UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY NEW COMMENTARIES ON THE LAAVS OP ENGLAND. (partly founded on blackstone.) HENRY JOHN STEPHEN, SERJEANT AT LAW. " For hoping well to deliver myself from mistaking, by the order and perspicuous expressing ' of that I do propound, I am otherwise zealous and affectionate to recede as little from antiquily, eilltcr in terms or ojjinions, as mag stand with truth, and the proficience of know- ' ledge."— 1.0XA Bac. Adv. Of Learning. dFifti^ iStiition. PREPARED FOR THE PRESS BY JAMES STEPHEN, Esq., LL.D., OP THE MIDDLE TEMPLE, BARRISTER AT LAW, TROFESSOR OP ENGLISH LAW AT KING'S COLLEGE, LONDON, AND RECORDER OP POOLE. IN FOUR VOLUMES. Vol. I. LONDON: BUTTERWORTHS, 7, FLEET STREET, Hato i^uIiUgljers to ttje ©uwn'a most Excellent iJHnieBtjj. HODGES, SMITH & CO., GRAFTON STREET, DUBLIN. 1863. T 5t454n mi LONDON : PRINTED BY C. ROWORTH AND SONS, BELL YARD, TEMPLE BAR. J DEDICATION (ON PUBLICATION OF THE FIRST EDITION). TO THE QUEEN. Madam, The eminent person upon whose Commentaries on the Laws of England this Work is partly founded, had the honour to obtain for his labours the patronage of a Queen Consort ; but the present Writer has to congratulate himself upon the yet more distinguished fortune of being permitted thus to dedicate his pages to a reigning Queen, — under whose gracious and be- neficent sceptre the administration of the a 2 ( iv ) law has been such as to command universal respect, and the law itself has been carried forward in a steady and temperate course of reform, nearer and nearer towards perfec- tion. I remain, Madam, with profound respect, Your Majesty's loyal Subject and Servant, THE AUTHOR. PREFACE TO THE FIRST EDITION FIRST VOLUME (a). It is now many years ago that I first conceived and communicated to my friends in private society, the design of composing a work on the Laws of Eng- land, to which the text of Blackstone should be in a great measure contributory ; and in 1 836 I an- nounced that design to the public. Since this period, several works have issued from the press, purporting to be treatises either on the English Law in general, or on detached portions of it, and containing repub- lications of Blackstone's text, in forms more or less entire, with the intermixture of new matter by the respective editors. AVhile this circumstance affords some testimony to the value of the original concep- tion (6), there is, at the same time, no collision be- tween any of these works and my own. With the exception of the general resemblance above pointed out, they will be found to pursue methods entirely remote from that which I have adopted. (a) This work was originally published volume by volume. (6) I do not mean by this expression to suggest that the works in question are indebted to me for the design on which they are founded. With respect, indeed, to that which first made its appearance, I became apprised, very shortly after my advertisement, that it was in contemplation, and that one of the volumes was far advanced towards completion. VI PREFACE. Of the plan and principle of my own work, and of the views on which it was undertaken, it may- be right here to give some farther explanation. Though the celebrated Treatise of Blackstone still remains without a rival, as an introductory and popular work on the Laws of England, the positions which it contains have been nevertheless so trenched upon by recent alterations in the law itself, that if the student were to rely upon its text, as containing an accurate account of our present system of juris- prudence, he would be led continually astray. The later editions have consequently comprised a copious accompaniment of corrective and supplementary notes at the bottom of the page : but it is not in the nature of such a method (with whatever ability pur- sued) to give entire satisfaction, because it obliges the reader to transfer his attention, incessantly, from the text to the commentary, and augments also, to a considerable degree, the bulk and consequent ex- pense of the volumes. These considerations led me to conceive that a work might prove acceptable, which should be framed upon the plan of intro- ducing the necessary alterations into the text itself; but the question then arose, whether it would be better to confine my effort to the reparation of those defects which new legislation and new decisions had occasioned, or to take a bolder course, and, discard- ing all solicitude about the measure of my adhe- rence to the original work, to interweave my own composition with it, as freely as the purpose of PREFACE. Vn general improvement might seem to require. It was upon the latter plan that I fixed, though with some hesitation, my choice. It may be thought, perhaps, that the confidence which carried me thus far, might naturally have tempted me farther, and taught me to aspire to the construction of an entirely new treatise. But if I had been conscious of faculties adequate to such an enterprize, I should still have declined it, as founded, in my judgment, on a wrong principle. The unim- paired portion of Blackstone's Commentaries com- prises many passages, which (free in other respects from objection) are so far valuable at least, that they bear the stamp of