power ; but the 
 tenant cannot obtain any variation of his lease where 
 the person in remainder is willing to confirm the lease 
 without variation ; and where any person is competent 
 to confirm an invalid lease without variation, the lessee 
 can be compelled to accept such confirmation. The 
 statutes, however, greatly favour the lessee, for he can 
 compel a new lease to be granted to him with the neces- 
 
 * 12 & 13 Vict., c. 26 ; 13 & 14 Vict., c. 17.
 
 1 01 ACCEPTANCE OF RENT. — LEASE IN ANTICIPATION. 
 
 snry variations, whilst the landlord has no power to 
 compel him to accept such a lease. 
 
 It is further provided that the acceptance of rent 
 under any such invalid lease shall, as against the person 
 acceptiiiL' it, amount to a confirmation of the lease ; but 
 to hind himself he must, upon or before the acceptance 
 of the rent, sign some receipt, memorandum, or note in 
 writing, confirming such lease, and then the acceptance 
 of the rent will render it complete. 
 
 It sometimes happens that, under a misapprehension, 
 a teiumt for life grants a lease by vii'tue of a power be- 
 fore he is properly in possession as tenant for life, and 
 the statute renders such a lease valid if the person 
 granting it shaU continue to be entitled to the estate 
 after the time when he might have granted such a 
 lease.
 
 COUET OF CHANCEKY MAY AUTHORISE LEASES. 105 
 
 LETTEE XVI. 
 
 Where powers beneficial to all persons who could 
 claim under a settlement were not contained in the deed 
 or will strictly settling the estate, Parhament was in the 
 habit, but with great caution, of supplying the omission ; 
 but now, to save the expense and delay of resorting to 
 the Legislature, provisions have been made* which ought 
 to be known by every owner of a settled estate in the 
 kingdom The provisions apply to Ireland as well as to 
 England. You must be content with an outline of them. 
 The Court of Chancery is empowered from time to time 
 to authorise leases of the whole or any part of any settled 
 estates, or of any rights over or affecting them for any 
 purpose whatsoever, whether involving waste or not, 
 upon the conditions imposed by the Act — viz.. 
 
 Every lease is to take effect in possession or within 
 1 year, and for terms not exceeding 
 
 21 years for an agricidtural or occupation lease. 
 40 years for water, water-mills, way-leaves, &c., or 
 
 other easements. 
 99 years for a building-lease, or, in this instance, if 
 authorised by custom, for a longer term. 
 
 The best rent, without a fine, is to be reserved half- 
 yearly, or often er, with special provisions as to mmerals 
 and the interests therein of remainder-men. 
 
 The lease is not to authorise the felling of trees except 
 where necessary for the buildings or works authorised by 
 the lease. 
 
 * 19 & 20 Vict, c. 120.
 
 1 06 LEASES TJNDEB THE AUTHORITY 
 
 The lease is to be by deed, and the lessee is to execute a 
 omntorpart ; and there is to be a condition for re-entry if 
 tlie rt'Ut is 28 days in arrear, and such other covenants 
 jis the Couit shall diiect. 
 
 The Court may authorise prelunuiaiy contracts, and 
 the terms may be varied in the leases. 
 
 The lessees may surrender the leases, and new leases 
 may be granted of the property sui-rendered. 
 
 The Court is to direct who are to be the lessors. 
 
 The Act then provides by whom ajiplication may be 
 made to the Court, and with whose consent, with other 
 imjMtrtunt provisions; but most of these provisions apply 
 equally to sales under the Act, to which I propose to call 
 your attention in my next Letter, and I do not therefore 
 add them here. I will afi&x an asterisk to such of them 
 as refer to leases, and thus put you in possession whilst 
 I avoid a repetition of them.* 
 
 The Act, then, provides that every person in posses- 
 sion of any settled estate for his life, or years determin- 
 able with his life, or for any gTcater interest in his own 
 right or in right of his wife (unless there is an express 
 declaration to the contrary in the settlement), and also 
 any person entitled in possession to any unsettled estate 
 as tenant by the curtesy, or in dower, or in right of a 
 ■wife seised in fee, without any application to the Court 
 of Chancery [pray observe this] may lease the estate 
 (except the principal mansion and the demesnes and 
 lands usually occupied vn\\\ it) for 21 years ; but this 
 power only extends to settlements made after the 1st of 
 November 1856. 
 
 The lease under this last power must be made to take 
 effect in possession and by deed, and at rack-rent without 
 
 * P. 115.
 
 OF THE COUET OF CHANCEEY. 107 
 
 a fine, which rent will go with the estate. The lease 
 must not be made dispunishable of waste, and must con- 
 tain a covenant to pay the rent, and such other usual and 
 proper covenants as the lessor shall think fit, and a right 
 of re-entry on non-payment for 28 days of the rent, and 
 on non-observance of any of the covenants in the lease. 
 A counterpart of the lease is to be executed by the lessee, 
 but the execution of the lease by the lessor is made evi- 
 dence that a counterpart of it has been duly executed by 
 the lessee. 
 
 There are two important j)owers in the statute — one 
 relates exclusively to leases, the other is general — which 
 may properly find their place in this Letter. 
 
 I. The Court is authorised, where it shall be deemed 
 expedient, to vest any general powers of leasing any 
 settled estates either in the existing trustees of the settle- 
 ment or in any other persons, and may impose any con- 
 ditions as to consents or otherwise on the exercise of 
 such powers, and may also authorise the insertion of 
 provisions for the appointment of new trustees for the 
 purpose of exercising such powers of leasing. 
 
 II. The Court, with a due regard to the interests of 
 all parties, may direct that any part of any settled estate 
 be laid out for streets, roads, paths, squares, gardens, or 
 other open spaces, sewers, drains, or water-courses, either 
 to be dedicated to the public or not, and the Court may 
 direct the parts so laid out to remain vested in the 
 trustees, or to be vested in any other trustees, and with 
 provisions for the appointment of new trustees, as shall 
 be deemed advisable. 
 
 I may now mention to you that rents received upon a 
 lease by a tenant in fee, or for life, or gTanted under a
 
 1 OS SHORT FORMS OF LEASES. 
 
 j)Owcr, and all other rents becoming due at fixed periods 
 under any instrument, are, upon the death of any person 
 interested in such rents, or on the determination by any 
 other means of his interest, made apportionable in favour 
 of such person or his personal representatives, unless it 
 shall be expressly stipidated that no apportionment shall 
 take j)l;ice.* 
 
 I shall conclude this Letter by informing you that there 
 is an Act of Parliament-f- which, if you express your lease 
 to be made in pursuance of it, enables you to adopt a 
 few words to which an extended meaning is given by 
 the Act : the object was to facilitate the granting of 
 leases by shortening of them, but like its twin brother, 
 an Act for Shortening Conveyances,J it has not, I believe, 
 been resorted to in practice. 
 
 * 4 & 5 Will. IV., c. 22. t 8 & 9 Vict, c. 124. 
 
 4: 8 & 9 Vict., c. 119.
 
 AGKEEMENT FOE A SETTLEMENT : FRAUD. 109 
 
 LETTER XVII. 
 
 The subject for the present Letter is the Settlement of 
 your Estates. 
 
 I may premise that the Statute of Frauds, to which I 
 have so often referred you, requires agreements made 
 upon consideration of marriage to be in wiiting, and 
 signed by the party to be charged therewith, or his 
 ascent. A letter, however, is considered a sufficient 
 agreement, if it contain the terms, and amount to an 
 offer. In one case a man wrote a letter, signifying his 
 assent to the marriage of his daughter, and that he 
 would give her i^lSOO ; and afterwards, by another 
 letter, upon a further treaty concerning the marriage, he 
 receded from the proposals of his letter. And at some 
 time afterward he declared that he would agree to what 
 was propounded in. his first letter. It was held that 
 this letter was a sufficient promise in writing ; and that 
 the last declaration had set up again the terms in the 
 first letter. Reliance, however, should never be placed 
 on a mere letter. 
 
 Equity will, in some cases, relieve a party on the 
 ground of fraud, although there is not a valid agree- 
 ment. A man of the name of Halfpenny, upon a treaty 
 for the marriage of his daughter, signed a wiiting, com- 
 prising the terms of the agreement ; and afterwards 
 designing to elude the force of it, and get loose from his 
 agreement, ordered his daughter to put on a good 
 humour, and get the intended husband to deliver up the 
 WTitmg, and then to marry hini, which she accordingly
 
 110 NATURE OF A COMMON 
 
 ditl ; aTid Halfpenny stood at the comer of a street to 
 see them go l)y to be married, and afteiward refused to 
 perform the agreement. He was, liowever, compelled 
 by equity to do so ; although while the case was before 
 the (.'ourt he walked backwards and foi-wards, calling out 
 to the ju<lge to rememher the statute, which he humor- 
 ously said, / do, 1 do ; and he held the case to be out 
 of the statute on the gi'ound of fraud. 
 
 In settling an encumbered estate you should always 
 make some provision for payment of the encumbrances, 
 otherwise the encumbrancer might, as sometimes has 
 hapj)ened, enter, and receive all the profits, to the exclu- 
 sion of your wife and childi-en. Where a considerable 
 jointure is provided for a wife, and large portions for 
 younger children of the maniage, it is desirable to 
 appropriate a part of the estate for each, and not to 
 charge the whole estate with both. If you make a 
 settlement on a son's marriage in your lifetime, you 
 should make some provision for the event of his dying 
 before you, leaving children. A fund ought to be pro- 
 vided for their maintenance in that event. 
 
 The common settlement on a marriage, of the in- 
 tended husband's real estate, is to the husband for life, 
 then to secure the wife's jointure and the younger chil- 
 dren's portions, and subject thereto, to the first and 
 other sons successively in tail ; and then to the daugh- 
 ters, as tenants in common in tail, with cross-remainders 
 in tail, and ultimately to the husband in fee. The 
 operation of such a settlement is to give the estate after 
 the husband's death, subject to the jointure and younger 
 children's portions, to the eldest son, and after him to 
 his issue ad infinitum ; and if they fail, to the other 
 sons and their issue, successively in like manner. If 
 they all fail, then the daughters take equally, and the
 
 MAERIAGE SETTLEMENT. Ill 
 
 share of each daughter goes to her issue in like manner ; 
 but if there is a failure of issue of any daughter, her 
 share goes over to the other daughters and their issue. 
 If all the children die without issue, the estate reverts to 
 the husband, and he may dispose of it by deed or will, 
 subject to the interests of his widow and children. The 
 estates which children thus take are termed estates-tail, 
 the nature of which I have explained to you in Letter X. 
 When the eldest son attains twenty -one, he and 
 his father together can unfetter the estate, and re-settle 
 it as they please, subject only to the jointure and por- 
 tions. And after the father's death the son may do it 
 by himself ; nor can the father defeat his power of alien- 
 ation. Where a son attains twenty-one in his father's 
 lifetime, the father frequently grants his son a provision 
 during their joint lives, in consideration of which the 
 son joins with his father in re-settling the estate, in such 
 a manner that, if he dies without issue, the estate may 
 go over to the younger branches of the family. Some- 
 times, instead of a rent-charge, the estate itself is given 
 to the wife for life, after her husband's death ; in wliich 
 case the son cannot, after his father's death, and during 
 her lifetime, unfetter the estate without her concurrence. 
 Where a settlement is made on the eldest son's at- 
 taining twenty-one, and a provision is made for him 
 during the joint lives of him and his father, it is not 
 unusual to increase the mother's jointure, and to add to 
 the younger children's portions, besides confining the 
 son to a tenancy for life, and giving the estate over to 
 the yomiger branches, if his issue, for whom, of course, 
 provision is first made, should fail. In such a case, if 
 the eldest son should die in his father's lifetime, leaving 
 issue, provision should be made for them during the life- 
 time of theii' grandfather. It has unfortunately happened
 
 1 12 MAKRIACE SETTLEMENT. 
 
 that ill soiiu' oasi'S of this nature, the son, generally after 
 ht' has wasti'tl the provision made for hiin, has filed a 
 1)111 aj^ainst his father to set aside the re-settlement, on 
 the Lrroiind of parental influence, and the want of a suffi- 
 cient consideration or price given by the father for the 
 interests which the son transferred from himself by the 
 rc-scttlcmcnt. It is rarely that the attempt has suc- 
 ceeded, although if the case were made out, the Court 
 would set aside the re-settlement. But the inclination of 
 the Court is to support such a transaction where there 
 has been fair deaUng with the son, and it will not weigh 
 in veiy nice scales the consideration on the one side or 
 the other. There must, however, have been no advan- 
 tage taken of the son's youth and inexperience, or of his 
 necessities. 
 
 The desii-e of continuing an estate in the male branch 
 frecpiently induces the parent to give the estate, in the 
 first instance, to the issue male of liis sons, with remainder 
 to his daughters, not altogether, but successively, and to 
 their issue male only ; and in that case no provision is 
 made for the female is.sue of his sons and daughters, un- 
 less there is a failure of issue male. This mode of settle- 
 ment a lawyer would shortly describe thus : to the first 
 and other sons successively in tad male ; remainder to 
 the first and other daughters successively in tad male ; 
 remainder to the first and other sons successively id tail 
 general ; remainder to the first and other daughters suc- 
 cessively in taU general. The mischief of this plan is, 
 that the estate may go backwards and forwards from one 
 branch of the fimiily to the other. Tims if you have an 
 only son, and he dies and leaves a daughter, but no son, 
 the estate will go over to your eldest daughter ; but if 
 she dies anrl leaves no son, although she leaves daughters, 
 the estate wdl belong to the daughter of the eldest son.
 
 FUTUEE MAERIAGE. — PIN-MONEY. 113 
 
 It is very usual to give the estate merely to the issue 
 male of the marriage, and then to direct it to revert to 
 the parent, subject to the widow's jointure and the 
 daughters' portions ; but where this plan is adopted, 
 additional portions are mostly provided for the daughters 
 in case there is a failure of issue male. On the other 
 hand, an estate is sometimes given amongst all the chil- 
 dren, as well sons as daughters, and their issue equally ; 
 in which case of course no money is directed to be raised 
 for the portions of younger children. 
 
 In making a marriage settlement a man should always 
 look to a future marriage. His wife may die young, 
 leaving an infant family, and he may have no power to 
 jointure any other wife, or to provide portions for the 
 children of any other marriage. The same observations 
 apply to a woman who is about to settle property on her 
 marriage. I remember an instance where a young lady 
 with a competent fortune married a man without any, 
 and her fortune was settled on the husband for life, then 
 to her life, and afterwards to the children, and if none, 
 to him. He died very shortly after the marriage, and 
 there was no child, and the reversion j)assed by his will : 
 in the result, she was left a yomig widow, with a life- 
 interest only in her own fortune. 
 
 Sometmies a separate provision is made for a wife 
 dming her husband's lifetime. This is called pin- 
 money. It is always the first charge on the estate, so 
 that the husband takes subject to it. If, however, a wife 
 permit her husband to receive her j)in-money, or, what is 
 the same thing, do not claim it, and he maintains her, 
 she cannot after his death compel payment of more than 
 one year's an^ears out of his estate. 
 
 In an important case in the House of Lords, it was 
 asked with reference to the wife of a noble duke, with a 
 
 H
 
 114 PIN-MONEY. — POWERS. 
 
 large nniount of pin-money — Sliall it be said that this 
 lady may dres.s herself like a peasant's wife, may lay out 
 ^10 liy the year u])(jn her own personal expenses, 
 may pive no money, either in charity to the poor, or in 
 larije.sse to her servants, her attendants, or her maidens 
 — that she may in evciy respect spare every expense upon 
 her person, and hoard her pin-money, and that she has a 
 rijrht to do so in neirlect of the rank, and in spite of the 
 authority of her husband?* And an ojiinion was expressed 
 that pin-money is a fund which she may be made to 
 spend during the coverture, by the intercession and 
 advice, and at the instance of her husband ; and an 
 opinion was even expressed that he might hold back her 
 pin-money, if she did not attire herself in a becoming 
 way. But not\Antlistan(ling this high authority, I must 
 warn you that the wife's liability thus to expend her pin- 
 money is one which the civilians call a duty of imper- 
 fect obligation. She cannot be made to spend it in dress, 
 ornaments, gifts, or charity ; nor can her husband A^ith- 
 hold payment of the pin-money, though she be a miser 
 and a slattern. Such a power in the husband would 
 destroy the veiy object of the provision — that he shoidd 
 not examine into her disposition of her pin-money, whether 
 for articles of dress, ornaments of her person, pocket- 
 money, canl-mouey, charities, or any other objects. But 
 her right to demand from her husband what her pin-money 
 ought to supply her with is a very different question. 
 
 It is usual to reserve such powers in a settlement as 
 will conduce to the benefit of the parties, or the estate. 
 Thus powers are almost always given to grant building- 
 leases and lea.ses at rack or full rents, and even to sell 
 
 • These circumstances had not occurred ; but the questions were asked 
 with reference to the right to the arrears of the pin-money after the 
 duchess's death.
 
 AUTHOKITY OF C^- OF CHANCEEY TO ORDER SALES. 115 
 
 the estates and buy others, or to exchange them for others. 
 Where an undivided part of an estate is settled, a power 
 should be given to the trustees to join in a partition of 
 the entirety, and take back a divided part of the estate. 
 
 If a man were now to object to the introduction of 
 powers to lease or to seU in his settlement, he must go 
 further, and declare that the powers given by the Act, to 
 which I referred you in my last letter, shall not be 
 exercised over the estate. In that letter I stated to you 
 the powers of leasing conferred by that statute, and I 
 have now to inform you of the other important powers 
 in that Act of Parliament,* and I shall, as I promised I 
 would, mark those provisions with an asterisk which 
 apply to leases as well as to sales.-f- 
 
 The Court of Chancery in England, and that in Ire- 
 land, with a due regard for the interests of all parties 
 entitled under the settlement, may, from time to time, 
 authorise a sale of the whole or any parts of any settled 
 estates, or of any timber (not being ornamental) on any 
 settled estates : the sale to be conducted as in the case 
 of sales mider a decree. 
 