his authority, and many others whose merit is of the highest order, being distin- guished by all the grace and spirit of diction, the justness of thought, and the aflluence of various learning, to which he owes his fame. These relics, which are in considerable danger of perishing by their incorporation in a work now falling into decay, may be lawfully converted, by any new Commen- tator on the Laws, to his own purposes ; and it is manifestly not less his duty than his interest, to make the appropriation. He cannot reasonably hope to rival their excellence ; and to attempt to displace them for original matter of his own, is consequently an injury to the public, and to the science of which he treats. Vlll PREFACE. All passages, then, which appeared to me to fall under either of the descriptions above given, I have made it my principle to retain ; but my deviations from the original work have, nevertheless, been frequent and extensive. Independently of certain objections to its arrangement (to which I shall presently revert), its exposition of particular sub- jects appeared to me to be often deficient in depth, in fulness, or in precision, and in some instances to be even chargeable with positive inaccuracy ; so that, as I had prescribed to myself the rule of de- parting from Blackstone wherever I felt dissatisfied with his performance as well as where any change in the law had made a departure indispensable, it is seldom that I have been able to pursue the text for several pages in succession, without the introduction (more or less extensively) of matter from my own pen (c). Large portions, indeed, of original composi- tion will be found frequently to occur in a continu- ous form ; and even where the text of my predecessor is pursued with shorter interruption, yet it will be often apparent that fundamental alterations have been made in the manner of treating the particular subject under discussion. There is no part of the present volume, perhaps, in which the innovation is so important, as in that which regards the law of Descent, where I have endeavoured to lay down new (c) Such matter has of course copiously increased since this Preface was written, owing to the vast additions since then inaile to the Statute Book. PREFACE, IX Rules of Inheritance, in lieu of the well-known Canons of Blackstone, now superseded by the effect of a recent Act of Parliament — a severe task — from which I should have been tempted to recoil, if, con- sistently with the general plan of my work, it had been possible to leave it unattempted. But it is in that which regards the general ar- rangement, that the strongest claim of the present work to originality will be found. The order adopted by Blackstone is, in all its principal linea- ments, derived from the Analysis of Hale ; but though rendered venerable by the combined autho- rity of names like these, I have not felt myself able to accede to it without alteration. The main division, indeed, by which the body of municipal law is severed into Rights and Wrongs, I have deemed it expedient to retain ; for (though liable to the great disadvantage of precluding the entire or continuous discussion of some particular subjects, by making it necessary to recur to them under the aspect of Wrongs, after they have already once engaged our attention under that of Rights) it is founded nevertheless on a natural and just dis- tinction, and is interwoven besides with the whole fabric of our law, and rooted in the minds of our lawyers. The division also of Wrongs into those of a civil, and those of a criminal nature, I liave, for similar reasons, thought it clearly essential to pre- serve. But as to the division of Bights, the case is PREFACE. widely different. These are distributed by Black- stone into Mights of Persons and Rights of Things ; an arrangement which has been justly considered contrary both to grammatical and logical propriety. For the rights of things can only be understood as signifying the rights relating to things — a sense not correctly conveyed by the form of expression ; and are placed, besides, in false antithesis to the rights of persons ; by which is evidently intended the rights belonging to persons. The meaning would have been better expressed by a division into the rights relating to persons, and the rights relating to things. This fault, indeed, is the more remark- able, because it might have been avoided by a closer adherence to the language of Justinian's Institutes, which apparently served in this instance as the model : Omne jus quo utimur (according to this authority) vel ad pcrsonas pcrtinet, vel ad res, vel ad actiones (d). The arrangement in question, however, is not open merely to this kind of criticism, but to other objections of a much weightier description. In the first place, it determines that the law relating to persons shall be fully discussed before that relating to property has been examined, — and yet the sub- ject of property ought, in reason, to take the pre- cedence of that part of the law of persons, at least, which treats of relative rights ; for it is in the nature [d) liistit. lib. i. tit. 2. PREFACE. XI of the relative rights, viz. those which grow out of the social relations of parent and child, husband