 Upon a sale for building purposes, the whole or part 
 of the consideration may be a rent issuing out of the 
 land, if the Court shall think fit. 
 
 Upon sales of land — earth, coal, stone, or mineral may 
 be excepted, and any rights or privileges may be reserved, 
 and the Court may require the purchaser to enter into 
 any covenant, or submit to any restrictions, which it may 
 deem advisable. And the Court is, in every case of a 
 sale, or of such a dedication of land as I have mentioned 
 to you in my last letter, to direct who is to convey. 
 
 * The application for the exercise of the powers may be 
 made by any person in possession for a term of years, 
 * 19 & 20 Vict., c. 120. t P. 106.
 
 1 1 r, COURT OF CH.V^'CERY MAY AUTHORISE 
 
 ileterniinaMo on his death, or for an estate for life or 
 any i^reatiT estate. 
 
 But cveiy applieatiun must be made with the consent 
 of the followinji: parties — viz. where there is a tenant in 
 tail, under the settlement, of full age, then such tenant 
 in tail, or tlie first of them, if more than one ; and all 
 jtei-sons in existence having any beneficial estate or 
 interest under the settlement p7-ior to such estate-tail, 
 and all trustees having any estate or interest on behalf 
 of any unborn child prior to such estate-tail. 
 
 Provided that unless there shall be a jyerson entitled 
 to an estate of inheritance, ivhose consent shall have 
 been refused or cannot be obtained, the Court may give 
 effect to any aj)plication, so as not to affect the rights of 
 any person whose consent has been refused or cannot be 
 obtained, or whose rights ought in the opinion of the 
 Court to be excepted. 
 
 * A person is to be deemed entitled to the possession or 
 to the receipt of the rents, although his estate may be 
 charged or encumbered either by himself or hy the settlor, 
 or othenvise howsoever to any extent ; but the estates or 
 interests of the parties entitled to any such charge or 
 encmnl)rance, are not to be affected by the acts of the 
 l»erson entitled to the possession or to the receipt of the 
 rents, unless they concur therem. 
 
 I never could miderstand how this clause would work. 
 If the tenant for life has encumbered his life estate, the 
 encumbrances cannot be paid off out of the purchase- 
 money, for that is to be reinvested, and therefore the pur- 
 chaser would have to pay the entire purchase-money for 
 the estate in fee, and yet would be liable to the en- 
 cumbrances of the tenant for life, if the encumbrancers 
 did not concm- in the sale. 
 
 * There is a aseful provision, that the Court shall direct
 
 SALES OP SETTLED ESTATES. 1 1 7 
 
 notice of any exercise of the powers conferred on it to 
 be placed on the settlement, or any copies of it, or other- 
 wise recorded, as it may think proper, where it shall 
 appear to be practicable and expedient for preventing 
 fraud or mistake. 
 
 * There are proper provisions for securing the purchase- 
 monies, and also the portion to be set aside under leases 
 of minerals. The application of the money is directed to 
 be in the redemption of land-tax, or the payment off" of 
 encumbrances, or in the purchase of other estates to be 
 settled to the same uses, or in the payment to any person 
 becoming absolutely entitled. The money in the mean time 
 to be invested, and the interest paid to the person who 
 would be entitled to the rents of any land purchased. 
 
 * Liberty is given to the Court to exercise any of the 
 powers repeatedly. But no powers shall be exercised if 
 an express declaration or manifest intention that they 
 shall not be exercised is contained in or may be reason- 
 ably inferred from the settlement, or from extrinsic cir- 
 cumstances or evidence. Provided that the circum- 
 stance of the settlement, containing powers to effect 
 similar purposes, shall not preclude the Court from 
 exercismg any of the powers conferred by the Act, if it 
 shall think that the powers in the settlement ought to 
 he extended. This I thought was going too far. 
 
 *But the Court is not emiDOwered to authorise any 
 lease, sale, or other act beyond the extent to which, in 
 the opinion of the Court, the same might have been 
 authorised by the settlement by the settlor. 
 
 * This portion of the Act winds up with this impor- 
 tant declaration — that no lease, sale, or other act com- 
 pleted under its authority, and purporting to be in pursu- 
 ance of it, shall be invalidated on the ground that the 
 Court was not emj)owered to authorise the same, except
 
 1 IS MARRIAGE SETTLEMENTS 
 
 that no lease, sale, or other act is to have any cflfect 
 ai?ain>t any i)ers()n who.se consent to the application 
 ou;,'ht to have heen and was not obtained. 
 
 * The Court lias power to order the costs to be a charge 
 on the estates, or to be raised by sale or mortgage of 
 them, or out of the rents. 
 
 * The powers given by the Act, and applications to the 
 ( "(nu't and con.sents, may be exercised by guardians for 
 infants, l)y conmiittees for lunatics, and by assignees of 
 bankruitts or insolvents ; but the special direction of the 
 Court is required in the cases of infants, or lunatics 
 tenants in tail. 
 
 * Tlie usual provision is made for the separate exami- 
 nation of a married woman applymg or consenting ; but 
 although she is restrained from anticipation by the 
 settlenient, yet the Court may exercise any of its powers, 
 and it is ununportant that she is an infant. 
 
 There is a proviso, that estates rendered inalienable by 
 Act of Parliament, or where the reversion is in the Crown, 
 shall not be sold or leased beyond twenty-one years. 
 And there is a saving of the rights of lords of manors. 
 
 I have only to add, that no one is compellable to 
 make or consent to any application to the Court, or to 
 exercise any powers, whether to lease or to sell. 
 
 A desire has often been shown, not merely to improve 
 the law (»f real pro])erty, but unnecessarily to alter it, 
 and to admit only simple settlements after the fashion 
 of tlie Code Napole(jn. But the present plan of a strict 
 .settlement in this country is free from all objection. It 
 does not ])lace land extra commercium, but within 
 rea.sonable limits enables the o^^^ler to transmit it to all 
 his posterity ; and from its very nature leads to succes- 
 sive settlements, which alone have kept many estates
 
 EXPLAINED AND DEFENDED. 119 
 
 ill the same families. Our law allows no dispositions 
 which tend to a perpetuity, nor can we attach any con- 
 dition to our gifts which are against public policy ; for 
 example, you could not limit an estate to one in fee 
 upon condition to be void if he cultivated his arable 
 land, and there are other instances which were brought 
 forward in the great Bridgewater case in the House of 
 Lords. We have substituted for fines and recoveries 
 another simple but deliberate form ; have protected 
 contingent remainders without the elaborate machinery 
 formerly resorted to ; and have at once enlarged the 
 testamentary power, and altered the law of revocation 
 by subsequent disposition. These improvements, and the 
 disposition to curb the rising desire to evade the 
 wholesome rule of law as to perpetuities, have struck at 
 the root of the leading evils in the law of property. The 
 common law was evaded, because mankind, in spite of 
 legal restrictions, will settle their property on their j)os- 
 terity and relations in succession. The rule as now 
 established is open to no inconvenience. If we look at 
 the frame of a common marriage-settlement, we shall 
 find it strictly jDrovide for all the issue of the marriage, 
 and yet not suspend, beyond a reasonable period, the 
 power of alienation. The estate, as I have before stated, 
 is limited to the husband for life ; then the wife, if she 
 survive him, is to have a rent-charge for life ; and sub- 
 ject to that, the estate is to go (1.) to the first and other 
 sous successively in tail male ; remainder (2.) to the 
 first and other sons successively in tail general ; re- 
 mainder (3.) to the first and other daughters in tail 
 general, or, if you will, to all the daughters as tenants 
 in common in tail general, with cross - remainders in 
 tail general, with remainder to the settlor in fee, and 
 portions are provided for the yomiger childi'en. Now
 
 1 20 MARRIAGE SETTLEMENTS 
 
 umler such a settlement the father enjoys the whole 
 estate for his life without control ; upon his death the 
 sons, and their issue male after them, take in succes- 
 sion, and then the issue female of the sons are let into 
 the enjoyment ; and if they fail, the dau<ihters and their 
 issue take ; and this course of devolution, if not inter- 
 rupted, wU take place until all the issue is exhausted. 
 But when a man attains twenty-one, although his father 
 is living, he may alone acquu'e the disposition of the 
 estate during the continuance of any issue which he may 
 have, although it rarely happens that this power is exer- 
 cisfd, unless where a son is not upon good terms with 
 his father, and desires to render his estate available as far 
 as he can as a security for debts in his father's lifetime ; 
 and in such cases, after his father's death he may acquire 
 the whole dominion over the estate ; but fortunately for 
 families, the interest which he can in his father's life- 
 time acquire without his consent, in the projjerty, is not 
 such as money-lenders will advance money upon, for if 
 he should die in his father's lifetime without issue, all 
 his interest in the estate would cease. With his father's 
 concurrence the son may bar all the remainders over, 
 and acquire the fee subject to the father's life estate. If 
 a son many in his father's lifetime with his apjirobation, 
 the power to bar the remainders is constantly exercised, 
 and a new settlement is made. "WTiere there are younger 
 children of the first marriage, the father is always 
 anxious to have the estate re-settled on them and their 
 issue, in case of failure of issue of the first son. This he 
 cannot accomplish without the concurrence of the son ; 
 and as the son upon his establishment in life, in his 
 father's lifetime, requires an immediate provision, the 
 father generally, a.s I have already obseiTed, .secures to 
 liiui a jirovisioii during their joint lives as a considera-
 
 EXPLAINED AND DEFENDED. 121 
 
 tion for the re-settlement of the estate in remainder upon 
 the younger sons. Thus are estates quickly re-settled, 
 and the State does not, that I am aware of, suffer any 
 inconvenience from such repeated settlements. No man 
 in this country can justly complain that there is not 
 sufficient land in the market on sale. If the estate is not 
 re-settled in the father's lifetime, the son can, after the 
 father's death, acquire the absolute ownership in the pro- 
 perty, and dispose of it as he pleases ; and so, if the 
 estate is left in a course of descent, may every successive 
 remamder-man. But although upon a settlement a 
 father may be willing to abridge his estate in favour of 
 his issue, and confine himself to a life interest, yet he is 
 always anxious to retain every power of disposition over 
 the property which is compatible with the interest of his 
 children. The extent of the father's powers must in each 
 case depend upon the agreement and wishes of the 
 parties ; but in a common settlement of an estate of any 
 magnitude there are inserted powers to the father, with 
 proper checks, to lease the estate according to the nature 
 of it ; to sell it, and buy another estate with the money, 
 to be re-settled ; to exchange it for another eligible to be 
 brought into settlement ; and if an undivided share is 
 settled, to make partition with the owners of the other 
 shares : thus, on the one hand the estate is secured to 
 the children of the marriage to the latest generation, 
 without preventing their power of aliening ; and on the 
 other, the father, although necessarily confined to a 
 tenancy for life, is invested with such ample powers over 
 the estate, that for all purposes of reasonable enjo3anent 
 he would be ignorant, were he not otherwise aware of 
 the fact, that his rights of ownersliip are cm'tailed : he is 
 enabled to make every disposition of the estate which 
 tends to meliorate it : he has every capacity of an owner
 
 \'2-2 MARRIAGE SETTLEMENTS 
 
 ill foe to benefit the estate and himself, as the temporary 
 owiK'T of it, in c(ininu)u with tlie remainder-men, but 
 none to mjure it. The natural dependence of the son's 
 estate on the father's, comiteracted in a sufficient degree 
 1>y till' inability of the father to make any re-settlement 
 without his son's consent, is also an important result of 
 such a settlement. It would not be endured that a son 
 sliduld be allowed, living liis father, to dispose of the 
 family estate without his ftither's consent, although limited 
 to him, subject to his father's life-interest. The present 
 system leaves the son the full property during his father's 
 lifetime, for the purposes of transmission by descent, and 
 assures to him, as far as is practicable, the enjoyment of 
 the estate when in the regular course it devolves upon 
 him in possession. It restrains his wanton alienation of 
 it from the family before he knows its value ; but as he 
 can, with his father's concurrence, acquire the fee and 
 make a new settlement, few, indeed, are the instances in 
 which the mutual interests of the father and son do not 
 lead to an equitable adjustment of their rights, when the 
 proper time for a new disposition arrives. 
 
 It is objected that these purposes are effected by a 
 conifilicated and an expensive machinery ; but whoever 
 complained of the complex movements in a well-finished 
 watch ? We admire the connection of its parts depend- 
 ing on each other, and all necessary to form the combina- 
 tion which produces the desired results. Why then 
 should we conq^lain of a well-digested settlement? Its 
 length is occasioned by the multiplicity of its provisions, 
 most of which will, and every one may, be brought into 
 action : the ab.sence of a single one may tend to great 
 expense and inconvenience. Settlements, as they are 
 now framed, are the result of the improvements of 
 centuries ; they meet the wishes and wants of mankind.
 
 EXPLAINED AND DEFENDED. 123 
 
 and are open to no sensible inconvenience ; and yet we 
 are required at once to discard them for ever. The 
 attempt to shorten conveyances by legislative enact- 
 ments has been proved to be hopeless ; it must be left 
 to the good sense and honour of the conveyancers ; for 
 if you were to render it unlawful to adopt any other 
 than a prescribed form of grant, yet a long deed might 
 always be made by unnecessary recitals of the previous 
 title. 
 
 There were forms necessary for unfettering a freehold 
 estate which have been abolished ; but upon a close 
 inspection we shall find how great a debt we owe to our 
 ancestors at the bar, and on the bench, for the very 
 forms of which we complained ; they were all invented to 
 obviate the injustice of prior statutes and laws, and have 
 led to the system under which we have flourished. They 
 are now no longer necessary. The benefits have been 
 retained without the ceremony, which had become use- 
 less and expensive : we are more enlightened, and feared 
 not to do that directly, which our ancestors could only 
 accomplish indirectly ; and therefore we were all agreed 
 that the substance should be retained, and that we should 
 arrive at it by a cheap and direct road instead of an 
 expensive and crooked way. Let us never confound 
 substances with forms ; and because we do not approve 
 of the trappings, sacrifice the noble animal whom they 
 encumber, but do not adorn. 
 
 In executing the powers vested in you by your settle- 
 ment you must always be guided by good faith : if 
 under a power to lease at rack or full rent, without 
 taking a fine or premium, you accept a bonus, you com- 
 mit a fraud on the power, and your lease wUl accord-
 
 12\ TENANT FOR LIFE RESTRAINED 
 
 in;,'ly bo void ; if you exercise a power to jointure your 
 wife with a stipulation that slie .shall join with you in 
 sceurinji your tlebts on her jointure, the appointment 
 will he vi»icL Nor must you abuse your authority. If 
 you have a jtower to sell settled estates, and to lay out 
 tlu' moiu'y in the ])urchase of other estate.s, although 
 tluTi' is a direction in the .settlement that until a pur- 
 chase is found the money shall be laid out in the funds, 
 yet the intent of the power is, that one estate .shall be 
 sold only f(^r the purpose of laying out the money in the 
 purchase of another. Therefore you cannot sell the 
 estate in order to keep the purchase -money out at 
 interest, for that would increase your income at the ex- 
 pense of the capital. It would, it is true, give you a 
 larger per-centage ; but the same money probably would 
 not at a distance of time purchase an estate of the same 
 value a.s that which you sold. 
 
 In some instances equity will restrain rights given by 
 a settlement with which you may conceive they ought 
 not to interfere. Under your marriage settlement you 
 are tenant for life, without impeachment of waste, or, 
 in other words, you are not punishable for committing 
 waste, and consequently you may legally cut down as 
 much timber on the estate as you please. But still 
 equity will not suffer you to cut down any trees which 
 are an ornament, or afford shelter to the mansion-house, 
 or to any of the buildings on the estate, or which grow 
 for ornament in any of the vistas, avenues, walks, plea- 
 sure-grounds, or plantations on the estate. Nor can you 
 justify the act, by having yourself planted even millions 
 of trees on the estate subsequently to the settlement ; 
 therefore, if a man making a settlement really mean to 
 reserve power to cut whatever timber he please, whether 
 it afford ornament, or shelter, or not, the intention
 
 FEOM COMMITTING WASTE. 125 
 
 should be expressly declared in the settlement. The 
 power which the courts of equity have assumed to 
 restrain the exercise of the right which the words 
 " without impeachment of waste " confer at law, is a 
 power which one cannot but lament they should possess. 
 The Court can, in general, only judge of the ornament 
 or shelter afforded by the trees from the affidavits in the 
 cause. Men are but too ready to support the cause of 
 their principal, without always considering sufficiently 
 the justice of it. Affidavits flatly contradicting each 
 other are in these cases almost invariably made by the 
 agents of the different parties. This facility of restrain- 
 ing a tenant for life from exercismg his legal right 
 foments and irritates domestic strife, makes the son the 
 shameless antagonist of his parent in an open court of 
 justice, and fixes into eternal enmity that disagreement 
 which concihation might happily have effaced. If such 
 a proceeding wound the peace of a parent in the evening 
 of his days, how severe a punishment does the child 
 inflict on himself ! To save a few perishable trees, he 
 preserves, while they last, a monument of Ms want of 
 filial duty ; he keeps a signal to remind his own children 
 of the duty which they owe to him. 
 
 Equity will also restrain a tenant for life, although 
 without impeachment of waste, from defacing or pulling 
 down the mansion-house. This was done in the year 
 1716, in Lord Bernard's case. He had almost totally 
 defaced the mansion-house, by pulling down great part 
 of it, and was going on entirely to ruin it, whereupon 
 the Court not only enjoined him not to proceed farther, 
 but compelled him to rebuild, and put it in the same 
 plight and condition it was at the time of his entry 
 thereon. 
 
 Where money to any considerable amount is settled, a
 
 1 jr, ILLUSORY APPOINTMENTS. 
 
 power sliould be reserved of laying it out in land to be 
 ro-sold when convenient, and in the mean time to be 
 treated as money. 
 