and wife, magistrates and people, and the like, to pre- suppose the absolute ones of life, liberty, personal security, and property (e). With respect to absolute rights of the three first descriptions, this is obvious, and the precedence therefore is properly assigned to them in Blackstone's work ; but it is equally true with regard to property also — for property, like the rest, unquestionably constitutes one of the circum- stances to which the social relations are adjusted, and to which they must be supposed to refer. To this right, therefore, the next place ought, in point of correct arrangement, to have been allotted ; but the Commentator's plan of division makes this im- possible, and compels him, after a short notice of property, to pass on, and to postpone its further ex- amination, until all relative rights (whether private or public) have been exhausted. This inversion of the natural order is not only inartificial, but often embarrasses the discussion of rights of the relative (e) This did not escape the discernment of Hale : '' Having done with " the rights of persons, I now come to the rights of things. And though " according to the usual method of civilians, and our antient common law " tractates, this comes in the second place, after the jura personaruin, and " therefore I have herein pursued the same course, yet that must not be the " method of a young student of the common law, but he must begin his '' study here, at \hejura rerum ; for the former part contains matter proper " for the study of one that is well acquainted with those jura reram." — Hale's Anal. sect. 23. This passage had not attracted my attention until my principle of division had been fixed upon ; and its subsequent discovery was of course calculated to give mc increased confidence in the propriety of my choice. Xll PREFACE. kind. Thus in the chapter on Husband and Wife, every reader must perceive the disadvantage of the total omission to notice the effects of marriaoe in regard to the property of the parties ; and yet until the subject of property in general had been ex- amined, any disquisition on the proprietary rights attending that particular relation, would have been obviously premature. Another, and a still more important objection to the method which considers Rights as consisting either of Rights of Persons or Rights of Things, is that it fails to embrace the whole compass of rights. There is a branch of law which belongs (properly speaking) to neither of these divisions, but of great and growing importance in our municipal system, that, namely, which concerns the social, as distin- guished from the political, ecclesiastical, and judicial institutions of the country, and which comprises (among many other subjects) the laws relating to the poor, to highways, to public charities, and the like. For topics such as these, the analysis of Black- stone affords no proper place, and when they are of too much importance to be neglected, expedients of an awkward kind are often devised to make room for them. Thus the law of highways and turnpikes is made incidental to the office of parish surveyor, and the large and interesting subject of the poor laws is dealt with, by way of digression from the office of overseer. PREFACE. XIU Dissatisfied for these reasons with Blackstone's arrangement of rights, and conceiving that it had not, hke the other portions of his general method, become so inveterate among us, as to render its retention unavoidable, I have consequently ventured to lay it aside, and to adopt, so far as this subject is concerned, a different plan of distribution. This plan is entirely of my own conception. It might have been supposed, indeed, that in a field so highly cultivated as that of Rights, I could be at no loss for a satisfactory precedent ; but my search for one, though prosecuted with some diligence, was not attended with success. No writer on Enoflish or American law, who has deserted the order of Black- stone, had any pretension to be considered as a model— the repositories of the Roman jurisprudence (which, with the exception of the Institutes, are notoriously defective or confused in their arrange- ment) supplied nothing to the purpose — the In- stitutes themselves (from which the division into the rights of persons and of things was originally taken) could of course afford no assistance ; — and, with respect to the continental systems, they either conform (as in the Code Civil of France) to the Institutes, or when they depart (as in the treatise of Domat) from the beaten track, their course is not such as an English jurist could follow with advantage. The general plan which I have thus ventured, on XIV PREFACE. my own responsibility, to lay down, will be found at the commencement of the first book. Its lead- ing principle is — to make the distinction between Persons and Things the foundation not of a primary, but of a subordinate arrangement, and to con- sider Persons, as constituting, in a primary sense, the only oljjects of the law's regard. But the persons, whom the law is supposed thus uniformly to contemplate, are presented, first, in the light of insulated individuals, — and in that capacity their personal (in other words their hodily) rights are examined ; next, in their connection with the things around them, — which introduces the consideration of their rights of property ; next, as members of families, — which involves their rights in private relations ; and lastly, as members of the com- munity, — which leads to the discussion of their rights in public relations, or (as they may be termed more compendiously) public lights. According to this order, the absolute right uni- formly takes the precedence of the relative, and the law of property in general is investigated before the relations of men, in regard to property, arise for consideration. Upon this system, too, the division of Public nights (when it shall come to be exa- mined in its proper place) will allow of a sub- division conveniently adapted to the discussion of those mixed subjects co which we have before re- ferred, and which, having no exclusive connection PREFACE. XV either witli person or property, it is the tendency of Blaekstone's method to exckide. I propose to subdivide the head of PubHc Rights into those which concern a man in his relations to persons in authority, whether civil or ecclesiastical, and those which concern him in his relations to his felloAv citizens at large — the first of which will fall under tlie heads of The Civil Government, and The Church ; the second under that of the Social Economy of the Realm ; and it is under this latter head, that such mixed subjects as above referred to, will find a regular and appropriate place. The entire arrangement of the work, when fully de- veloped, will consequently stand as follows : — T. Of Personal Rights. II. Of Rights of Property. 1 . As to thiugs real. 2. As to things personal. ITT. Of Rights in Private Relations. 1. Between master and servant. 2. Between husband and wife. •3. Between parent and child. 4. Between guardian and ward. TV. Of Public Rights. 1. As to the civil government. 2. As to the church. 3. As to the social economy of the realm. V. Of Civil Injuries. Including the modes of redress. VI. Of Crimes. Including the modes of prosecution. XVI PREFACE. While the general method differs thus widely from that of the former Commentaries, yet the two works are often in coincidence, so far as regards the interior or more specific divisions; and the chapters of the present volume, in particular, will be found to correspond very frequently, both in title and order of succession, with those in the earlier portions of the second volume of Blackstone. Yet even in parallel chapters, the reader will dis- cover that the same subjects are not invariably embraced — several topics being detached from the place which Blackstone has assigned to them, and either actually inserted, or destined for future in- sertion, in other departments of the work {f). To these deviations from Blackstone, in point of arrangement, it is also proper to add, that the present volume contains several chapters involving a complete departure from the method of that author, and altogether of new construction ; among which the most important are the ninth (on Uses and Trusts), the eighteenth (on Conveyances under the Statute of Uses), and the nineteenth (on Conveyances by Tenants in Tail and Married Women). In a production bearing the relation that has been described to the work of a former writer, I have (/) The Preface here added some further explanations as to the new arrangements effected or intended ; — explanations which it is unnecessary, as the work has been since completed, and has now readied its Fifth Edition, to reprint. PREFACE. XVll deemed it indispensable to supply the reader with the means of readily and precisely distinguishing the portions due to either commentator, or, I should rather say, of distinguishing them with more readi- ness and precision than could be done by aid of the internal evidence resulting from the style or matter. Supposing a mistake to have occasionally arisen on this subject, the effect would have been either to divest an excerpted passage of the authority which of right belonged to it, or to obtain for some part that is new, a credit which it did not fairly deserve ; and even if no greater inconvenience had occurred, than to leave the mind in mere uncertainty to which of the two authors a given passage was to be assigned, it would have materially detracted from the interest and value of the work. The sense of this has led to a method of notation by brackets, the nature of which will be explained in a Notice subjoined to this Preface. It has considerably in- creased both the labour and the expense of the publication, and by no means contributed to the beauty of its page. But the eye soon learns to ac- commodate itself to the novelty, and it is believed that the reader will experience no embarrassment from its adoption. It has not been thought neces- sary, however, to extend it to the notes. Among these, there are many by the present commentator ; but independently of the inferiority of their merit, the reference that they bear to his portions of the text, or other similar circumstances, will in general VOL. I. b XVlll PREFACE. be found sufficiently to distinguish them from the annotations of Blackstone. The cases and autho- rities to which these last refer have throughout been carefully