 In money settlements, generally, and sometimes even 
 in settlements of real estate, a power is reserved to the 
 jMirent to appoint the property to all or such of the 
 <hildi-en a.s he .shall think fit. If the power is only to 
 aj»jM>iiit the projtortions amonost the children, he cannot 
 exclude any ; eveiy one must have a share ; but he may 
 now give to any a share merely nominal. 
 
 * The Act which made what were termed illusory ap- 
 ])ointinents, that is, ajjjjointments of nominal sums, good 
 in equity, as they always were at law, proceeded upon this 
 principle, that as the power reipiired every one to have a 
 share, the donee of the power could not properly exclude 
 any, although he might give what he pleased — Is., for ex- 
 ample, to one or more. Of course, where the power is to 
 appoint to any exclu.sively, he may give all to one ; as in 
 substance he may under the former power. But still in 
 this, as in all other cases, the power must not be abused. 
 An apjxtintment cannot be made to a child under any 
 stipulation for the parent's benefit ; for example, that he 
 .shall jf)in in a sale of the estate, although the child may, 
 after the appointment, if he think fit, join with his father 
 in selling the estate, and the transaction cannot be im- 
 ]>eached if the money is fairly paid to the father and son. 
 So if you have a power to api^oint any sum to any of your 
 '•hildren, at what age you please, you cannot appoint it 
 to a sickly child under age, in order that upon his death 
 you may get it as his administrator. 
 
 Almost any instrument, however infomial, upon which 
 the intention clearly appears, Avill be deemed in equity a 
 good execution of a power of jointuring, or of appointing 
 • 1 Will. IV., c. 46.
 
 HOTCHPOT : COVENANT TO SETTLE. 127 
 
 property to your children ; but such difficulties arise in 
 these cases that I cannot too much impress upon you the 
 necessity of never doing any act in relation to estates 
 over which you have only a power, without first applying 
 to your sohcitor. 
 
 Where a power is given to appoint a fund amongst 
 children, and the property is given to them in default of 
 appointment, it is mostly declared that no child shall 
 take a share of any part unappointed, without biinging 
 his appointed share into hotchpot — which word hotch- 
 pot, our famous judge Littleton, with great gravity, tells 
 us is, in English, a pudding. The object of this provi- 
 sion is to compel a child, to whom part is appointed, to 
 bring his appointed share into the general fund, if he 
 is desirous to take a share of the part unaiopointed. 
 Thus, suppose there be two children, and the fund to be 
 <i£^200, if you give £^0 to one, he must give up that, in 
 order to obtain an equal share of the <£'200 with the 
 other child. This you should always keep in view, and 
 more particidarly where there is not such a clause in the 
 settlement ; for in that case a child would not only take 
 the j^art actually appointed to him, but would be entitled 
 equally with the other children to the residue, although 
 this can seldom be the intention of the party executing 
 the power. 
 
 If you should ever covenant to purchase and settle 
 estates, you will, if you are wise, perform the covenant 
 in your lifetime. However, if you do purchase estates, 
 which are proper to go in performance of your agree- 
 ment, they must go accordingly, although you have 
 permitted them to descend to your heir : consequently 
 he will not be entitled to retain them for his own 
 benefit. 
 
 It is not unusual for a parent, upon a daughter's mar-
 
 12ft CONTRACT TO LEAVE AN EQUAL SHARK 
 
 liiiLTe, t«» iwivvv to loave her at his death a fortune equal 
 to his (itlKT chilihTii. Such an agreement does not 
 conHiie or ri-strict the father's jiower ; he may alter the 
 nature of his property from personal to real, or he may 
 Lfivc scope to ]»rojt'cts, or indulfje in a free and unlimited 
 • xpiiist — hut he will not be allowed to entertain mere 
 partial inclinations and dispositions towards one child at 
 the expense of another. If his ]>artiality do rise so high, 
 and he will make a difiference, he must do it directly, 
 absolutely, and by a gift siurendering all his own right 
 aud interest ; he must give out and out ; he must not 
 exercise his power by an act which is to take effect, not 
 against his own interest, but only at a time when his 
 own interest -will cease. He cannot, for instance, give 
 property in his lifetime to one child, reserving the inte- 
 rest to himself, for such a gift is, in fact, testamentary, 
 and in fraud of his agreement. 
 
 If after you have disposed of an estate by will you 
 make a settlement of it, under which the estate is still 
 vested in you, subject to the interest given to others, 
 generally speaking, it will not now be necessary to re- 
 execute your will. Partial interests may be created, so 
 as not to aftect the operation of a prior will as to the in- 
 terest left in the settlor, if there are proper general words 
 in the will to pass it; but you should inquire whether the 
 conveyance renders a re-puljlication of your wUl neces- 
 sary, or, perhaps, it woidd be better to re-publish your will 
 without inquiry. Tlie operation of your Avill in .such a case 
 will be exjdained to you in Letter XIX. 
 
 I have still to di-aw your attention to a recent Act of 
 Parliament, of gi-eat importance, which would have led 
 to mucli mischief if the Court had not properly come to 
 the determination that it had power to consider the pro- 
 l»riety of the marriage.
 
 INFANTS SETTLEMENT. — SUCCESSION DUTY. 129 
 
 Tliis Act* makes it lawful for every infant, ui^on or in 
 contemplation of marriage, with the sanction of the Court 
 of Chancery, in a summary way, to make a binding settle- 
 ment or contract for one of all, or any part of his real 
 and personal estate, or of property over which he has any 
 power of appointment. But this is not to extend to 
 powers, of which it is declared (by tlie instrument creat- 
 ing them), that they shall not be exercised by an infant. 
 The Act gives the same power to a female infant, but the 
 male must not be under the age of twenty years, or the 
 female under the age of seventeen years. The policy of 
 the Act in giving this power to a young man between 
 twenty and twenty-one may be doubted. 
 
 But if any appointment under a power, or any disen- 
 tailing assurance, as it is termed — that is, the mode 
 appointed by law to enable a tenant in tail to dispose of 
 the fee which I have explained to you in Letter X. — 
 shall have been executed by any infant tenant in taU 
 under the Act, and such infant shall afterwards die under 
 age, such appointment, or disentailing assurance, will 
 become absolutely void. This was quite right. 
 
 I must conclude by reminding you of the Succession 
 Duty Act,-f which has deprived property of half its 
 charms : it is as if a blight had fallen on the fair fields 
 of England. Every man had the right to keep his 
 parclmients — his sheepskins — in his own box, in his own 
 house : no one had a right to pry into the contents of his 
 settlements. Now eveiy man's settlement must be open 
 to the tax office and to the Government of the day, ever 
 on the watch for a new succession, in order to levy a new 
 duty. If, for example, a stipend is provided for an old 
 
 * 18 & 19 Vict., c. 43. t 16 & 17 Vict., c. 51. 
 
 I
 
 180 SUCCESSION DUTY. 
 
 servant who diis, as even annuitants some time must, 
 that eivatcs a suctession, and the person entitled to the 
 pr(»jK'ity has to pay duty for his new enjoyment. You 
 cannot, when liable to duty, cut trees on your estate 
 beyond the value of i?10 a-year, without giving notice 
 to the tax officer, and paying duty. Mr Pitt, in the 
 plenitude of his power, was foiled in bis attempt to in- 
 troduce a much milder imjiost on successions than is 
 fixe<l uiMtn them by the law to which I have refeiTcd 
 you. Tlie net is large and widespread, and the tax, 
 from its natui-e, is the most vexatious burden ever laid 
 upon property in England. 
 
 I have no more information to give you as to settle- 
 ments, and therefore adieu !
 
 INSTEUCTIONS FOR WILL. 131 
 
 LETTEK XVIII. 
 
 I NOW write to you upon one of tlie most important 
 subjects on which I have promised you any information. 
 It has been in some measure anticipated in Letter III. 
 
 Before making your will, there are many questions 
 which you should ask yourself — Is it probable that I 
 shall be much in debt at my decease ? Are there charges 
 on my estate which must be provided for on my death ? 
 What is the nature of my property ? Is any part of it 
 already settled, or agreed to be settled, on my family ? 
 Have I charged portions on any part of it for my 
 children ? What advancements have I already made for 
 them ? Is my wife dowable of any part of it ? Am I 
 only tenant in tail of any part of my estate ? in which 
 case it would be necessary to bar the entail to give effect 
 to your wiU, even if the property be leasehold, in which 
 you cannot, properly speaking, be tenant in tail, but only 
 a tenant in the nature of a tenant in tail. I have ex- 
 plained the nature of an estate tail in my Tenth Letter. 
 These are questions which you should resolve before 
 you give instructions for your will. If any part of your 
 family estate is leasehold, you should direct it to go along 
 with the estate with which it is held. This lawyers can 
 easily effect to the utmost limits which the law allows. 
 They can, in like manner, direct pictures, sculpture, and 
 other personal effects, to go as heir-looms. If yom- 
 children are entitled to portions, you should declare 
 whether you intend what you give them by your will 
 to be in addition to their portions, or in satisfaction of
 
 \:V2 INSTRUCTIONS FOR WILL. 
 
 tluin. I have alrcaily mlvised you, if you make any 
 |>rovisi(iii for your wife, to state whether you mean it to 
 lie in lieu of ilower. 
 
 If you have given your chihhen legacies by your will, 
 and afterwards advance i)Ortions with them on their 
 marriage, you should declare by a codicil whether they 
 are still to be entitled to the legacies. 
 
 If you have advanced them in your lifetime, and then 
 make any j)rovision for them by your will, you should 
 declare whether you mean it t(j be in addition to the 
 advances. So if you have i^iven a legacy by your will, 
 and you afterwards give another to the same person by 
 a codicil, you should declare whether or not you mean 
 him to have both. 
 
 In giving instructions, where you wish your estate to 
 remain in your family, state to your solicitor, whether 
 you mean your sons' daughters to be preferred to your 
 own or not, and whether your sons' daughters are to be 
 preferred to your daughters' sons, and so on ; and also 
 state what powers you wi.sh them to have — as to lease, 
 jointure, grant ])ortions for younger children, sell and 
 exchange ; and if you do not intend them to exercise the 
 powers given to tenants for life generally by the Legis- 
 lature (which I have referred to in Letters XVI. and 
 XVII.), state so distinctly. 
 
 Never in your will say generally that your debts shall 
 be paid, but declare out of what fund they are to be 
 ]»aid ; nor leave it in doubt, if it should become neces- 
 .saiy to sell your property to pay them, by whom the 
 sale is to be made. The Legislature has saved you from 
 the danger of ".sinning in your grave,"* by not pro- 
 viding for the paynient of your debts ; for now all your 
 property, both freehold and copyhold, which you shall 
 
 • 3 & 4 Will, and Mary, c. 14; I Will. IV., c. 47 ; 3 & 4 Will. IV., c. 104.
 
 INSTRUCTIONS FOR WILL. 133 
 
 not by your will charge with or devise subject to your 
 debts, and of course all your personal estate, will be 
 liable at your death to all your debts — by simple con- 
 tract as well as by specialty. 
 
 I am somewhat unwilling to give you any instructions 
 for making your will, "without the assistance of your 
 professional adviser ; and I would particularly warn you 
 against the use of printed forms, which have misled 
 many men. They are as dangerous as the country 
 schoolmaster or the vestry clerk. It is quite shocking 
 to reflect upon the litigation which has been occasioned 
 by men making their own wills, or employing incom- 
 petent persons to do so. To save a few guineas in their 
 lifetime, men leave behhid them a will which it may cost 
 hundreds of pounds to have expounded by the Courts 
 before the various claimants will desist from litigation. 
 Looking at this as a simple money transaction, lawyers 
 might well be in despair if every man's will were pre- 
 pared by a competent person. To put ofl" making your 
 will, until the hand of death is upon you, evinces either 
 cowardice, or a shameful neglect of your temiDoral con- 
 cerns. Lest, however, such a moment should arrive, I 
 must arm you in some measure against it. 
 
 If you wish to tie up your property in your family 
 you really must not make your own will. It were better 
 to die without a will, than to make one which will only 
 waste your estate in litigation to discover its meaning. 
 The words " children," " issue," " heirs of the body," or 
 " heirs," sometimes operate to give the parent the entire 
 disposition of the estate, although the testator did not 
 mean any such thing. They are seldom used by a man 
 who makes his own will without leading to a lawsuit. 
 And now an operation has been given to like words by 
 the new statute, which I could not explam to you with-
 
 134 CONDITIONAL GIFTS. 
 
 out you possessed more knowledge of law than I give 
 you credit for* It were useless for nie to attempt to 
 show you how to make a strict settlement of your ]n-o- 
 perty, and therefore I will not try. I could, without 
 difficulty, run over the names of many judges and 
 lawyers t)f note, whose wills made by themselves have 
 been set aside, or construed so as to defeat every in- 
 tention which they ever had. It is not even a profound 
 knowledge of law which will ca]>acitate a man to make 
 liis own will, unless he has been in the habit of making 
 the wills of others. Besides, notwithstanding that fees 
 are ]iurely honoraiy, yet it is almost proverbial that a 
 lawyer never does anything well for which he is not fee'd. 
 Lord Mansfield told a story of himself, that feeling this 
 influence, he once, when about to attend to some pro- 
 fessional business of his o^\ni, took several giuneas out of 
 his pur.se, and put them into his waistcoat pocket, as a 
 fee for his labour. 
 
 Always avoid, and particularly when you make your 
 own will, conditional gifts and devises over in particidar 
 events. It is the folly of most testators to contemplate a 
 great many events for which they too often inadequately 
 ])rovide. You give me a horse, " and if I die," you give 
 it to my son. Here a question at once arises, when the 
 death is to happen — Generally ? In your lifetime, or in 
 my son's ? Pray avoid this ; and if you must give a 
 thing over, after you have given the entire interest to 
 one, state precisely in what event, and if depending upon 
 the (hath of the first legatee, whether you mean a death 
 in your lifetime, or in the lifetime of the legatee over : 
 And I nuist tell you, that where you have given the 
 al)solute interest, you ought not to make any gift over 
 which will not take effect in a life, or lives, who shall be 
 
 • 1 Vict., c. 26.
 
 MODE OF EXECUTING ■ WILL. 135 
 
 in existence at your death. The rule goes somewhat 
 farther, but I would not advise you, without advice, to 
 go beyond the line which I have marked out ; and, 
 indeed, without advice you wiU be more bold than wise 
 to go even so far. 
 
 Where a man has a large family to provide for, it is 
 often advisable to direct all his property to be turned 
 into money, out of which he may order his debts and lega- 
 cies to be first paid, and the residue to be laid out at inte- 
 rest in the names of trustees, for the benefit of his famUy. 
 
 Sometimes a man making his own will omits to name 
 executors, which causes much trouble and considerable 
 expense after his death. 
 
 As regards the will itself, the all-important point is to 
 comply with the new statutes m the mode of executing 
 your wnU.* Formerly there was a wide distinction be- 
 tween real and personal estate, for a devise of the former 
 required three witnesses, while to a bequest of the latter 
 no witness was required. Now, whatever is the nature 
 of the property, two witnesses are required to every will 
 or codicil. Every testamentary instrument is in this 
 respect placed on the same footing. The first altera- 
 tion of the law made hundreds of vdlls void ; they were, 
 when attempted to be proved, carried away in baskets- 
 ful as valueless, simply because the testator's name was 
 directed to be signed at the foot or end of the will, and 
 upon this slight foundation it was decided, that if there 
 was somewhat more room than enough for the signature 
 between the end of the will and the actual signature, 
 the will was void, so that at last it rather required a car- 
 penter to measure the distance in each case than a judge 
 to decide upon the application of the Act. 
 
 This great reproach to the law has been removed by 
 
 * I Vict., c. 26 ; 15 Vict., c. 24.
 
 1. •',(•, IK.W A WILL SHOULD BE EXECUTED. 
 
 ail act fi»r wliicli T am responsible, and it would be diffi- 
 cult now for a man to plac-e his sii;nature so as to render 
 his will void, for it will lie valid if the signature be so 
 placed at or after, or following or under, or beside or 
 opposite, to the end of the will, that it shall be apparent 
 on the face of the will that the testator intended to give 
 effect by such his signature to the writing signed as his 
 will. And it will not be affected by any of the trifling 
 circumstances which are enumerated, upon which men's 
 wills had been set aside, and the enumeration of these 
 circumstances is not to restrict the generality of the 
 enactment ; which clause has been overlooked by a 
 leanied person, who laments in print that the circum- 
 stances should have been enumerated, lest any Tuay have 
 been omitted. The Act has put an end to all ditiiculty. 
 
 But although the signature is properly placed, yet any 
 disposition or direction which is underneath, or which 
 follows the signature, will be inoperative, nor of course 
 ^^^ll the signature render valid any disposition or direc- 
 tion inserted after the signature shall be made. 
 
 But not to trouble you with nice distinctions, I advise 
 you to make your will in the following manner : — Take 
 care that if written on several separate sheets of paper, they 
 are all fastened together, and that the pages are numbered. 
 Sign your name at the bottom of each sheet, and state 
 at the end of your will of how many pages your will 
 consists. If there are any erasures or interlineations 
 put your initials in the margin opposite to them, and 
 notice them in the attestation. The attestation should 
 be already written at the end of the Avill, and may be in 
 this f(»rm : — 
 
 " Signed liy the above-named testator, in the presence 
 of us present at the same tinrie, who have hereunto signed 
 (Mir names as witnesses thereto, in the presence of the
 
 HOW A WILL SHOULD BE EXECUTED. 137 
 
 said testator, and in the presence of each other [the 
 words interlined in the 4th line of the 3d page having 
 been first added, and the erasures in the 7th and 8th 
 lines in page 6 having been first made."] 
 