verified, with the exception only of some few instances, in which no ready access could be had to the works from which the citations were made. Upon the whole, I submit this volume to the public, with a solicitude proportionate to the im- portance of the enterprise of which it is the first result. Conscious that I have devoted to it my best faculties, and a large portion of inestimable time, I naturally cherish the hope that the value of the product may prove to be in some degree adequate to the cost of the production : but when I recollect how much its progress has been embarrassed by the labours and anxieties always incident to a profes- sional life, it appears scarcely reasonable to suppose that its plan will be found entirely free from defect, or its execution from inaccuracy. January Is?, 1841. NOTICE TO THE READER. The portions of this work which he between brackets [ ] are taken, without alteration, from the text of Blackstone. For the rest, the present author is responsible. To enable the reader to distinguish the former from the latter, upon merely opening the volume, and without being obliged to turn the leaves over backwards, the continuation of an extract is always marked by a new bracket at the top of the page. b2 CONTENTS OF THE WORK. VOLUME I. Introduction. Page Sect. I. — Of the Study of the Law .. .. .. .. .. 1 II. — Of the Nature of Laws in general .. .. •• 22 III.— Of the Laws of England 41 IV. — Of the Countries subject to the Laws of England . . 85 ♦ Book I. OF PERSONAL RIGHTS. Of Rights and Wrongs and their Divisions, and of the Method or Plan of Arrangement proposed for the present Work . . . . 140 Of the Right of Personal Security 143 Of the Right of Personal Liberty 149 Book II. OF RIGHTS OF PROPERTY. INTRODUCTION. Of Property in General .. .. .. .. .. •• .. 156 PART I. OF THINGS REAL .. .. 172 CHAP. L Of the Divisions of Things Real. Of Lands, Tenements, and Hereditaments .. .. .. ..173 Of Hereditaments, Corporeal and Incorporeal . . .. .. .. 175 XXll CONTENTS OF THE FIRST VOLUME. CHAP. II. Of Tenures. Page Of the Feudal System 177 Of the Introduction of that System into England .. .. .. 185 Of the Nature of Tenure .. ..189 Of the diflferent sorts of Tenure .. .. .. .. .. 191 Of Knight's Service 193 Of Free Socage and its Incidents .. .. .. .. .. 209 Of Petit Serjeanty, Tenage in Burgage, and Gavel-kind .. .. 215 Of Manors 219 Of the Antient Villenage 220 Of Copyhold 224 Of Antient Demesne .. .. .. .. .. .. ., 229 Of Customary Freehold 230 Of Tenure in Frankalmoign .. .. ,. ,. .. ,. 231 CHAP. Ill, Of Freehold Estates of Inheritance. Of Estate 234 Of Legal and Equitable Estate ■ . . . . . . . . . . 235 Of Freehold Estate . . . . . . . . . . . . . . ibid. Of a Fee 2.37 Of Estates in Fee Simple .. .. .. .. .. .. 238 Of the Statute of Quia Emptores 239 Of Fees Simple, Absolute, Base, and Conditional . . . . . . 243 Of Estates Tail 247 CHAP. IV. •Of Freehold Estates not of Inheritance. Of Estates for Life, created by Act of Parties .. .. .. .. 260 Of Tenant in Tail after Possibility of Issue extinct .. .. 267 Of Estate by the Curtesy of England 269 Of Dower 272 CHAP. V. Of Estates less than Freehold. Of the Distinction between Chattels and Freehold . . . . . . 286 Of Estates for Years 288 Of Interesse Termini • . . . . . . , . . . . . . 293 Of Estates at Will 295 Of Tenancies from Year to Year .. .. .. .. .. 297 Of Estates at Sufferance 299 CONTENTS OF THE FIRST VOLUME. CHAP. VI. Of Estates upon Condition. Page Of Estates on Condition implied ill Law .. .. .. .. 303 Of Estates granted on Express Condition, whether precedent or sub- sequent .. .. .. .. .. .. .. .. 304' Of Conditional Limitation .. .. .. .... .. 305 Of the Right of Entry on Breach of Condition subsequent . . 307 Of Conditions Impossible, contrary to Law, or repugnant .. .. 308 Of Waiver of Forfeiture 309 Oi Vivum Vadium.. .. .. .. .. .. .. ..310 Of Mortgage . . . . . . . . . . . . . . . . ibid. Of Estates by Statute Merchant and Statute Staple 314 Of Estate by Elegit 316 CHAP. VII. Of Estates in Possession, Reversion, and Remainder. Of an Estate in Possession .. .. .. .. .. .. 318 Of Right of Possession and Right of Entry.. .. .. .. 319 Of an Estate in Reversion .. .. .. .. .. .. ibid. Of Merger 322 Of an Estate in Remainder .. .. .. .. .. .. 324 Of the Rules as to the Creation of Remainders . . . . . . 328 Of Vested and Contingent Remainders . . .. .. .. .. 330 Of the Rules relative to Contingent Remainders .. .. .. 334 Of defeating Contingent Remainders .. .. .. .. .. 335 Of Trustees to preserve Contingent Remainders . . . . . . 337 Of Strict Settlement .. .. .. .. .. .. ., ibid. Of the Rule in Shelley's Case 339 CHAP. VIII. Of Estates in Severalty, Joint Tenancy, Coparcenary, and Common. Of an Estate in Severalty .. .. .. .. .. .. 343 Of an Estate in Joint Tenancy .. .. .. .. .. 344 Of an Estate in Coparcenary .. .. .. ,. .. ..351 Of an Estate in Common .. .. .. .. .. .. 355 Of Cross Remainders .. .. .. .. .. .. .. 358 XXIV CONTENTS OF THE FIRST VOLUME. CHAP. IX. Of Uses and Trusts. Page. Of the Origin of Uses and Trusts 360 Of the Doctrine of Uses prior to the Statute of Uses . . . . .'