 The two persons intended to be the witnesses should 
 be called in, and told that you desire them to \vitness 
 your will, and then you should sign your name in their 
 presence, and desire them each to look at the signature. 
 Your signature should follow your will, but should pre- 
 cede the signatm^es of the witnesses, for if you were to 
 sign after they have signed, your will would be void. 
 Wlien, therefore, you have signed, they should sign their 
 names and residences at the foot of the attestation. You 
 will observe, that according to the attestation, neither of 
 the witnesses, although he has signed the attestation, 
 should leave the room until the other witness has signed 
 also. Remember that they must both sign in your pre- 
 sence, and therefore yoii should not allow them to go 
 into another room to sign, or even into any recess, or 
 any other part of the same room, where it is possible 
 that you might not be able to see them sign. If, there- 
 fore, you do not choose them to sign after you at the 
 same table or desk, have a table placed close to you be- 
 fore they come into the room, so as to create no con- 
 fusion, at which they can and ought to sign before leav- 
 ing the room. If you were to send your servant, who 
 happened to be one of your intended witnesses, out of 
 the room even for a table, he must leave the room before 
 you sign. If after your death a question were to arise 
 upon the fact of your having signed in the presence of 
 both of the witnesses present at the same time, the man 
 would of course admit that he left the room before you 
 did sign, and then imagine what reliance would be 
 placed upon that fact in cross-examination, and in the
 
 l.'S HOW THE TESTATOR AND WITNESSES 
 
 luUlrcss U) tiie juiy. The precaution which I recommend 
 would jiU'vent this ditticulty from arising. 
 
 Evt-n if you are ill and confined to your bed, you 
 should have a table ready at your bedside at which the 
 witncssi-s should siuii after you, and you should not turn 
 your back ujioii thoni whilst they are signing. These 
 simple precautions will render it impossible to impeach 
 your will for want of its due execution. 
 
 Tiie actual law is, that no will shall be valid " unless 
 it shall be in wi'iting, and signed at the foot or end 
 thereof by the testator, or by some other jJerson in his 
 presence, and by his direction ; and such signature shall 
 be made or acknowledged by the testator in the presence 
 of two or more witnesses present at the same time, and 
 such witnesses shall attest and shall subscribe the will 
 in the presence of the testator ; but no form of attesta- 
 tion shall be necessary." And the words, " at the foot 
 or end," have been explained and extended by a later 
 Act in the manner to which I have already referred, so 
 as to render valid any common mode of signing a will. 
 
 You ^^•ill ol)serv"e, therefore, that if you cannot sign 
 your name yom-self, some other person may do so for 
 you in your presence, and by your direction, but this 
 should be noticed in the attestation. It will be no 
 objection that the person signing for you is also one of 
 the attesting witnesses. It has been decided, that where 
 a person signed for the testator, but in his own name, 
 stating it to be for the testator, and by his direction, the 
 signature was a good one. You might, if you could not 
 write, or did not choose to do so, sign by your X or 
 mark, and so may the witnesses, if they cannot write ; 
 but to sign by a mark when you can wTite would be an 
 act of folly, and if you can avoid it, do not have marks- 
 men for witnesses. Although one of the witnesses is
 
 SHOULD SIGN THE WILL.— RE-EXECUTION. 139 
 
 unable to write, yet the other cannot sign for him ; but 
 in such a case the other witness may guide the hand of 
 the witness unable to AViite, so as to enable him to write 
 his name. It would, however, be more advisable to let 
 a marksman affix his mark. 
 
 A husband cannot sign for his wife where they are 
 the witnesses. A witness cannot, by going over his 
 signature with a diy pen, give effect to it as a new sig- 
 nature ; nor can he, by adding a further description to 
 liis place of residence mentioned in his original signa- 
 tm^e, give a new effect to that signatm'e. You should 
 attend to this if you have occasion to re-execute your 
 will, and should requh-e the witnesses to re-write their 
 names as witnesses to the re-execution. I will presently 
 explain to you the object of a re-execution of your will. 
 The initials of the testator and of the former witnesses 
 have been deemed sufficient to give eff'ect to interlinea- 
 tions made in a will where they were opposite to the 
 interlineations ; but I recommend you in such a case to 
 have all the names written at length. I have shown to 
 you that there must be two witnesses to your will ; but 
 you may have more if you please, although I advise 
 you to be content with two. 
 
 But although a witness cannot give effect to his sig- 
 nature by recognition, yet you will have observed that 
 you, the maker of the will, may if you please sign your 
 name in the absence of the witnesses, provided you 
 acknowledge your signature, not merely the will, in 
 their presence. But the witnesses should see that the 
 will is signed by you. Pray attend to this : if you do 
 not sign in their presence, point out your signature 
 carefully to them, although you need not tell them that 
 it is your will, but it is better to do so. If you were 
 purposely to fold your vrill so as to conceal all its con-
 
 140 TKSTIMONY OF THE "WTTNESSES. 
 
 tents and the attestation clause, and the witnesses were 
 not to see you sign nor see your signature, the will 
 would be void, although you acknowledged the paper to 
 he your will before the witnesses. 
 
 But even gestures by a testator, intimating that he 
 lias siirned the will, and wishes the witnesses to attest 
 it, liave been held sufficient where they saw the signa- 
 ture. A will, however, will not be set aside simply 
 \i\um the infirm or confused recollection of witnesses. 
 Their want of recollection where the will, on the face of 
 it, is pntperly executed, will not have much weight. At 
 a distance of time, persons not accustomed to witness 
 the execution of instruments, forget nearly all that 
 passed ; tlierefore defective memory alone in witnesses 
 cannot be allowed to overturn a will. The Court mu.st 
 first be satisfied that the will was not duly executed, 
 and wliere the negative is not established, the affirma- 
 tive must be held to be proved. Where a will was 
 properly signed on the face of it, and two servants 
 attested it, and the testatrix was writing when the first 
 of tliem went into the room, although neither of them 
 knew it was a will, or saw the testatrix sign, and she 
 did not acknowledge her signature, yet as the paper 
 was open, and they might have seen it, the will was 
 establislied. If the witnesses disagree, and the one 
 against the will is discredited, the evidence of the other, 
 with corroborating circumstances, would support the 
 will. If you follow the plain directions which I have 
 given you, no .such question could arise. 
 
 I have advised you to keep both of the witnesses 
 present until they have both signed the attestation. 
 This is not required by the statute, and after some 
 doubt, it appears to be settled that it is not necessaiy, 
 although I think it highly expedient, for it will impress
 
 WHO SHOULD BE WITNESSES. 141 
 
 the matter more upon their minds ; but do not fall into 
 an error on this head. You must sign or acknowledge 
 your signature in the presence of the two witnesses 
 present at the same time, according to the very words 
 of the statute. 
 
 I have furnished you with a formal attestation, which 
 will save both delay and expense in the proof of your 
 will after your death ; but although the statute requires 
 the witnesses to attest and subscribe the will, yet it 
 declares that no form of attestation shall be necessary, 
 so that no attestation clause whatever is required. If 
 the witnesses sign as such, that is sufficient. The word 
 " witnesses," for example, prefixed to their names at the 
 end of the will, would be a compliance with the law. 
 
 The Act protects you against the incompetency of the 
 witnesses to prove the execution of your will ; so that 
 although they may have been guilty of crimes, for 
 example, which would formerly have excluded their 
 evidence in common cases, yet that would not render 
 your will invalid.* You would not, of course, if you 
 were aware of it, allow persons of bad chai'acter to wit- 
 ness your will. Creditors or executors may prove a will 
 to which they are attesting witnesses ; but no person to 
 whom you give a legacy, or to whose wife or husband 
 you give one, should be a witness to your will ; for 
 although the testimony of such a witness would be 
 good, the legacy to him or her, or to his or her wife or 
 husband, would be void. 
 
 I have advised you not to lose sight of the witnesses 
 mitil they have signed the attestation : on no account 
 allow til em to take the will out of the room where you 
 are to sign it, or even to sign it in any part of the room 
 where you cannot see them. The decisions on this 
 
 * See further, 6 & 7 Vict., c. 85. ; 14 & 15 Vict., c. 99.
 
 112 CODICILS. — WILL MADE AT INTERVALS. 
 
 head reflect no credit on the law of England. It is, 
 however, .sufficient if the witnesses sign where you might 
 see them ; it is not necessary to prove that you actually 
 did see them. I have endeavoured, but in vain, to prevail 
 upon Parliament to place the law upon this subject upon 
 a better footing. Even in the case of a blind man, he is 
 treated as if he could see, for the witnesses must sign 
 where, if he enjoyed the organs of sight, he could see 
 them ! 
 
 In one case, where a lady went to her attorney's office 
 to execute her mil, but executed it in her carriage in the 
 jn-esence of the witnesses, who then returned into the 
 office to attest it, the validity of the will was established, 
 because the carriage was accidentally put back to the 
 window of the office, through which, it was sworn by a 
 person in the carriage, the lady might see what passed — 
 that is, the witnesses signing the attestation. In another 
 case of this natm^e, there was an unseemly contest between 
 the Court of Chancery and the juries who had to try the 
 validity of a will of a noble Duke, which depended upon 
 the question whether the testator could see the witnesses 
 who signed in an adjoining room. Two juries found in 
 favom- of the will, and yet the Court directed a third trial. 
 
 If you add a codicil to your will, you should call it a 
 codicil, and should execute it, and have it attested, just as 
 if it were an original will. Remember that you cannot 
 give a single additional legacy without once more going 
 through these ceremonies. 
 
 Do not make your will at intervals. If you do you 
 must execute what you have written every time you 
 leave off, and it must be attested just as if it were a full 
 disposition, if you mean to give effect to it, although 
 you should die before you finish your will. If you were 
 to wnite several testamentary instruments on the same
 
 WHEEE EE-EXECUTION OF WILL NECESSAEY. 143 
 
 sheet of paper, and sign them both, and the witnesses 
 were actnally witnesses to the signature to both, yet if 
 they signed an attestation at the end of the first instru- 
 ment, that would not render the second operative. 
 
 If you obliterate, interline, or make any other altera- 
 tion m your will after it is executed, you must re-execute 
 your will in like manner as if it were an original will ; 
 but it is only necessary that you should " sign your name, 
 and the witnesses subscribe theirs in the margm, or on 
 some other part of the will opj)osite or near to such 
 alteration, or at the foot or end of, or opposite to, a 
 memorandum, referrmg to such alteration, and written 
 at the end or some other part of the will." If you 
 neglect this direction, the alteration will not have any 
 eiSect, except so far as the words or effect of the will 
 before such alteration shall not be apparent ; for if the 
 obliteration is effectual, of course the disposition in the 
 will as it originally stood cannot be made out ; and 
 where the intention is simply to revoke, and not to sub- 
 stitute another legacy for that given by the will, no 
 evidence can be admitted to show what the words really 
 were ; but expert jjersons may be employed, and magnify- 
 ing glasses may be used in order to make out the words. 
 
 Generally speaking, any alteration should be made by 
 a regular codicil, and not by obliteration or interhnea- 
 tion. If there are any interlineations in your will 
 unattested, it will be presumed that they were made 
 after the execution of your will, and they consequently 
 will be inoperative, although parol evidence may be 
 received to show that they were made before the will 
 was executed. 
 
 A codicil duly executed will make the will speak as of 
 the date of the codicil, unless a contrary intention appears. 
 So a will or a codicil not duly executed may be rendered
 
 1 1 1 OPERATION OF CODICILS. — POWER. 
 
 valul by a later codicil duly executed, and referring 
 clearly to it, or in such a manner a.s to show the inten- 
 tion; therefore, if you were to begin your codicil, "This 
 is a codicil to my last will," and there was only one will, 
 those words would set up the will although not duly 
 executed But if you had several wills and codicils in 
 your possession, and some were duly executed and some 
 were not, and by a codicil duly executed you were 
 expressly to confinn all your wills and codicils, this 
 codicil woiUd only confinn those which were duly exe- 
 cuted ; for they by themselves would satisfy the strict 
 meaning of the words. This was decided in a contest 
 for large legacies under dispositions by the late Marquess 
 of Hertford. No doubt a harsh constniction ; but without 
 perplexing you with other instances of a strict construc- 
 tion on this head, this may serve to point out to you how 
 carefid you should be in refening carefully to any miexe- 
 cuted testamentaiy papers wliich you desii-e to render 
 valid. 
 
 Although by a codicil, duly executed, you may set up 
 a prior will, not duly executed, yet you cannot by a will, 
 though duly executed, give validity to any future codicil 
 you may make not duly executed. 
 
 I may observe to you, that if you have a power to dis- 
 pose of any property hy your will, which means a right to 
 give it to another, although the property itself does not 
 belong to you, and the wUl is required to be executed by 
 you in a particular manner, or in the presence of a par- 
 ticular number of witnesses, or nothing is said on the 
 subject, you must execute your will in exercise of the 
 power precisely in the same mode as if you were dis- 
 posing of your own property, and it is not necessary to 
 observe the mode of execution required by the power 
 itself.
 
 WILLS BY MAERIED WOMEISr OR INFANTS. 145 
 
 I shall wind up this long letter by informing you that 
 your wife cannot make a will miless of property settled 
 to her separate use, or which she has power to dispose 
 of by will, or of personal property with your consent, nor 
 can any of your children make a will, as they are aU 
 under the age of twenty-one years ; although, until the 
 late Act, an infant might have disposed by will of his 
 personal estate.
 
 146 REVOCATION OF WILLS 
 
 LETTER XIX. 
 
 I NOW propose to infonii you how you may revoke 
 your will, or revive it after you liave revoked it ; and my 
 observations will apply to codicils as well as to wills. 
 
 Your will, then, may be revoked by another will or 
 codicil executed in the maimer I have already pointed 
 out, or by some writing declaring an intention to revoke 
 it, and which nmst be executed in like manner ; or by 
 the burning, tearing, or othei-wise destroying the same, by 
 yourself, or by some person in your presence and by your 
 direction, with the intention of revoking the same. As 
 there must be an intention to revoke, if a testator, whilst 
 of unsound mind, were to destroy his will, probate would 
 be granted of the draft of the will ; and destruction of the 
 will by accident or mistake, if clearly proved, woidd not 
 defeat the gifts, if the contents of the will could be shown. 
 A man's will duly executed was found at his death with 
 the signature of his name erased, but with another like 
 signature just below where the origuial signature stood, 
 and no explanation could be furnished, but the will was 
 supported, as it was considered that the erasure was not 
 made by the testator with an intention to revoke his will 
 You nmst be content with these instances. 
 
 But then you may revoke your will by burning, tear- 
 ing, or otherwise destroying it, which enactment excludes 
 the mode which was sanctioned by the former law, of 
 cancellation, or striking the will through with a pen ; 
 therefore crossing out your name or the names of the 
 witnesses is not a revocation.
 
 BY BURNING, ETC., OE MARRIAGE. 147 
 
 But burning, tearing out, or cutting out your name 
 from the will would be a revocation, for your will could 
 not operate without your signature. The whole will 
 would be destroyed by the removal of your signature. A 
 will written in pencd would be destroyed by removing 
 the words by india-rubber ; even obliteration may amount 
 to a revocation, as where the testator obliterates his name 
 so that it cannot be made out, or if he erases it in like 
 manner with an intention to revoke. If, however, you 
 intend to revoke your will, the safer way is wholly to 
 destroy it. And if you have executed two parts of your 
 will, take care and destroy both, although the destruction 
 of one part <may, under some ckcumstances, ojjerate as 
 the destruction of both. If you throw your wiU on the 
 fire with an intention to revoke it, you should see that 
 no one takes it off before it is burnt, for unless it is at 
 least partially burnt, there will be no revocation. 
 
 There is still another act which will operate as a revo- 
 cation of your will — your marriage after the execution of 
 it, with an exception which would only perjilex you ; and 
 the same law applies to your wife, for marriage of either 
 sex operates as an immediate and total revocation of a 
 prior will. This ought to be universally known ; it is no 
 improvement on the old law. When a man marries, he 
 should immediately make a new wiU to meet the obliga- 
 tions wliich he has imposed upon himself If he really 
 mean his old wiU to stand, he must at once re-execute it 
 or declare his intention by a codicil, and, I must always 
 repeat, duly executed. 
 
 But no presumption of an intention on the ground 
 of alteration of circumstances is allowed to revoke a will. 
 
 The Civilians carried the doctrine of presumption so far 
 as to hold every will void in which the heir was not noticed, 
 on the presumption that his father must have forgotten
 
 148 MODES OF REVOCATION. 
 
 him. Fi(»ni this, as Blackstone rea.sonably conjectures, 
 hius arisen that <::rnun(lk's.s vulgar error of the necessity 
 of giving the heii- a shilling, or some other nominal sum, 
 to show that he wa,s in the testator's remembrance. The 
 pnu'tifi' is to be deprecated, as it wounds unnecessarily 
 the feelings of a disinherited child. This you may say 
 does not always happen. An assembled family, as the 
 legacy to each was read aloud, sobbed and wished that the 
 father had lived to enjoy his own fortune. At last came the 
 bequest to his heir — " I give my eldest son Tom a shil- 
 ling to buy him a rope to hang himself with." " God 
 grant," says Tom, sobbing like the rest, " that my poor 
 father had lived to enjoy it himself ! " 
 
 There are now only four modes by which a will can be 
 revoked 1. By another inconsistent will or writing exe- 
 cuted in the same manner as the original will. 2. By 
 burning, or other act of the same nature. 3. By the dis- 
 position of the property by the testator in his lifetime ; 
 for of course that leaves nothing for the will to operate 
 upon. 4. By marriage. By the 2d and 4th modes, the 
 revocation, as I have already intimated, will be com- 
 plete. 
 
 You may wish to revive your will after you have re- 
 voked it ; this can only be accomplished by the re-execu- 
 tion of it, or by a codicil duly executed, and showing an 
 intention to revive it. And therefore you should ex- 
 pres.sly declare that you intend to revive your wUl, and 
 that it shall remain in full force in like inanner as if it 
 had not been revoked. 
 
 There is a provision as to revivals of revoked wills, 
 which may puzzle you at first sight. " When any will or 
 codicd which shall be partly revoked, and afterwards
 
 REVIVAL OF REVOKED WILLS. 149 
 
 wholly revoked, shall be revived, such revival shall not 
 extend to so much thereof as shall have been revoked 
 before the revocation of the whole thereof, tmless an 
 intention to the contrary shall be shown." 
 
 Let me explain this to you. Your will is made, and 
 then by a codicil you revoke one of the legacies given 
 by the will. You then make a second codicO, by which 
 you luholly revoke the will ; lastly, by a re-execution of 
 the will, or by a codicil duly executed, you revive your 
 will, without noticing your first codicil revoking the 
 legacy : the consequence would be that the legacy would 
 stand revoked, and would not be revived, although the 
 rest of the will would be. If, therefore, in such a case 
 you desire the gift to the legatee to revive also, you 
 should exjjressly declare such to be your intention, and 
 then every part of your will would be revived. Bear in 
 mind, that these observations are confined to wills which 
 have been already revoked, for where the will has not 
 been revoked, a codicil duly executed would operate to 
 give effect, if necessary, to the prior will as of the date 
 of the execution of the codicil, unless a contrary inten- 
 tion appeared. There is one point of importance to 
 which the attention of every man shoidd be drawn. A 
 will "which shall be in any manner revoked" will not 
 be revived by the re-execution of the will, or by a 
 codicil, unless " showing an intention to revive the 
 same." Now marriage will operate as a revocation of a 
 will, and that, I suppose, will be held to be within this 
 clause. Well, a man marries after he has made his will, 
 but is wholly unconscious that his marriage has revoked 
 his will ; he subsequently to his marriage makes a codicil 
 giving a legacy ; yet unless that codicil show an inten- 
 tion to revive the will, it will remain inoperative. 
 
 No conveyance or other act by you subsequently to
 
 150 CONSTRUCTION OF WILL. — RE-EXECUTION. 
 
 the execution of your -will, in reference to any property 
 C()ni])riseil in it, except such an act as will revoke your 
 will, will prevent the operation of your will with respect 
 to such estate or interest in the pro])erty in question, as 
 you shall have power to dispose of by will at your death. 
 I must exphiin this to you : By your will you have 
 given your estate in Sussex to one of your sons ; now 
 if you were, after your will, to convey that estate to 
 another of your sons for his life, the estate would still, 
 but subject to this life-es+ate, go under your will to the 
 son to whom you de\dsed it, without its being necessary 
 for you to re-execute your will. 
 
 Your will, I must tell you, will be construed with 
 reference to the real and personal estate comprised in 
 it [that is, with reference to any gift in it of real or 
 personal estate], to speak and take effect as if it had 
 been executed immediately before your death, unless a 
 contrary intention appear by your will. And, finally, 
 every will re-executed, or republished,* or revived by 
 any act, will, for the purposes of the Act of Parliament, 
 be deemed to have been made at the time at which the 
 same shall be so re-executed, republished, or revived. 
 All these are excellent provisions, and calculated to carry 
 your testamentary intentions into effect. 
 
 * This word may require explanation. Former!}' a will of real estate 
 was required to be published ; when new force was given to it — by re-exe- 
 cution, for example, it was republished. But publication had no precise 
 meaning, and the necessity of it was taken away by the late Act. As, 
 therefore, there is no longer a publication, there can, properly speaking, 
 be no republication, and the framers of the Act supposed that the 
 latter word would no longer be used ; but so inveterate is habit, that the 
 expression has found its way into the Act itself.
 
 WHAT PKOPERTY MAY BE DISPOSED OF. 151 
 
 LETTER XX. 
 
 This is my last Letter on the subject of Wills. I have 
 already pointed out to you how your will should be 
 executed, and how it may be revoked, and how revived 
 after revocation. I propose now to point out to you 
 the operation which, by statute law, various dispositions 
 in your will will have. There are enactments as to the 
 effect of devises to trustees, to which I do not think it 
 necessary to call your attention. 
 
 1. You may dispose by will of all your real and personal 
 estate to which you may be entitled at the time of your 
 death — property of every description, including copy- 
 hold and customary lands, although you may not have 
 been admitted to them, or have not surrendered them 
 to your will. And very general descriptions will pass 
 copyholds and leaseholds, as well as freeholds. A 
 general devise or bequest, too, will pass any real or per- 
 sonal estate which you have power to appoint in any 
 manner you think proper ; that is, to whom you think 
 proper, and therefore a power to appoint to your 
 children would not fall within this description. In both 
 cases, however, as to copyholds and leaseholds, and as to 
 property over which you have a general power, the pro- 
 perty will not pass if a contrary intention appear by 
 your will. You will observe, that if you devise all your 
 real property generally, any subsequently-acquired real 
 estate will pass by it without the necessity of any re- 
 execution. If you intend to confine the operation of 
 your gift, you should express that intention.
 
 l.')2 CIFT OF EXPECTANCIES. — SPECIFIC GIFTS. 
 
 Yoli may devise and bequeath any of your expectan- 
 cies, and if tliey dro}) in in your lifetime they will pass 
 by your will. Whatever, therefore, you may expect as 
 heir-at-law, or next of kin, or devisee, or legatee of any 
 livinc; person, will j)ass by your will, if you bequeath 
 it, and live to be entitled to it ; and as to one interest, 
 as I will presently point out to you, although you do 
 not survive the testator. Although you have no real 
 estate when you make your mil, yet if you give all your 
 real estate by it, any estate which you subsequently 
 acquire by purchase or otherwise will pass by it without 
 the necessity of a re -execution. In trusting to your 
 will passing, without your re-executing it, any subse- 
 quently acquired property, be careful that the words are 
 sufficient to pass it : for where an estate was devised 
 by its name, " All my Quendon Hall estates in Essex," 
 after-acquired property, although the testatrix had con- 
 tracted to buy part of it before the will, and most of it 
 consisted of small additions to the principal estate, was 
 held not to pass, for the Court could not think that the 
 testatrix intended to include it. 
 
 Do not, where it is not necessary, give any personal 
 chattel specifically. This you cannot avoid, if you wish 
 to give a particular watch, for example ; but if you 
 should sell or give it away, of course your bequest be- 
 comes inoperative, and no other watch that you may 
 acquire can supply its place. In bequeathing your 
 stock, give it generally, as all your funded property, or 
 all your three per cents, or the like, and not the funds 
 or three per cents which you have now in your name. 
 It seems that if, having a brown horse, you were to be- 
 queath it, and then to sell it and buy another brown 
 horse, the latter would not pass. 
 
 If you devise an estate and afterwards sell it, the
 
 LAPSED DEVISES. — RESIDUE. 153 
 
 devise, as I have stated to you in Letter III., will be- 
 come revoked : should you re-purchase the same estate, I 
 recommend you not to trust to your fonner gift, but to 
 re-execute your will, or rather to execute a codicil, and 
 confirm the gift in your will. I can give you an in- 
 stance which wUl convince you how dangerous it is to 
 deal with the property given by your will, without 
 ascertaining what effect the disposition will have on the 
 previous gift. Under a settlement on a marriage, the 
 husband, in the event which happened of a failure of 
 issue of the marriage, had a power to appoint the pro- 
 perty to whom he pleased ; and there was the usual 
 power of sale in the settlement with the consent of the 
 husband and wife (the nature of which power I have 
 explained to you in Letter XVII.) The husband, 
 by his will, appointed his interest in the estate to 
 trustees to be sold, and gave the produce to persons 
 named in his will. The estate itself was afterwards sold 
 under the power in the settlement, and was conveyed to 
 the purchaser, and then the husband died, and it was 
 held that the gift in the will was void, and could not 
 affect either the purchase-money of the settled estate, or 
 the new estate to be purchased with it. 
 
 If formerly you gave any part of your real estate by 
 your will which lapsed, as it is termed, that is, failed, by 
 the death of the devisee in yom' lifetime, or the gift was 
 for an iUegal object, the devise failed altogether, and the 
 property would go to your heir-at-law, although there 
 was a residuary devise in your will, or, in other words, 
 a devise of all the residue of your real estate to a person 
 who survived you. As to personal estate, the law was 
 always otherwise, and lapsed legacies fell into the resi- 
 due as they still do. And now, by the new law,* 
 • 1 Vict., c. 26.
 
 15-4 CAUTIONS IN PROVIDING 
 
 residuary devises of real estate are placed on the same 
 foDtinc; as rcsiduaiy bequests of personal estate ; there- 
 fore the residuaiy gift of the real estate would caiTy to 
 the residuary devisee an estate which lapsed by the 
 death, in the lifetime of the testator, of the person to 
 whom it was devised. So where a gift is to a charity of 
 an estate, which is void, the estate will go to the resi- 
 duaiy devisee. But tliis will not be so, if a contrary 
 intention should appear by the will. It is not necessary 
 for the residuary devisee to show that the testator in- 
 tended, in the given event, that the estate should 
 pass as part of the residue ; but it is necessaiy for 
 the heir-at-law, resisting the claim of the residuary 
 devisee, to show, that by the declaration of the testator 
 in the will, or from the frame of the devise, such was 
 Qiot his intention. It is seldom that any testator has 
 any such intention. In making your will, if you do not 
 ijitend your residuaiy devise to have this oj^eration, state 
 so distinctly. If you do intend it, then see that your 
 residuary devise is open to no cavil, Ijut will pass all the 
 residuary estates of which you can dispose at your 
 death. 
 
 No hatred is more intense than that which arises 
 in a man's family after his death, where, under his 
 will, the rights of each member of it are not separate 
 and strictly defined. None is more afi&ictmg or degrad- 
 ing to our common nature. We weep over the loss of 
 our relative, and we quan^el over the cUvision of his pro- 
 perty. Be careful not to make an unwise or ill-con- 
 sidered disposition, particularly of your residue, upon 
 which the contest generally arises. As you love your
 
 FOE CHILDEEN. — EESIDUE. 155 
 
 family, pity them — throw not the apple of discord 
 amongst them. If you leave to every one separately 
 what you desire each to have, and give nothing amongst 
 them all which requires division, and therefore selection 
 and choice, peace and good-will will continue to reign 
 amongst them. 
 
 Still further : in disposing of your residue, neither 
 overrate nor underrate its value. It is a duty which 
 you owe to yourself, and to those who are to succeed 
 you, carefully to ascertain the value of your property. 
 I know an instance of a person who succeeded to a great 
 estate, simply by declining a particular legacy, in com- 
 mon with the general legatees — the mere gift of the 
 residue would satisfy him — he begged the testator would 
 not consider him until every other claim was satisfied ! 
 The residue greatly exceeded in value the aggregate 
 amount of all the legacies. 
 
 On the other hand, it has frequently happened that a 
 man over-estimating the value of his property, or not 
 allowing for its depreciation, has given large legacies to 
 all his children but one, and has reserved his residue for 
 that one. At his death it has turned out that every 
 one was well provided for except the chief object of his 
 bounty, his residuary legatee. You can easily avoid this 
 by giving to the child whom you mean to make your 
 residuary legatee, equally with the rest, what you wish 
 it at all events to possess, and then you can give to this 
 child the residue. If your funds should fail, every 
 legatee would have to abate in proportion, which would 
 be what you intend. If there should be enough to 
 answer all the legacies, the child taking the legacy and 
 the residue would yet not take more than you intended. 
 If you reallj'' mean one child to take its chance as to
 
 1'>G LAPSE. — ESTATE TAIL. 
 
 the value of the residue, whether more or less, then of 
 course my observations would not apply. 
 
 By the new law, an estate in fee will pass to a devisee 
 without words of inheritance, just as a personal chattel 
 will. If you give a man a horse, he takes it as his 
 ;il)s(ilute ])roi)erty; and now, if you give him a house, 
 lie will take all youi- interest in it without any further 
 words, unless a contrary intention appear by your will. 
 To prevent such a constniction, you should still, as of 
 old, give the house to the devisee, his heirs and assigns, 
 where you mean him to take the fee. If you intend 
 him to take it for life only, you should not give it to 
 him generally, but expressly foi' his life ; and if you 
 wish the devisee for life to have a power to cut timber, 
 add, " without imjieachment of waste." 
 
 If you give a country house, carefully sj)ecify what 
 closes or lands you mean to go with it. 
 
 If you give an annuity charged on your real estate, 
 you must still add words of inheritance to the gift ; for 
 example, " to him, his heirs and assigns," if you intend 
 the devisee to take it beyond his life. 
 
 I must still bring two more provisions of the new 
 law to your notice. Formerly, if you had devised your 
 estate, for example, to one and the heir.s-male of his 
 body, which, as I have explained to you in Letter X., 
 would create an estate in tail-male, and the devisee had 
 died in your lifetime, the devise would have lapsed or 
 failed altogether, although he left male issue living at 
 his death. This never could be the intention, and it is 
 now happily j^revented. Therefore, where a contraiy 
 intention does not appear by the will, a devise of an 
 estate tail wiU, although the devisee die in the testator's
 
 LAPSE. — GIFT TO CHILDKEN, ETC. 157 
 
 lifetime, take effect as if his death had hapj)ened imme- 
 diately after the testator's death, or, in other words, his 
 issue, who would be inheritable under such entail, accord- 
 ing to the words, will take the estate as tenant in tail. 
 
 The other provision is, that if you should give, by 
 your will, any real or personal estate to any of your 
 children or grandchildren, for any interest which will 
 not determine at or before the death of such child or 
 grandchild, and he or she shall die in your lifetime leav- 
 ing issue, and any such issue shall be living at your 
 death, the gift will not lapse, but will take effect, as if 
 the death of the child or grandchild had happened 
 immediately after your death, and therefore will form 
 part, according to its quality, of the real or personal 
 estate of the deceased child or grandchild. But this 
 will not be so, if a contrary intention appear by the will 
 You should therefore consider whether you mean your gift 
 to your children, and your children's children, to take 
 effect if they die in your lifetime ; and if you do not, you 
 must say so. The provision, you will observe, does not 
 apply to gifts which are not to endure beyond the life 
 of the legatee ; for of course in those cases there is an 
 end of the gift whenever the legatee dies, whether before 
 or after you. But keep in mind that the general gift in 
 your will to your child, for example, will belong to him 
 if you leave it unrevoked, and will pass by his will 
 although he die in your lifetime, and will not belong to 
 the children whose existence at your death prevented the 
 legacy from lapsing. 
 
 The Act* which abolishes the old jurisdiction, and 
 
 establishes a new Court of Probate, with District Courts 
 
 and a limited jurisdiction in the County Courts, provides 
 
 not only for the custody of your will after your death, 
 
 * 20 & 21 Vict., c. 77.
 
 l.'iS DEPOSITORY FOR WILLS. 
 
 liut directs that convenient depositories shall be pro- 
 vided, under tlie control of the Court, for all such wills 
 of living- persons as shall be deposited therein for safe 
 custody ; and that all persons may deposit their wills, 
 in such depository, upon payment of such fees and 
 under such regulations as the Judge of the Court shall 
 by order direct. If you are likely, from time to time, 
 to alter your ■\\dll, I shoidd advise you not to deposit it 
 in this depository. If I were a devisee of a living 
 testator, I should like to hear that the will was in the 
 new depository. The expense and difficulty attending 
 tlic getting a will out of this custody, would deter 
 many men from capriciously altering their donations.
 
 CREATION OF TRUSTS. 159 
 
 LETTER XXI. 
 
 Theee are few social questions of more importance 
 than that which is the subject of this Letter — the relation 
 between trustees and their cestuis que trust, as they are 
 termed, or the persons for whom they are trustees. Pro- 
 perty could not be enjoyed in the Wiiy in which we, hus- 
 band and wife, parents and children, succeed to it, unless 
 men could be prevailed upon to assimie the office and 
 undertake the duty of trustees. It is a true act of friend- 
 ship to accept an onerous trust. In the creation of a 
 trust, the person whose property is to be the subject of 
 it, has to weigh well how far he can confide in the inte- 
 grity of the proposed trustee — more especially where 
 stock or railway shares, for example, are to be transferred 
 into his name ; and to guard as well against dishonesty 
 as against death, or an inability or unwiUingness to con- 
 tinue a trustee, more than one is generally appointed, 
 with a power, in case of necessity, of appomting a new 
 one. On the other hand, the proposed trustee has to 
 reflect upon the liabilities which he will incur. The 
 harsh rules of equity in making him answerable as for a 
 breach of trust, where he has acted with perfect good 
 faith, and according to the best of his judgment, although 
 not strictly according to the trust, or perhaps not in 
 accordance with some rule of equity of which he was 
 ignorant, and upon which his trust-deed would not en- 
 lighten him, are calculated to alarm him ; he may well 
 hesitate, for he can hardly have lived long in society 
 without meeting with some family whose prospects in 
 life have been destroyed by an iimocent error of the
 
 160 CONDUCT OF BENEFICIAL OWNER. 
 
 head of the liouse in the execution of a trust. He 
 will find, too, that unless his cestuis que trust are, 
 after the creation of the trust, more reasonable than the 
 generality of mankind, they will want to deal with the 
 trust - pro])erty as if it belonged to them absolutely, 
 and not merely as bound by the trust. Some men, 
 although only tenants of life of the fund, desire to 
 si)eculate with tlie trust-money or stock, just as if it 
 were not .settled ; and if the trustee refuse to allow this, 
 a coolness ensues between the parties, which threatens 
 to sever the friendship between them. On the other 
 hand, if the trustee allow this perpetual dealing with the 
 trust-fund, although it may be strictly legal, it places the 
 fund, and consequently himself, in constant danger. The 
 money must be intrusted to bioker.s, agents, bankers, 
 solicitors, and may inconsiderately, or unavoidably, be left 
 in their hands for too long a period, or may be impro- 
 perly retained, or even wasted or misappropriated by 
 them, and then would arise the question of the liability 
 of the trustee. He may be a great sufferer in the execu- 
 tion of his trust, but he cannot be a gainer, for equity 
 wiU not allow a trustee to pay himself for his trouble, or 
 in any manner to derive any benefit from the funds with 
 which he is intrusted. And Parliament has prohibited 
 him from voting in respect of his trust-estate, and vested 
 the right in the cestui que trust in actual possession, or 
 in the receipt of the rents, though he may receive them 
 through the hands of the trustee.* Such considerations 
 as these make prudent men hesitate to accept the office 
 of a trustee ; yet every man of property, in his turn, 
 requires the offices of a friend, and thus relatives and 
 friends are constantly in a manner forced to become 
 trustees. But there is a growing disinclination to accept 
 
 • 6 Vict., c. 18. This was quite right, but it illustrates the manner in 
 which every benefit is denied to a trustee.
 