?62 Of the Statute of Uses 370 Of the Doctrine of Uses and Trusts since the Statute . . •• 375 Of the different Kinds of Trusts 377 Of the Estate of the Trustee 379 0( the Estate o( cestui que Trust . . .. .. .. .. .. 381 Of Terms held in Trust to attend the Inheritance .. .. .. 384 CHAP. X. Of Title in General. Of Title by Act of Law 388 Of Title by Purchase 389 CHAP. XI. Of Title by Descent. Of the Nature of the Heir's Title in general .. .. .. .. 392 Of the Inheritance Act, 3 & 4 Will. 4, c. 106 393 Of the Rules of Descent in general .. .. .. .. .. 394 Of tracing Descent from the Purchaser .. .. .. .. ibid. 0{ the Maxim Seisina facit Stipitem .. .. .. .. .. 399 Of Descent to the Issue .. .. .. .. .. .. 404 Of the Preference of Males to Females . . . . . . . . . . ibid. Of Primogeniture . . . . . . . . . . . . . . 406 Of Representation .. .. .. .. .. .. .. 409 Of Descent to Lineal Ancestors .. .. .. .. .. 412 Of the Preference of the Paternal Line to the Maternal .. .. 415 Of the Descent to the Issue of Lineal Ancestors . . . . . . 420 Of Whole and Half Blood 422 Of certain special Cases of Descent .. .. .. .. .. 428 Of the Mode of tracing and ascertaining the Heir .. .. .. 429 Of Entry by the Heir 432 Of breaking the Descent . . . . . . . . . . . . . . ibid. Of the Liability of the Heir for the Debts of the Ancestor . . 433 CHAP. XII. Of Title by Escheat. Of the Nature and Principle of Escheat in General r. .. .. 437 Of Escheats propter Defectum Sanguinis . . . . . . . . 438 Of Monsters 439 Of Bastards .. .. .. .. .. .. .. .. ibid. CONTENTS OF THE FIRST VOLUME. XXV CHAP. \ll.— {co7itinued.) Page Of Aliens being incapable of Taking by Descent .. .. .. 442 Of Juschents propter Delictum Tenentis ., .. ,, .. 445 Of Attainder 446 Of Corruption of Blood . . . . . . . . . . . . ibid. Of Forfeiture to the Crown on Attainder for Treason or Murder . . 447 CHAP. XIII. Of Title by Occupancy. Of the Nature and Principle of the Title by Occupancy .. .. 453 Of the Application of it, to Estates pur Autre Vie . . . . . . 454 Of Special Occupancy .. .. .. .. .. .. .. ibid. Of (/uaji Entail .. .. •. .. .. .. .. 455 Of certain Enactments as to Estates pur Autre Vie .. ., . . ibid. Of Alluvion and Dereliction .. .. .. .. .. .. 457 CHAP. XIV. Of Title by Forfeiture. Of Alienation in Mortmain .. .. .. .. .. .. 459 Of Gifts to Charitable Uses 466 Of Alienation by particular Tenants .. .. .. .. .. 468 Of Disclaimer 470 CHAP. XV. Of Title by Alienation in general. Of the Antient State of the Law as to the Power of Alienation . . 471 Of the Present State of the Law on the subject .. .. .. 475 Of those Persons who may convey or take by Purchase .. •• 476 Of Alienation by Persons attainted . . .. .. .. .. 477 Of Alienation by Corporations .. .. .. .• .. •• ibid. Of Alienation by Idiots and Insane Persons .. .. .. 480 Of Alienation by Infants . . .. .. .. .. .. .. 481 Of Alienation by Married Women .. .. .. .. .. ibid. Of Alienation by Aliens .. .. .. .• .. .. .. 482 Of the Way in which a Man may alien .. .. .. •• 485 CHAP. XVI. Of Deeds. Of the Nature of Deeds .. 487 Of Indentures 488 Of Deeds-poll 489 Of the Requisites of Deeds .. .. .. .. .. •• ibid. Of the Formal Parts of Deeds relating to Land .. .. .. 490 Of the Parties ibid. XXVI CONTENTS OF THE FIRST VOLUME. CHAP. XY I.- {continued.) Page Of the Premises .. .. .. .. .. .. .. ., 491 Of the Description of the Tiling conveyed or granted .. .. 492 Of the Habe7idum and Tenendum.. ,. .. .. ., ,, ibid. Of the Reddendum .. .. .. . . . , . . . . 493 Of Conditions .. .. .. .. .. .. ,. .. 494 Of Warranty .. .. .. .. .. .. .. .. ibid. Of Covenants .. ., .. .. .. ,. .. .. 498 Of the Conclusion and Date . . .. .. .. .. .. 499 Of Reading the Deed 500 Of Sealing .. ,. .. .. .. .. .. .. Hid. Of Signing .. ,. ., .. .. .. ibid. Of Delivery 502 Of the Attestation .. .. •• .. .. .. .. 503 Of the Avoidance of Deeds .. .. .. .. .. .. 504 Of the Consideration .. .. .. .. .. .. .. 505 Of Voluntary Conveyances .. .. .. .. .. .. 506 Of the Rules for Construction of Deeds.. .. .. .. .. 507 CHAP. XVII. Of Ordinary Conveyances — and, First, of those at the Common Law. Of the different Kinds of Conveyances .. .. .. .. ..511 Of a Feoffment 512 Of Freeholds by Wrong 619 Of Disseisin, and displacing Reversions and Remainders .. ibid. Of a Grant .. .. .. .. .. .. .. .. .. ibid. Of lying in Grant and lying in Livery .. .. .. .. 520 Of Attornment 521 Of a Lease .. •• .. .. .. .. •• .. ibid. Of Agreements to Let .. .. .. .. .. .. .. 522 Of an Exchange .. .. .. .. .. .. .. 524 Of a Partition 526 Of a Release 527 Of a Confirmation. . .. .. •• .. .. .. .. 530 Of a Surrender .. .. .. .. .. .. .. 531 Of an Assignment. . .. .. .. .. .. .. .. 533 Of a Defeasance .. .. .. .. .• .. .. 535 CHAP. XVIII. Of Conveyances under the Statute of Uses. Of the Principle of a Conveyance under the Statute of Uses . . . . 537 Of a Feoffment to Uses 540 Of a Covenant to stand Seised to Uses .. .. .. .. .. ibid. CONTENTS OF THE FIRST VOLUME. XXVii CHAP. XVlU.-{contmued.) Page Of a Bargain and Sale .. .. .. .. ., .. .,541 Of a Lease and Release .. .. .. ., .. .. 544. Of a Grant to Uses .. .. ., .. 547 Of Conveyances under the Statute of Uses in general .. .. 548 CHAP. XIX. Of Conveyances by Tenants in Tail and Married Women. Of the Former Modes of Proceeding by way of Fine and Recovery . . 