 PAYMENT OF TEUSTEES. 161 
 
 the office, and several modes of avoiding the difficulty 
 have been suggested or attempted. 
 
 One plan is, that a trustee shall be paid for his services, 
 and then it is said that he cannot object to the Uabilities 
 which he will incur. Now this is altogether repugnant 
 to our habits and feelings. The office is to be filled 
 by a friend with whom we can communicate freely and 
 confidentially, as with one who feels an interest in our 
 family and its prospects. A paid trustee would stand in 
 a difierent character, and the money allowed to him, in 
 many Distances, would find its way into the pockets of an 
 agent. We should have to deal with him at arm's-length. 
 We should dread his visits, or his journey to town, know- 
 ing that they would be charged for ; every letter would 
 form an item in a bill. A per-centage on the fund, which 
 would be a heavy tax in all cases, would be accepted, in 
 many without any feehng of responsibility to perform 
 the duties of the office. If a man is to be paid, it must 
 be for the duty actually performed, and that would ren- 
 der it necessary to make it a matter of charge and ac- 
 count. What man of right feeling would accept the 
 office upon such terms ? Undoubtedly there are men 
 who, if payment were the rule, would make a trade of 
 the office, and, like other tradesmen, endeavour to attract 
 custom to their own mill. 
 
 To meet these objections, it was proposed by the South 
 Sea Company, upon its dissolution, and also by a private 
 company, to obtain powers from Parliament to enable 
 them to carry on the business of trustees and executors, 
 for which, of course, they were to be paid. They were 
 defeated in this attempt. The trade of a Trustee ! The 
 business of an Executor ! Fancy it written over a shop- 
 door. If established, of course, the most rigid construc- 
 tion would be put upon trusts, so as to render the com- 
 
 L
 
 162 rUBUC COMPANIES. — TRUSTEES, 
 
 pany safe, witli constant references to counsel at the ex- 
 pense (if the parties. Expense ■would be certain — benefits 
 doubtful. Property would be promptly accepted, but 
 not parted with without hesitation and rigid examina- 
 tion of proofs, leading to delay, and not unfrcquently to 
 a Chancery suit, the costs of whicli would undoubtedly 
 fall on tlie claimants. Looking at the ordinary iides of 
 equity in regard to the disposition of trust-funds, such 
 a company could not exist without daily committing 
 breaches of trust — for example, if £1000 three per cents 
 of yours were to be transferred to them upon certain 
 trusts, that sum would be added to their other like stock ; 
 there would be no earmark ; the Bank would take no 
 cosTiisance of the trusts ; and all the stock of the com- 
 pany would stand in their name as one fund, although 
 it might be composed of sums belonging separately to 
 one hundred different families. When, therefore, they 
 made any sale, no one could distinguish whether it was 
 yours or another man's stock Their own accounts 
 would be kept separately, but that would not affect the 
 actual dealing with the funds. Again, if £1000 in money 
 were paid to the company upon trust to be invested, 
 although it might in due time be invested, yet in the 
 mean time it would be paid into their bankers, and 
 form part of their general cash, and would unavoidably 
 be used for their benefit ; yet no private trustee could 
 venture thus to deal with his trust-monies. But although 
 these projects did not succeed, yet a private company of 
 high character has been formed for the purpose of exe- 
 cuting trusts and executorships, but limited. Such 
 associations are not only open to aU the objections which 
 I have pointed out, but their limited liability would 
 deter a prudent man from intrusting them with his for- 
 tune. A private trustee is liable to the extent of all his
 
 PUNISHMENT OF FEATJDULENT TEUSTEES. 163 
 
 means for any loss to the fund by his mismanagement, 
 or breach of trust. And the examples of failures of 
 joint-stock bauldng companies, even where the share- 
 holders are liable to the full extent of their means, are 
 too recent and alarming not to make men hesitate to rely 
 upon any company as their trustees or executors. 
 
 How, then, you will probably ask, can we best support 
 this important relation with safety to both parties. Par- 
 liament has made fraudulent trustees answerable crimiti- 
 ally for their acts. As the bill was originally framed, I 
 could not have agreed to it, as it appeared to me to expose 
 honest trustees to new dangers ; but as it ultimately 
 passed, I supported it willingly, and I can assure you that 
 neither you nor any other trustee acting with common 
 honesty need fear its provisions. But, ac the same time, 
 while we punish dishonest trustees, we ought to relieve 
 honest trustees from such of the rules in equity as press 
 too hardly upon them. This I attempted to do last 
 session, and the bill for that purpose passed the House of 
 Lords, but was postponed in the House of Commons at 
 the end of the session : no doubt that or some better 
 measm-e for the relief of trustees will be passed in this 
 session. I will by-and-by explain these measures to you. 
 With these, and common precautions, I hope that the rela- 
 tion of trustee and cestui que trust may still be main- 
 tained without danger to the former, and with safety and 
 benefit to the latter. 
 
 But I shall conclude this Letter with some advice how 
 to avoid the dangers to which a trusteeship or executor- 
 ship may expose you. Now, first, as to the trusts which 
 you have already accepted. Without alarming your 
 friends for whom you are a trustee, quietly look into the 
 trusts, which you can generally manage without the aid 
 of a solicitor, and see that the funds are secured and in-
 
 164 OVERPAYMENTS TO 
 
 vested accoi-ding to the trusts, and that you are not pay- 
 ing more to a tenant for life than he is entitled to under 
 the trust. This hitter point is all-important, for it fre- 
 quently happens that a trustee incurs a serious loss by 
 paying to a tenant for life a larger income than equity 
 would allow him. If, therefore, you are paying to any 
 tenant for life the rent of a leasehold estate, or interest 
 upon any fmid yielding more than 3 per cent, ascertain 
 that the leasehold ought to remain unsold, and the rent 
 paid to the tenant for life, and that the funded property or 
 money othei'wise secured ought to remain in its present 
 investment, and the interest paid to him. If the fund is 
 a 3 per cent stock, you may safely go on paying the in- 
 terest to the tenant for life without inquiry ; for a 3 per 
 cent stock is that which a comt of equity always selects 
 and approves of. 
 
 I wiU show you the danger to which you may be 
 exposed in paying a large rate of interest to a tenant for 
 life. An officer in the East Indies advanced .£'2000 
 to the Company on one of its loans at 10 per cent, re- 
 deemable at the end of ten years : he returned shortly 
 aftei-wards to England, and ordered his interest on the 
 d(?2000 to be paid to him in London, which he had 
 power to do ; he died in a short time, having bequeathed 
 his property to a trustee to convert it into money and 
 invest it in the usual way, and to pay the interest to his 
 wife for life ; and, after her death, to pay the principal 
 to another lady. After his death, the tmstee, finding 
 the fund not payable for some years to come, although 
 it might have been sold, followed the testator's example, 
 and, leaving the money midisturbed, paid the 10 per 
 cent to the tenant for life. In 1813 the loan was paid 
 off by the Company, and the money was invested by the 
 trustee in the 3 per cents, and it so happened, by a fall
 
 TENANT FOE LIFE. 165 
 
 in the funds, that with the money the trustee was enabled 
 to purchase ^£'826 stock beyond what would have been 
 obtained had the trustee, as he ought in strictness to have 
 done, sold the loan at the end of a year after the tes- 
 tator's death, and then invested the money : so that, in 
 consequence of his neglect, the fund was increased by 
 upwards of ^800 stock. In 1820 the lady, then entitled 
 to the fund, who had not before taken the trouble to 
 inquire about the fund, filed a bill against the trustee 
 for a breach of trust, and he was decreed to pay to her 
 all that he had paid to the tenant for life beyond 3 per 
 cent on the loan, amounting to upwards of .^'lOOO, 
 and the Court positively refused to allow him to set off" 
 the £826 stock, the benefit which she obtained in con- 
 sequence of the very act — viz. the delay in converting 
 the fund, of which she complained. You will no doubt 
 think this not very equitable, and one object of my bill 
 is to prevent such an act of injustice ; but this case will 
 serve to show you the danger to which, as a trustee, you 
 are exposed, if you do not convert property in due time. 
 
 Do not lay out your trust-money on mortgage, unless 
 you have power to do so ; for if you do, and there should 
 be a loss, you might be made responsible. The usual 
 mode of authorising a loan on mortgage is to empower 
 the investment of it "on real securities." 
 
 Consider yourself always responsible for the receipt or 
 payment of the trust-money. See, therefore, that the 
 money is paid to the right hand, and in like manner, when 
 paid off, receive it yourself Upon advancing money upon 
 mortgage, personally pay the money to the mortgagor, 
 and see the deed properly executed ; when it is paid off, 
 attend and receive the money at the time of executing 
 the reconveyance. There is danger in executing the deed 
 and signing the receipt without at the same time receiv-
 
 H\Ct SAFETY OF TRUST-MONEY. 
 
 ing the money. This precaution will no doubt give you 
 trouble, but it may preserve you and your family from 
 litigation and licavy loss. You will be safe if, pending 
 a transaction for the investment of the money, you pay it 
 to regular bankers, though they should fail ; but never pay 
 tnist-money into your general account, but to a separate 
 account, as trustee ; and be scrupulous in drawing upon 
 that account for the trust only. You would expose 
 yourself to liability to interest or profit if you used the 
 money as your own. 
 
 Never allow the money to be received, or, if that can- 
 not be avoided, to be retained by brokers, agents, or soli- 
 citors. If you have a co-trustee who is a solicitor, unless 
 you repose confidence in him, you should, upon lend- 
 ing the money upon any security, employ a solicitor of 
 your own. It is only the other day that one trustee sold 
 the trust-stock and gave the money to his co-trustee, 
 a solicitor, to invest upon a mortgage to be obtained 
 from a client of the co-trustee's ; the laitQT fraudulently 
 obtained a mortgage to both for the money from the 
 client, and the mortgage was set aside as against both 
 the trustees, so that the honest trustee had been a party 
 to an act by which the money was lost. You may be 
 safe in allomng your co-trustee to receive the trust-money, 
 if you join in the receipt of it only for the sake of con- 
 formity, but it is dangerous to do so, and it is always 
 better to have it paid into a banker's you can rely upon 
 in your joint names. If you permit your co-trustee to 
 receive it, you must look sharply after it, for you will not 
 be absolved from seeing that it is in due time applied 
 according to the trusts. Where one of three trustees was 
 a solicitor, and acted in the trust as solicitor for himself 
 and the other trustees, and was allowed to receive the 
 purchase-money for an estate which they sold, and for
 
 ACTING UNDEE COUNSEL S OPINION. 167 
 
 which they all gave a receipt, it was held that the solici- 
 tor received the money, not in that character, but in the 
 character of trustee. 
 
 In a case of real difficulty, you should be careful how 
 you act under counsel's opinion, for if you are wrongly 
 advised, and act accordingly, you will be responsible. 
 And now, as I shall explain to you in my next and last 
 Letter on this subject, you may in a summary, and com- 
 paratively with former proceedings, an inexpensive mode, 
 obtain the opinion of the Court of Chancery on the 
 rights of the parties. Following literally the words of 
 your trust will not always be safe : for instance, although 
 you were empowered to lend the trust-money on real or 
 personal security, and are declared not to be responsible 
 for any loss, yet it would not be safe to lend the money 
 to a trader, and of course not to any one in doubtful cir- 
 cumstances, to your knowledge. 
 
 It is desirable also that you should ascertain that the 
 securities vested in you have had legal validity given to 
 them as far as you can insure it. Upon a marriage, a 
 mother assigned an unregistered judgment to a trustee 
 for her daughter for life, and the judgment had remained 
 unregistered about a year and a half before it was thus 
 assigned ; now to give full effect to the judgment, it ought 
 to have been registered. The trustee naturally left the 
 security as he found it, and a loss having been sustained 
 by the non-registry of it, he was compelled to make it 
 good. This shows the necessity of requiring, when you 
 accept a trust, all the securities vested in you to have 
 every legal validity given to them of wliicli their nature 
 admits. Of this you cannot be a judge, but you should 
 impress the necessity of this step on your solicitor. 
 
 The advice which I have given to you in your charac- 
 ter of a trustee will apply equally to your conduct in the
 
 I (18 FUNERAL EXPENSES. 
 
 office of an executor. But in tlie latter character, you 
 must 1)0 careful in your expenditure on the funeral, for 
 if you are not careful, and the assets run short, you may 
 iiave to pay the greater portion of them yourself. You 
 should, of course, see whether the testator has himself 
 iriven directions in his will about the nature or expense 
 of his funeral, which should be complied with as far as 
 his projxTty will justify a compliance vnth his wishes. 
 You should be careful not to leave any money outstanding 
 upon personal security — note of hand or bond — for 
 although the testator himself lent it upon that security, 
 and so let it remain, yet it will be your duty to enforce 
 payment of it : nor can you justify neglecting to bring 
 an action for a debt where there is a probability of its 
 being paid. You shoiild see that rents to which, as 
 executor, you are entitled, are duly brought into your 
 account : you cannot excuse yourself by allowing one of 
 the cestuis que trust to act as collector. 
 
 It is not my object to point out to you how the 
 assets or property of the testator are to be disposed of, 
 for all that I could explain to you within the compass 
 of my undertaking is sufficiently known to you, and 
 to all men ; and for anything beyond that, you must 
 necessarily act under legal advice. But there is one 
 difficulty to which I must advert. When the debts are 
 all paid, as far as you can ascertain by advertisements 
 and inquiries, the legatees or next of kin will require 
 the residue to be paid to them. You will, of course, be 
 entitled to an indemnity against any demand which 
 still binds you ; for example, future rent under a lease to 
 the testator. But you will be liable to any creditor who 
 remains unpaid, although you advertised fully, and he 
 brought in no claim until after you had paid over the 
 residue to the legatees or next of kin. You may have
 
 PAYMENT BY EXECUTOR OF EESIDUE. 169 
 
 done all that the Court of Chancery would itself do, if a 
 bill were filed to have the assets administered by the 
 Court, in which case payment, with the sanction of the 
 Court, to the legatees or next of kin, would free you from 
 all liability to any unpaid creditors ; and yet the Court, 
 if you act on your own authority, will compel you to pay 
 the unpaid creditors. This, as the law stands, renders it 
 necessary that you should, where there is any reason to 
 suj)pose that there are any outstanding debts, either act 
 under the direction of the Court, or require a satisfactory 
 indemnity from the persons to whom you pay the residue. 
 
 I have only to caution you not to pay any money to 
 any person under a power of attorney from the person 
 entitled to receive it from you, until you are satisfied 
 that he is alive when you make the payment, which, no 
 doubt, it will often be difficult if not impossible to prove. 
 But if he should have died before you pay the money, 
 you may be compelled to repay it : for this, however, I 
 hope to find a remedy. 
 
 Where a pecuniary or residuary legatee is abroad, an 
 executor or administrator may pay the legacy or residue, 
 after deducting the duty, into the Bank, with the privity 
 of the accountant-general of the Court of Chancery, by 
 whom it wiU be invested in the 3 per cents for the 
 legatee, who may obtain it upon a summary application 
 to the Coiurt of Chancery.* Or a receipt for it may be 
 signed abroad, and stamped, within twenty-one days after 
 it is received in this country, -f- and can then be acted 
 upon by arrangement between the parties. 
 
 * 36 Geo. III., c. 52. t 48 Geo. III., c. 149.
 
 170 PUNISHMENT OP 
 
 LETTER XXII. 
 
 I HAVE already told you that a legislative power has 
 been i^iveTi to our criminal couits to punish fraudulent 
 trustees. The enactment is, " that if any person, being 
 a trustee for the benefit, either wholly or partially, of 
 some other person, or for any public or charitaV)le pur- 
 pose, shall, ivith intent to defraud, convert or appropriate 
 the same, or any part thereof, to or for his own use or 
 purposes, or shall, ivith intent aforesaid, otherwise dis- 
 pose of or destroy such property, or any part thereof, 
 he shall be guilty of a misdemeanour;" but no prosecution 
 for the offence is to be commenced without the sanction 
 of the Attorney-General, or, if the office be vacant, of the 
 Solicitor-General* If any civil proceeding shall have 
 been first taken against the trustee, then no person who 
 shall have taken such civil proceeding can commence any 
 prosecution under the Act, without the sanction of the 
 comt or judge before whom it has been laid or shall 
 be pending. 
 
 This provision applies only to a trustee on some ex- 
 press trust created by some deed, will, or instrument in 
 writing ; but it includes the heir and personal represen- 
 tative of any such trustee, and also all executors and 
 administrators, liquidators under the Joint Stock Cora- 
 ])anies Act, and all assignees in bankruptcy and in- 
 solvency. 
 
 Tlie jpropeHy protected by the Act includes every 
 
 * This seems to be the meaning of the statute, but it is obscurely 
 worded.
 
 FRAUDULENT TEUSTEES. 171 
 
 description of real and personal property, goods, raw or 
 other materials, money, debts, and legacies, and all deeds 
 and instruments relating to the right to any property, 
 or giving a right to receive any money or goods, and 
 also includes not only such real and personal property 
 as may have been the original subject of a trust, but 
 also any real or personal property into which the same 
 may have been converted or exchanged, and the proceeds 
 thereof, and anything acquired by such proceeds. 
 