565 Of the Substitutes provided by the Fine and Recovery Act . . 58-3 CHAP. XX. Of Devises. Of Devises generally .. .. .. ... .. .. .. 596 Of the Power of Devising .. .. .. .. .. .. 599 Of the Solemnities required .. .. .. .. .. .. 603 Of the Construction of Devises .. .. .. .. .. 609 Of the Operation of Devises in Conveying Real Estate .. .. 617 CHAP. XXI. Of Extraordinary Conveyances, — or those by Matter of Record. Of Private Acts of Parliament . . . . . . . . . . . . 623 Of Royal Grants .. .. .. .. .. .. .. 625 CHAP. XXII. Of Copyholds. Of the Nature of Copyholds in general . . .. .. .. .. 631 Of Waste, Quit Rents, Fines and Heriots 634 Of the Enfranchisement of Copyholds .. .. .. .. ., 639 Of the Extinguishment of Copyholds . . . . . . . . ibid. Of Alienation of Copyholds .. .. .. .. .« .. 640 Of Surrender .. .. .. .. .. .. .. .. 642 Of Admittance 643 Of Devises of Copyholds . . . . . . . • . • . . 647 Of the Conveyance of Entailed Copyhold Estate .. .. .. 648 Of the Conveyance of Copyholds by Married Women . . . . ibid. Of the Conveyance of Equitable Estate in Copyholds. . . . . . 649 Of the Copyhold Acts for improvement of the Tenure and facilitating Enfranchisement.. .. .. .. .. .. .. 650 XXVm CONTENTS OF THE FIRST VOLUME. CHAP. XXIII. Of Incorporeal Hereditaments. Page Of Incorporeal Hereditaments in general .. .. .. c 655 Of Common .. .. .. .. .. .. .. .. 657 Of Ways 667 Of Watercourses .. .. .. .. .. .. .. 668 Of Lights 669 Of Franchises 670 Of Rents 681 Of the Law of Incorporeal Hereditaments, generally considered. . 688 Of Hereditaments Appendant, Appurtenant, or in Gross.. .. ibid. Of Incorporeal Hereditaments as to Tenure, Estates and Title .. 689 Of Prescription 692 Of Prescription at Common Law .. .. .. .. .. 693 Of Prescription under 2 & 3 Will. 4, c. 71 697 Of the Extinction of Incorporeal Hereditaments .. .. .. 700 Of the Abandonment of Lights and Watercourses . . . . . . 701 CHAP. XXIV. Of certain Provisions for the Protection of Purchasers and Mortgagees against insecure Titles. Of the Land Transfer Act (25 & 26 Vict. c. 53) 703 Of the Declaration of Title Act (25 & 26 Vict. c. 67) . . . . 705 CONTENTS OF THE SECOND VOLUME. VOLUME II. Book II. OF RIGHTS OF PROPERTY— continued. PART 11. OF THINGS PEKSONAL .. .. 1 CHAP. I. Of Things Personal in general, and of Property therein. Of Chattels Personal 2 Of Moveables 4 Of Ammah Fera Natura .. .• .. .. .. .. ibid. Of Incorporeal Chattels .. .. .. .. •• •• 9 Of Property in Possession and in Action .. .. .. .. 10 Of Absolute and Qualified Property • • . . . • . • il>iif- Of Interests by way of Remainder in Chattels Personal .. .. 12 Of Joint Tenancy and Tenancy in Common in Chattels Personal 14 Of Equitable Interests in Chattels Personal .. .. .. .. lH CHAP. II. Of Title to Things Personal ; and, First, of Title by Occupancy. Of Title by Occupancy ^ .. •• 16 Of Hostile Capture 17 Of the Capture of Animals Fera Natura, and the Law relating to Game 19 Of Title by Accession .. .. •• .. .. .. 22 Of Title by Confusion or Intermixture., .. .. .. .. 24 CHAP. III. Of Title by Invention. Of Patent Rights 25 Of Copyright 34 XXX CONTENTS OF THE SECOND VOLUME. CHAP. IV. Of Title by Gift and by Assignment. Page Of the Alienability of Personal Property . . . . . . . . 44 Of the Transfer of Choses in Action .. .. .. .. 45 Of Gift, or Gratuitous Transfer . . . . . . . . . . . . ibid. Of Donatio Mortis Causa. . . . . . . . . . . . . 47 Of Assignment, or Bargain and Sale .. .. .. .. .. 48 Of Fraudulent Gifts and Assignments .. .. .. .. 50 Of the Transfer of Current Coin and Negotiable Instruments . . 53 CHAP. V. Of Title by Contract. Of Premises .. .. .. .. .. •• .. .. 54 Of Contracts by Specialty and Simple Contracts .. .. .. ibid. Of Contracts written and verbal, arid of the Statute of Frauds in regard thereto . . . . . . . . . . . • • • • • 55 Of Contracts express and implied .. .. .. .. .. 57 Of Contracts executed and executory .. .. .. .. .. 58 Of the Consideration of a Promise .. .. .. .. .. 59 Of the Capacity to Contract .. .. .. .. .. .. 62 Of the Construction or Interpretation of Contracts . . • . 63 Of the Performance of Contracts .. .. .. .. .. ibid. Of Conditions Precedent .. ,. .. .. .. .. 64 Of the Law of Principal and Agent .. .. .. .. .. 65 Of the Contract of Sale 68 Of the Transmutation of Property .. .. .. .. .. 69 Of the Statute of Frauds as regards Contracts of Sale .. .. 70 Of Stoppage i« Transitu ., .. .. .. .. .. .. 71 Of Sales in Market Overt 72 Of implied Warranties on Sales .. .. .. .. .. 75 Of the Maxim of Caveat Emptor . . . . . . . . . • 76 Of express Warranties on Sales. . .. .. .. .. .. ibid. Of Factors and Brokers, and the Statutes relating to them . . 77 Of the Contract of Bailment .. .. .. .. .. .. 79 Of the different Species of Bailment .. .. .. .. 80 Of the different Degrees of Negligence for which Bailees in different Cases are liable .. .. .. .. .• •• •• 81 Of Special Property in Bailees .. .. .. .. .- ibid. Of Liens 82 Of Common Innkeepers .. .. .. .. .. .. 83 Of Common Carriers .. .. .. .. •• .. •• 84 Of the Contract of the Loan of Money .. .. .. .. 88 Of Interest ibid. Of Bottomry and Respondentia .. .. .. .. .. 91 CONTENTS OF THE SECOND VOLUME. XXXI CHAP. V.