 The same guilt is attached to any banker, merchant, 
 broker, or agent intrusted for safe custody with the pro- 
 perty of any other person, who shall, with intent to de- 
 fraud, sell, negotiate, transfer, pledge, or in any manner 
 convert or appropriate to or for his own use such pro- 
 perty, or any part thereof 
 
 In like manner, any person intrusted with any power 
 of attorney for the sale or transfer of any property, who 
 shall fraudulently sell or transfer, or otherwise convert 
 such property, or any part thereof, to his own use or 
 benefit, will be guilty of a misdemeanour. 
 
 And any person receiving any chattel, money, or 
 valuable security, which shall have been so fraudulently 
 disposed of, as to render the party disposing thereof 
 guilty of a misdemeanour under the Act, hioiving the 
 same to have been so fraudulently disposed of will be 
 guilty of a misdemeanour. 
 
 Tlie punishment of a guilty person is at the discretion 
 of the Court — penal servitude for three years, or such 
 other punishment by imprisonment for not more than 
 two years, with or without hard labour, or by fine, as the 
 Court shall award. 
 
 Persons are bound in all civil courts to answer fully, 
 and make a complete discovery ; but their answers cannot 
 be used against them in proceedings to pmiish them
 
 172 PAYMENT BY TRUSTEES OF FUND 
 
 under the Act. No legal or equitable remedies against 
 the WTongdocr are to be impeached by his conviction, 
 or any proceeding under the Act ; but his conviction 
 cajinot be received in any action or suit against him ; 
 nor will any agreement by, or security given by, any 
 trustee, having for its object the restoration or repay- 
 ment of any trust-property misappropriated, be preju- 
 diced by the Act. 
 
 This important statute cannot be too generally circu- 
 lated. Whilst it inflicts a severe punishment on a 
 fraudulent tnistee, it miards against a malicious or un- 
 founded prosecution, and enables all men to prosecute 
 any banker, merchant, broker, attorney, or agent who 
 shall act fraudulently with regard to tmst projierty. 
 There are other important provisions, relating principally 
 to directors, &c. of corporations and public companies, 
 over which they would do well " to ponder and pause," 
 but which are not jiertinent to the objects of this cor- 
 respondence. 
 
 On the other hand, Parliament has provided for the 
 relief of trustees where they are desirous of being relieved 
 from the responsibility of administering their trust- 
 funds.* Under this provision all trustees, executors, 
 administrators, or other persons, or the major part of 
 them, may, in a smnmary manner, and without filing a 
 bill, pay the trust-moneys, or transfer the funds into the 
 Court of Chancery ; and the Court is empowered in a 
 summaiy way to direct the application of the money or 
 funds upon the application of the parties entitled. But 
 the Court may, if they deem it necessary, direct a suit 
 to be instituted for the administration of the trusts. 
 Power is given to the Court to enable the majority/ of 
 the trustees, &c. to pay or transfer the money or funds 
 
 * 10 & n Vict., c. 96 ; 12 & 13 Vict, c. 74.
 
 INTO THE COTJET OF CHANCEEY. 173 
 
 into Court, if, upon a petition presented under the Act, 
 it shall appear that for any reason the concurrence of 
 the others of them cannot be had. 
 
 If the relief thus aflForded to a trustee should be 
 abused, the Court has power to visit him with costs. 
 No one who has accepted a trust should wantonly resort 
 to this mode of getting rid of it. When the fund is 
 paid into Court, the trustee has no longer any power 
 over it ; and although he might have withheld the fund 
 until his accounts were settled, yet after payment of it 
 into Court, he cannot obtain an order to stop the pay- 
 ment of it to the person entitled, although the latter 
 intends to file a bill against the trustee for an account 
 beyond the money paid into Court. 
 
 If the trustee act properly, he will be entitled to his 
 costs ; of course he is entitled to have his accounts 
 settled, and a release or discharge given to him. If 
 that is refused, or there is any dispute between the 
 parties entitled to the fund, or the like, he may safely 
 pay it into Court under the Act. Where there is a 
 dispute as to the amount due to him, and he pays what 
 he considers the right sum into Court, he does so at the 
 peril of costs, and of having a bill filed against him by 
 his cestui que trust for an account. The trustee may 
 himself file a bill for an account and a release, although 
 this is a step which is seldom necessary or advisable. 
 
 By another Act* executors and administrators, and 
 trustees, are empowered to join with all other parties 
 interested in taking the opinion of the Cornet of Equity 
 on a special case stated, and in acting upon the decree 
 of the Court, without the property being administered 
 by the Court. This provision was well calculated to 
 save expense and time, but it has of late not been much 
 
 * 13 & 14 Vict., c. 35.
 
 174 SPECIAL CASE. — CHARITIES. 
 
 resorted to, inasmuch as all parties must concur in the 
 case as stated, and they are seldom agreed upon the facts. 
 
 And the Court is authorised, upon the application of 
 executors or administrators, after the lapse of a year 
 from the death of the deceased, by motion or petition, 
 of course, to take an account of the debts, and to provide 
 for the payment of contingent debts ; and when any 
 other debts found to l)e due are paid, the executors or 
 administrators are absolved from all further liability. 
 Tliis at the time was a great boon,. as it enabled execu- 
 tors and administrators in a summary way to ascertain 
 whether tliere were any outstanding liabilities, without 
 giving to the Court the power to administer the estate ; 
 but it is not so important now that the regidar proceed- 
 ings in the Court of (Jhancery are rendered so much 
 more simple than they were. 
 
 In regard to the Charities of which you are a trustee, 
 I must refer you to the statutes for the better adminis- 
 tration of Charitable Trusts,* where you will see what 
 acts you may do under the authority of the Board of 
 Coimidssioners, and what control they have over you. 
 There is an important provision which enables trustees 
 of any charity to apply to the Board for their opinion, 
 advice, or direction respecting the charity, or the pro- 
 perty, or any question or dispute relating to it. The 
 opinion or advice is to be in writing, signed by two or 
 more of the Commissioners, and sealed with the seal of 
 the Commission. If you act according to this opinion 
 or advice, you will be deemed to have acted according to 
 your trust as far as respects your own responsibility ; 
 but the Act wUl not indemnify you if you were to be 
 guilty of any fraud, or wilful concealment or misrepre- 
 sentation, in obtaining such opinion or advice. 
 
 • 16 & 17 Vict., c. 137 ; 18 & 19 Vict., c. 124.
 
 PROPOSED BELIEF TO TEtTSTEES. 175 
 
 It remains only for me to state to you the heads of 
 the Bill for the Relief of Trustees, to which I have al- 
 ready referred, and which, or a better bill, will no doubt 
 pass this session. The proposed enactments are — that, 
 
 I. Where uj^on a breach of trust (the trustee, &c. acting 
 with good faith) there is both a profit and a loss on the 
 transaction, the one is to be set off against the other. 
 The necessity for this provision is shown by the decision 
 in the case which I have already stated to you (p. 1 64<). 
 
 II. Payments and acts by any trustee, executor, or 
 administrator, under a power of attorney, are to be valid, 
 although the person who gave the power was dead at the 
 time of the payment or act, provided the trustee, &c. 
 was ignorant of the death, 
 
 III. Investments under the opinion of one of the Con- 
 veyancing Counsel will render the trustee, &c. safe. 
 
 IV. Gross negligence only to charge a trustee, &c. for 
 neglect, where a testator has not directed the act to be 
 done, although by the rules of equity it ought to have 
 been done. 
 
 V. Trustee, &c. not to be liable for omitting to sue 
 for a debt where there was reason to believe the action 
 would have been useless. 
 
 VI. Trustee, &c. not to be liable for omission to sue 
 on any bond or other personal security where the testa- 
 tor lent the money and did not call it in, unless required 
 to do so by the persons entitled to the money. 
 
 VII. Provision for releasing executors and adminis- 
 trators from liabilities to rents and covenants under 
 leases. 
 
 VIII. Executors and administrators to be indemnified 
 where they have acted in the distribution of the assets, 
 as the Court would have done if a bill had been filed.
 
 176 PROPOSED RELIEF TO TRUSTEES. 
 
 IX. Trustees, executors, and administrators, authorised 
 in a sunnnary way to apply for and act upon the advice 
 of a judge in equity on any question respecting the 
 management or administration of the trust property or 
 the assets of any testator. 
 
 X. But no breach of trust or duty is to be protected 
 where the trustee, executor, or administrator, either 
 directly or indirectly, derives from the act or matter con- 
 stituting such breach of trust any personal benefit. 
 
 If any of these provisions should pass into a law, you 
 will not have much difficulty in ascertaining from which 
 of the dangers pointed out in my last Letter you will be 
 relieved in your character of a trustee.
 
 TITLE ACQUIEED BY POSSESSION. 177 
 
 LETTER XXIII. 
 
 Yor are aware, no doubt, that no real property, lands 
 or houses, can pass otherwise than by grant by deed for 
 money, or for some good consideration, blood or friend- 
 ship for example, for you may convey away your estate 
 to whom you please ; or by descent or devise, whereas 
 mere personal property will pass by delivery from hand 
 to hand. But yet there is a mode in which a man may 
 acquire real property without paying for it or receiving 
 it as a gift, or inheriting it by descent. This, at first sight, 
 may appear singular to you. It is by what I may call 
 adverse possession, which now is a possession by a 
 person not the owner during a certain number of years 
 without acknowledgment of the right of the real owner, 
 and yet not necessarily in oj^en defiance of him. In aU 
 times, great weight has been given to long-continued 
 possession, in order to put a period to litigation. With 
 us, the periods and nature of the possession depend alto- 
 gether on acts of the Legislature,* and now even charities 
 may be bound by nonclaim. Constant claims are set up 
 to the estates of other men by poor and ignorant, and 
 sometimes by crafty persons, although generally the 
 latter support the claims of the former, where they 
 think they can work upon the creduhty of mankind. 
 Some remarkable instances of fraudulent claims which 
 have happened in recent times wUl recur to your me- 
 mory. I call yom- recollection to them in order to guard 
 you against such frauds ; for these claims, when specious 
 * 3 & 4 Will. IV., c. 27. 
 M
 
 178 TWENTY years' POSSESSION A TITLE. 
 
 ones, are made the subject of bargains and wagers in the 
 city, and the ehiiniants held up as persons who have been 
 stri])i)ed of tlieir rights by the wealthy, and are deserving 
 of public sympathy. I have myself seen an office open 
 for a considerable period in a great thoroughfare in the 
 immediate vicinity of Westmmster Hall, for the sale of 
 shares in an estate claimed by a person Avho, to meet the 
 expenses of law pi-oceedlngs, was willing to allow sub- 
 scribers to participate largely in the profits of the estate 
 when acquired. Great numbers of persons were cheated 
 by this scheme, which wui> clearly an illegal one. And, 
 in point of fact, to my knowledge, the right to the estate 
 in question had, long before this sale of shares in it, been 
 the subject of litigation, and had been adjudged to be- 
 long to persons whose right to it could not be disputed 
 by further litigation. You will quickly see how im- 
 possible it is that any really stale claim can succeed. 
 When the time has arrived that bars the remedy, the 
 right of the clamiant out of possession is actually ex- 
 tinguished, and even the rights of the Crown may be 
 extinguished by continued possession.* 
 
 The common remedy is now by the action of eject- 
 ment, which shnple remedy is a great relief to the 
 subject, and the common time for asserting the right of 
 action is 20 years. The claimant's remedy, therefore, 
 will be barred by mere possession by another, without 
 payment of rent or acknowledgment, if his right of 
 entry accrued above 20 years before the ejectment. 
 
 If the right oi entvy first belongs to you ; for example, 
 if you are in possession of the property, or in receipt of 
 the profits, and discontinue such possession or receipt, 
 the 20 years will begin to run from such discontinuance. 
 Where there has been no possession or receipt under a 
 
 • 9 Geo. III., c, 16, English Act ; 48 Geo. III., c. 47, Irish Act.
 
 WHEN THE TIME BEGINS TO EUN. 179 
 
 conveyance of the possession, the time riiiis from the 
 period when the grantee became entitled to possession 
 under the deed. 
 
 If the right does not first accrue to you, but to some 
 person through whom you cUiim, time will in like 
 manner run from the period when the right first 
 accrued to such person : for example, if your father 
 had been in possession or in receipt of the property or 
 rent, and had discontinued such possession, and then 
 died, leaving you his heir, time would run against you 
 from the period of such discontinuance by your father ; 
 and so in like cases. 
 
 If your father had been in possession at his death, 
 and had left you his heir, and a stranger entered, time 
 would run against you from your father's death. If a 
 rent or an annuity be left to you by will, and you 
 neglect to receive it, 20 years will bar you, counting 
 from the period when you first had a right to distrain 
 for it. 
 
 If you were entitled in remainder — for example, if by 
 will jjroperty were given to one for hfe, and after his 
 death to you, time will not run against you until your 
 remainder became an estate in possession by the death 
 of the tenant for life. Upon this head there are very 
 nice distinctions, with which I will not perplex you. 
 
 You should be told that the term discontinuance of 
 possession means an abandonment of possession by one 
 person, followed hy the actual possession of another 
 person, otherwise there would be no person in whose 
 favom' tune would run ; therefore, for example, if you 
 were to sell part of your estate, reserving the unopened 
 mines with a right of entry, 20 years' neglect would not 
 bar you, but you might exercise your right at any 
 period.
 
 180 POSSESSION BY TENANTS. 
 
 Where the person in possession is a tenant, and holds 
 witliout regard to his hmtllord, the law applies itself to 
 various cases. 1. Tenancy at will, as it is tenned, for 
 example, a purchaser let into possession before obtainmg 
 his conveyance and paying the purchase-money ; time 
 runs at the determination of the tenancy, or at the 
 cxjuration of one year after the commencement of the 
 tenancy, when it is to be deemed to have determined. 
 
 2. When the tenancy is from year to year, or other 
 period, without a lease in writing, your right of entry 
 as landlord would accnie at the end of the first of such 
 years, or at the last receipt of rent (which shall last 
 happen), and from that period time might run against 
 you if yoii neglected your claim as a landlord. 
 
 3. Where the tenancy is under a lease in writing at 
 i^20 or upwards rent, and a wrongful claimant of the 
 reversion receives it, and no pajmient of rent is afteiwards 
 made to you as the rightful landlord, your right would 
 be held to accnie when the rent was first received by 
 the third party, and no new right would vest in you on 
 the determination of the lease ; so that by mere neglect 
 to receive your rent, and another person stepping in and 
 receiving it, you would be barred of all relief at the end 
 of 20 years. Mere non-pa)Tnent of rent, however, will 
 not bar you, nor will this law apply to a lease upon 
 which no rent is reserved. So that in such cases you 
 would be entitled to recover at the end of the lease. 
 The Act of ParHament does not extend this provision to 
 other leases in ^vritLng ; therefore, when the rent is 
 under i?20 a-year, the mere receipt of it by a stranger 
 Vill not make time run against the landlord. 
 
 If the person in possession or receipt of the profits 
 acknowledges to you or your agent in wiiting, signed 
 by him, your title, then in law his possession is yours,
 
 SAVINGS FOR DISABILITIES — 40 YEARS A TITLE. 181 
 
 and time will run against you only from the period when 
 such acknowledgment was given, or the last, if more than 
 one is given ; and an acknowledgment signed by an agent 
 would be effectual* 
 
 There are savings, although the 20 years have expired, 
 for infants, married women, lunatics, or absentees beyond 
 seas, for 10 years after the disability has ceased of the 
 person to whom the right first accrued, or untd his 
 death, which shall first happen. But a succession of dis- 
 abilities does not extend the time, and 40 years are, with 
 the exception which I will state to you, an absolute bar 
 to all, though the disability has not been removed, or the 
 10 years allowed for disabilities have not expired. 
 
 But the 20 years are the regular bar, and the sav- 
 ings for disabilities are the exception, in even which 
 case not more than 40 years are allowed in all. But 
 the 20 years allowed may carry the right beyond 40 
 years; for if, for example, you are tenant for life, and 
 your son is entitled in remainder after your death, as the 
 20 years will only run from the time when the right 
 first accrues, in your case it will not commence runnuig 
 until your death, when his right begins, and you may 
 live for more than 40 years from the time when the 
 estate was settled. 
 
 These provisions, as I have remarked elsewhere, place 
 landed proprietors in danger of rapidly losing portions of 
 their property, particidarly where they have allowed 
 friends or dependants to occupy parts without payment 
 of any rent. In many cases it will be found that the 
 statute has transferred the fee-simple to the occupier. 
 Wliere 20 years have not already elapsed, written 
 acknowledgments should be immediately obtained from 
 aU such occupiers, signed by them. And in every case 
 * 19 & 20 Vict., c. 97, s. 13.
 
 182 DANCER TO TITLE — TRITSTEES POSSESSION. 
 
 in whirh you allow another person to occupy any part of 
 ycnu- estate without paying rent, or to receive any part of 
 your rents without account, not only should you obtain a 
 witten acknowledgment of title to be signed by such per- 
 son, but you should rtMpiire a renewal of it every year, just 
 as you would payment of rent ; for, oddly enough, the time 
 will begin to run against you the moment after the 
 j)erson in jiossession has acknowledged yoiu" title, so that, 
 even when an annual acknowledgment is taken, with the 
 exception of a momentary interval, time will always he 
 running against you, although every renewed acknow- 
 ledgment renders it necessary to begin a new computa- 
 tion of the 20 years. If you were to postpone calling 
 for an acknowledgment for 5 or 10 years, it would 
 probably escape your recollection altogether, and yet you 
 might be in constant intercourse with the person whom 
 you kindly let into possession, and who may yet ultimately 
 claim the property as his own. 
 
 Part of your estates is vested in trustees, expressly in 
 trust for you, and as between you and your trustees you 
 are in no danger of being barred by time, unless indeed 
 they should convey your property to a purchaser for 
 valuable consideration, from which act, time would begin 
 to run against you as regards the purchaser, and any 
 person claiming under him. But the trustees themselves 
 may be in danger of being barred ; for 20 years' pos- 
 session by a third person will bar both you and them. 
 Your possession, however, would not be adverse to youi- 
 trustees ; and whilst their right continues, yours is safe. 
 It would only perplex you if I were to state to you 
 how the law bears upon estates-tail, the nature of whose 
 tenancy I have explained to you in my Tenth Letter ; but 
 I may mention, that if you, as tenant in tail, which you 
 are of part of your property, were to neglect to pursue
 
 CONCEALED FRAUD — ADMIKISTRATOR, ETC. 183 
 
 your claim against a person in possession, without 
 acknowledgment of your title for 20 years, your chil- 
 dren and your children's chilch-en would be barred as 
 well as yourself Your neglect would bar them, and 
 indeed would equally bar remainder-men claiming to take 
 after your estate-tail. 
 
 Your remedy in equity, where your right is an equi- 
 table one, for recovery of the property withheld from 
 you, is placed on the same footing in regard to time as 
 your legal remedies. The distinction, in a general sense, 
 between your legal and equitable interests is, that where 
 an estate is conveyed directly to yourself, you have the 
 legal right to it. Where it is conveyed so as to vest in 
 another the legal right, but in trust for you, you are the 
 equitable owner of your property. 
 
 If there is a concealed fraud, the remedy in equity, 
 except as against any bond fide purchaser for valuable 
 consideration, without notice, and no party to the fraud, 
 will not be considered to accrue until the fraud shall, or 
 with reasonable diligence might, have been first dis- 
 covered. This has been explained not to mean the case 
 of a party entermg wiongfully ; it means a case of de- 
 signed fraud, by which a party, knowing to whom the 
 right belongs, conceals the circumstances proving that 
 right, and by means of such concealment enables him- 
 self to enter and hold. 
 
 I may still observe, that time runs against an admi- 
 nistrator from the testator's death. A party relying 
 upon possession cannot avail himself of the possession of 
 a joint-tenant or tenant in common.
 
 1 84 CHARGES BARRED BY TIME. 
 
 LETTER XXIV. 
 
 My last Letter relates to adverse possession of the 
 •estate itself, but a limitation has also been put upon pro- 
 ■ceedings to recover charges on the estate. Neither action 
 nor suit can be brought to recover any money secured 
 by mortgaire,* judgment, or lien, or otherwise, charged 
 upon any estate or any legacy (which, however, extends to 
 legacies although payable out of personal estate only), but 
 within twenty years, unless in the mean time some part 
 of the money or interest has been paid, or some acknow- 
 ledgment of the right to it shall have been given in 
 ^\Titing, signed by the person by whom the same shall 
 be payable, or his agent, to the person entitled to it, or 
 his agent, and in such case the twenty years are to run 
 from the last of such payments or acknowledgments, 
 but the time ^vill not begin to run until next after a 
 present right to receive the money has accrued to some 
 person capable of giving a discharge for it. This is an 
 important condition ; for instance, if you, as tenant for 
 life of your estates, were to pay off a charge upon it, 
 but to take no step to keep it alive, and you were to live 
 more than twenty years after the payment, yet the right 
 to the charge would not be barred, for there would be 
 no assignable person liable to pay it in your lifetime, and 
 the rent out of which the interest of the charge was to 
 be paid belonged to you, who were entitled to the inte- 
 rest. You would be both the hand to pay and to re- 
 
 * In Letter Fourteenth (on Mortgages), I have stated to you the 
 operation of adverse possession on such securities.
 
 AKEEARS OF INTEREST. 185 
 
 ceive. When a judgment is entered upon a post obit 
 bond, time -will not begin to run until after the death 
 of the life, on the dropping of wliich the payment 
 depends. 
 
 That part of the statute which requires an acknow- 
 ledgment in writing to save time running, has received 
 a liberal interpretation in favour of the claimant. 
 
 These provisions apply to the principal sums charged. 
 Arrears of dower cannot be recovered for more than 
 six years next before the action or suit. And no arrears 
 of rent or of interest of any money charged upon any 
 land, or in respect of any legacy, can be recovered but 
 within six years next after the same became due, or 
 next after an acknowledgment of the same in writing 
 has been given to the person entitled thereto, or his 
 agent, signed by the person entitled thereto or his agent ; 
 with an exception, nevertheless, in favour of the creditor 
 where a prior encumbrance has been in possession within 
 one year before the action or suit. 
 
 This provision extends to interest on judgments, as 
 well as to interest on mortgages, and if the remedy is 
 barred against the real estate, the bar applies equally to 
 any remedy against the personal estate of the debtor. 
 There is still a further provision under another Act of 
 Parliament,* whicli was passed about the same time as 
 the 3 & 4 W. IV., c. 27, to which I have already so amply 
 referred, and which comes in aid sometimes of the latter 
 statute. It is provided that all actions of debt for rent 
 upon an indenture of demise, and all actions of covenant 
 or debt upon any hand, or other specialty, shall be sued 
 within twenty years after the cause of such actions. It 
 contains savings in case of disabilities, with the nature 
 
 * 3 & 4 Will, rV., c. 42. Unfortunately, the framers of the two Acts 
 were ignorant of each other's labours.
 
 I 86 PAYMENT OF INTEREST BY TENANT FOR LIFE. 
 
 of whiili ytiu are already well iiifonned, and it gives 
 etiect to acknowled<^ments in writing, and part pay- 
 ments of any principal or interest, but it so far differs 
 from a former provision that, although it requires the 
 ackn<i\vk'(lgment to be made and signed by the party 
 liable, or his agent, it does not require it to be made to 
 the person entitled or his agent. But there are some 
 nice distinctions on this head. 
 
 Where an estate of a deceased debtor is liable to a 
 1 )ond debt, which binds the heir, and the estate is settled 
 on one for life, with remainders over after his death, 
 paj-ment of interest on the bond by the tenant for life, 
 will keep alive the creditor's remedy against the re- 
 mainder-men after the death of the tenant for life. You 
 will probably think this quite right.
 
 CHURCH PATRONAGE — RIGHT TO LIGHT. 187 
 
 LETTER XXV. 
 
 This Letter concludes my observations on Rights ac- 
 quired by Possession. 
 
 As to your Cliui'ch patronage, I may just notice that 
 no advowson can be recovered by any person after three 
 clerks in succession have held the same adversely, if the 
 times of such incumbencies together shall amount to 
 60 years, and if not, then after the expiration of such 
 further time as with the time of such incumbencies will 
 make up the period of 60 years. No man, therefore, 
 with ordinary vigilance, can be deprived of his advowson 
 by an adverse enjoyment. 
 
 The statute law * also provides for the claims to light, 
 rights of common and rights of way, and other similar 
 rights. 
 
 1. Where the access and use of light for any house or 
 building has been actually enjoyed therewith for 20 
 years without interruption, the right becomes absolute 
 and indefeasible, imless it was enjoyed by consent or agree- 
 ment expressly given or made by deed or writing ; and 
 there is no saving for disabilities. Tlie right, therefore, 
 wholly depends upon enjoyment, and it is not required 
 that the person enjoying it should have claimed a right 
 to it ; indeed, as it has been justly observed, every person 
 has a right to all the light which comes to him. You 
 should keep in view this distinction between the right 
 to light, and rights of common and of way, or the like. 
 But the Act converts into a right such an enjoyment only 
 
 ♦ 2&3 Will. IV., c, 71.
 
 1 SS LIGHT.— RIGHTS OF COIOION, ETC. 
 
 of tlio accos.s of light over contiguous land as has been 
 had for the whole 20 years in the character of an 
 easement, distinct from the enjoyment of the land itself. 
 This may require explanation : A house and garden 
 were always in the possession of the same person, and 
 the access of light to the house was over the garden, and 
 the garden was held under a yearly tenancy, consequently, 
 tlic enjoyment for 20 years during the tenancy, 
 which was by virtue of the tenancy, was held not to 
 establish the right. As to an interruption of the enjoy- 
 ment, that will have no effect, unless it has been sub'- 
 niitted to for one year after the party interrapted had 
 notice thereof, and of the person making or authorising 
 the same to be made. The intemiption has been said 
 to mean some physical interruption. It means an in- 
 terruption by the owner of the locus in quo. 
 
 2. Eights of common and other profits and benefits to 
 be taken or enjoyed from or upon any land (except 
 tithes, rents, and semces), which have been enjoyed for 
 30 years by any person claiming right thereto (in that 
 respect distinguishing them from light), without interrup- 
 tion, cannot be defeated, by only showing, according to the 
 old law, that the right has not been enjoyed from time 
 immemorial, for actual enjoyment for 30 years is now 
 allowed as an equivalent, so that no presumption is 
 admissible ; but the claim may be defeated in any other 
 way, in which it might have been defeated before the 
 new Act ; for example, by proof of a grant or license, 
 written or parol, for a limited period, comprising the 
 whole or part of the 30 years, or the absence or 
 ignorance of the parties interested in opposing the 
 claim, and their agents during the whole time it was 
 exercised. 
 
 When the right has been enjoyed, as already described,
 
 TENANT FOR LIFE. — UNITY OF POSSESSION. 189 
 
 for 60 years, it becomes indefeasible, unless it was taken 
 and enjoyed by some consent or agreement, expressly 
 given or made by deed or writing. There is, however, 
 this important distuiction between the 30 years and the 
 60 years' enjoyment : for the GO years work an in- 
 defeasible title, but during the 30 years, the time is 
 excluded in the computation during which the persoii 
 capable of resisting the clami is an infant, lunatic, /ewie 
 covert, or tenant for life, or during the pendency of 
 any action or suit diligently prosecuted. During the 
 period of a tenancy for life, therefore, the exercise of the 
 right will not affect the fee ; in order to accomj)lish that, 
 there must be that period of enjoyment against an owner 
 in fee ; but the time of the disability and litigation, and 
 of the tenancy for life, is to be excluded in the computa- 
 tion, and vsdll not prevent the ojDcration of the full period 
 after it is excluded. The pendency of a tenancy for 
 years is not directed to be excluded in the computa- 
 tion. 
 
 The enjoyment is to be as of right for the whole 
 period, therefore asking leave, obtained from time to 
 time within the period, breaks the continuity of the 
 enjoyment as of right, because each asking of leave is 
 an admission that, at that time, the asker had no right. 
 So an enjoyment during unity of possession — that is, 
 where the land and the right exercised over it are in 
 the same person, is not sufficient to establish the right, for 
 there no person can complain of the enjoyment, and the 
 interval dming which there was no sufficient enjoyment 
 by reason of the unity of possession, cannot merely be 
 excluded from the computation, but may defeat the 
 claim altogether, by breaking the continuity of the en- 
 joyment for the prescribed period before the action was 
 brought.
 
 rjO RKJHTS OF WAY AND OTHER EASEMENTS. 
 
 If the claimant, where there is no unity of pos- 
 session, ceases to exercise his right, that admits of ex- 
 planation — for example, if a commoner were to cease 
 to nse the common for 2 years of the 30, because 
 he had no commonable cattle, but used it before and 
 after, the jury may find a continual enjoyment for 80 
 years, i)rovided the proof covers the 30 years. So 
 obstruction or interruption, from natural causes, over 
 which the party could have no control, ^\all not operate 
 to his prejudice, as in the case of water, or the accident 
 of a dry season. 
 
 3. Eights of way or other easement, or any water- 
 course, or the use of any water, are placed on exactly 
 the same footing as rights of common, except that 20 
 years is substituted for the 30 years, and 40 years 
 for' the 60 years ; but in all other respects there must 
 be the like enjoyment, and with the same liabilities, and 
 idtimately with the same absolute title as in the former 
 case. But with this difference that as to the 40 years, 
 establishing an absolute right, it is provided, that when 
 the land or water over which any such way or other 
 easement,* watercourse, or use of water, has been en- 
 joyed or derived, has been held for life, or years exceed- 
 ing 3 years from the granting thereof^ the time of 
 the enjojanent, during the continuance of such term, shall 
 be excluded in the computation of the 40 years, in case 
 the claim shall, within three years next after the deter- 
 mination of such term, be resisted by the reversioner. 
 Here again, therefore, the time is excluded, and does 
 not defeat the claim by breaking the continuity of the 
 enjoyment. But observe that this applies to the 40 
 years only, and not to the 20 years' enjoyment. 
 
 * The word in the statute is "convenient;" but that is evidently a 
 mistake.
 
 PERIODS OF TIME. — NOJT-USER. 191 
 
 The object of this provision is to give to the landlord, 
 or reversioner of the land or w^ater, a reasonable time 
 to resist the claim of the easement, after the subject over 
 which it is claimed falls into possession where an inde- 
 feasible title is claimed from -iO years' enjoyment. If 
 this right of impeaching the claim is exercised by the 
 landlord, the enjoyment gives no right at all ; not even 
 against the lessee, dming whose time the right has been 
 adversely enjoyed. 
 
 Pray bear in mind that every one of the periods of 
 years is to be taken to be the period next before the suit 
 or action wherein the claim shall be brought in question, 
 which shows that the number of years required are en- 
 tire periods ; although in some cases, as I have pointed 
 out to you, particular times may be excluded from the 
 computation. There must have been an actual user of 
 the right at the commencement of the period, and an 
 user some time in the year next before the commence- 
 ment of the action ; but it will hardly be held necessary 
 that there should be an user proved every year during 
 the period. But I strongly recommend you not to omit 
 in any one year the exercise of the right where you pro- 
 pose to rely upon the statute ; for every neglect for a year 
 will expose you to the loss of your easement. 
 
 In conclusion on this head, I would observe, that 
 where your right to a private right of way is established, 
 you may lose it in less than 20 years by ceasing to 
 use it, and clearly showing an intention to abandon 
 it. Mere non-user would not, however, be sufficient 
 whereon to found the presumption of an abandonment. 
 The non-user must be in consequence of something which 
 is adverse to the user. Do not omit altogether to exercise 
 rights which you have, if you do not mean to abandon 
 them.
 
 192 farewell: 
 
 I have now only to express my hope that you may 
 derive some benefit from my correspondence. If it 
 merely teach you to distrust your own knowledge on the 
 subject, it will not have been written in vain. Much 
 which I have written has cost me little more than the 
 lal)our of writing currente calamo, although the por- 
 tions explaining the new Acts of Parliament, well as I 
 am acquainted with them, have not been unattended by 
 labour of a severer character. The learning which my 
 Letters contain is, however, of common occurrence ; but 
 you will not therefore find it of less use. It has been 
 justly observed, that refined sense and enlightened sense 
 are not half as good as common sense. The same may 
 be said of legal learning. It would have been idle in me 
 to have furnished you with nice disquisitions on abstruse 
 points of law. I have felt no anxiety in any case to 
 point out to you how you may evade or break in upon 
 any rule. I have avoided the lanes and byways, and 
 endeavoured to keep you in the public high-road. If 
 you wander from it, the blame will rest with yourself — 
 Farewell ! 
 
 Boyle Farm, 1st Jan. 1858. 
 
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 LIFE IN THE FAE WEST. 
 
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 NAEEATIVE OF A JOUENEY THEOUGH 
 
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 Messrs Blackwood's PaMications. 
 
 11 
 
 INTRODUCTOEY TEXT-BOOK OF GEOLOGY. 
 
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 No. I. Price fid. 
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 No. XnL Price 6d. 
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 12 Messrs Blackwood's Fablicatlons. 
 
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 Messrs Blackwood's Fn'blicatlons. 13 
 
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 price L.l, 17s. 6d. 
 
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 Messrs Blackwood's Publications. 15 
 
 THE PHYSICAL ATLAS OF NATURAL 
 
 PHENOMENA. 
 
 By Alex. Keith Johnsfon, F R S E, Ac 
 
 Geographer to the Queen. 
 
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 AND 
 James ^'Icni. F R S E. F G S. 
 
 Professor of Natural History, Aberdeen. 
 
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 Geographer to the Queen, 
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 in 4to in a handsome Cloth Case, L.2, 2-.
 
 16 Messrs Blackwood's Pablications. 
 
 SCHOOL ATLASES 
 
 By Alex. KcKh Johnston, 
 
 P.R.S.E., F.n.O.S., F.O.S. 
 
 Geographer to the Queen, Author of the "Physical Atlas," &c. 
 
 THYSICAL GEOGRAPHY, illustrating, in a series of Original 
 Desijn'S. the Elementary Facts of (leolosy, Ilydrolosy, Meteorology, and 
 Natural History. In this Atlas of Physical Cleouraphy the subject is treated in 
 a more simple and elementary manner than in the previous works of the Author 
 — the oliject beinj; to convey broad and general ideas on the form and structure 
 of our Planet, and the principal phenomena affecting its outer crust. 
 
 CLASSICAL GEOGRAPHY, comprising, in Twenty Plates, Maps 
 and Plans of all the important Countries and Localities referred to by Classical 
 Authors, constructed from the best Materials, and embodyinfj the results of the 
 most recent Investigations. Printed in Colours, uniform with the Author's 
 General and Physical School Atla.ses, and accompanied by a Complete Inde.x 
 of Places, in which the proper Quantities of the Syllables are marked, liy 
 T. Harvkv, M.A., 0.\on., one of the Classical Masters in the Kdhiburgh 
 Academy. 
 
 GENERAL AND DESCRIPTIVE GEOGRAPHY, exhibiting the 
 
 Actual and Comparative Kxtent of all the Countries in the World ; with their 
 Present Political Divisions. Constructed with a special view to the purposes 
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 4. (ireat Clearness, Uniformity, and Accuracy of Colouring. 5. A ready way 
 of Comparing Itelative Areas by means of Sc.iles. 6. The insertion of the Cor- 
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 sessions, ic, by Figures and Notes. 8. A carefully compiled aud complete 
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 ASTRONOMY. Edited by J. R. HIND, Esq., F.R.A.S., &c. With 
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 ELEMENTARY SCHOOL ATLAS OF GENERAL AND DE- 
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 half-bound. 
 
 TWELVE OUTLINE PROJECTIONS, corresponding in scale 
 with the Plates of Keith .Iohnston's CiENEiiAL School Atlas. Europb, 
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 Single Projections, 3d. each.
 
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