— {co>iti»ued.) Page Of Life Annuities .. .. .. .. ,. .. .. .. 93 Of the Contract of Partnership .. .. .. .. .. 98 Of the Contract of Guarantee .. .. .. .. .. ,. 103 Of Bonds .. .. 106 Of Contracts secured by Penalties in general .. .. .. .. 110 Of Bills of Exchange and Promissory Notes .. .. .. 112 Of Policies of Insurance .. .. .. .. .. .. .. 126 Of Charter-parties .. .. .. .. .. .. .. 138 Of Debt and Damages .. .. .. .. .. .. ..142 Of Specialty Debts, Debts by Simple Contract, and Debts of Record ibid. CHAP. VI. Of Title by Bankruptcy. Of the History of the Bankrupt Law .. .. .. .. .. 1+5 Of the Persons who may become Bankrupt.. .. .. .. 152 Of Adjudication of Bankruptcy . . .. .. .. .. .. 155 Of the Proceedings after Adjudication of Bankruptcy .. .. 165 Of the Effect of the Bankruptcy on the Property of the Bankrupt .. 176 CHAP. VIL Of Title by Will, and by Administration. Of acquiring personal Estates by Will and by Administration .. 193 Of the original State of the Law as to bequeathing Personalty . . ibid. Of the haw o{ Pars Raiionabilis .. .. .. .. .. .. l!)4 Of the present Power of bequeathing Personalty .. .. •• 195 Of the Origin and Progress of the Ecclesiastical Jurisdiction over Wills and Administrations .. .. .. .. .. .. 197 Of the Capacity to be Testator 200 Of the Solemnities of Wills 202 Of the Appointment of an Executor.. .. .. .. .. 204- Of Probate 205 Of the Grant of Administration .. .. .. .. .. 208 Of Next of Kin 209 Oi Admmistration cum lesta7nentu annexo .. .. .. .. 211 Of Administration durante minore estate, durante absentia, and pendente lite . . . . . . . . . . . . . . . . . . ibid. Of Administration f/e fconii »;ow .. .. .. .. .. 212 Of limited or special Administration .. .. .. .. .. ibid- Of the representative Character of Executors and Admniistrators 213 Of the difference between them in respect of Rights and Duties .. ibid. Of an Executor f/e Mn /or^ .. .. .. .. .. .. 214 Of the Duties of Executors and Administrators .. .. .. 215 XXXU CONTENTS OF THE SECOND VOLUME. CHAP. VIL— {continued). Page Of Devastavit 215 Of making Inventory .. .. .. .. .. .. .. 216 Of collecting the Assets .. .. .. .. .. .. ibiJ. Of Payment of Debts and the Priorities to be observed therein . . 217 Of Legacies 219 Of Specific Legacies .. .. .. .. .. ,, .. 220 Of Abatement of Legacies .. .. .. .. .. .. ibid. Of Ademption of Legacies .. .. .. •• .. •• ibid. Of Lapsed Legacies. . .. .. .. •• .. .. 221 Of Contingent Legacies .. .. .. .. .. .. .. ibid. Of the Residue 222 Of the Statute of Distributions 223 Of bringing into Hotchpot .. .. .. .. .. .. 225 Of the former Customs of London and York as to Distributions . . 226 CONCLUSION TO BOOK IL Of some mixed or irregular Subjects of Property. Of Emblements 230 Of Fixtures 233 Of Shares of Public Undertakings connected with Land .. .. 236 Of Animals Fera Natura passing with tlie Inheritance .. .. 237 Of Charters, Deeds, Family Pictures, and Monuments . . . . ibid. Of Heirlooms ,. .. .. .. .. .. .. .. 238 Book III. OF RIGHTS IN PRIVATE RELATIONS. CHAP. I. Of Master and Servant. Of the Rights of Persons in their Private Relations . . . . . . 240 Of the State of Slavery 241 Of Servants 243 Of Labourers .. .. .. •• .. •• .. •• 244 Of Apprentices i^id. Of the Law of Master and Servant, as regards each other . . . . 246 Of the Law of Master and Servant, as regards Strangers . . . . 248 CONTENTS^OF THE SECOND VOLUME. XXxi'u CHAP. 11. Of Husband and Wife. Page Of Canonical and Civil Disabilities afTecting the Contract of Marriage 253 Of the Prohibited Degrees of Relationship .. .. .. .. 258 Of the Marriage Acts .. .. ,. .. .. .. 261 Of Marriages abroad .. .. .. .. .. .. .. 273 Of the Legal Identity between Husband and Wife .. .. 275 Of the Husband's Power over the Wife's Person .. .. .. 277 Of the Effect of the IVIarriage on her Property . . . . . . 278 Of the Legal Disabilities of Married Women . . • . . . . . 282 Of the Legal Privileges and Protections of Married Women .. 283 Of the Manner in which the Legal Effects of Marriage are modified in Equity 285 Of Marriage Settlements 287 Of Arrangements for Separation .. .. .. .. .. 288 Of Divorce 290 Of Alimony 291 Of Judicial Separation .. .. .. .. .. .. 292 CHAP. in. Of Parent and Child. Of Legitimacy 295 Of the Conflict of the Law of England with that of the Civilians and Canonists as to the Legitimacy of ^n^e«a^4 .. .. •• 290 Of Proof of Non-access 297 Of the ultimum Tempus pariendi . . . . . . . . . • 298 0( the 'Wnt de Ventre inspicieyido .. .. .. .. .. 299 Of the Duties of Parents towards their Children .. .. .. 300 Of the Provisions of the Statute Law relative to the Maintenance of Children 302 Of the Power of Parents over their Children .. .. .. 305 Of Bastards 309 Of the Provisions of the Statute Law, as to maintaining Bastards ibid. Of the Legal Disabilities of Bastards .. •• .. .. 311 CHAP. IV. Of Guardian and W"ard. Of Infancy 314 Of tlie Age of Legal Capacity in different Cases . . . . ibid. VOL. I. C XXXIV CONTENTS OF THE SECOND VOLUME. CHAP. lY.— {continued.) Page Of the Capacities and Incapacities of Infants .. .. .. 315 Of Guardianship by Nature .. .. .. .. .. .. 320 Of Guardianship for Nurture .. .. .. .. .. •• 321 Of Guardianship in Socage .. .. .. .. .. .. 322 Of Guardianship by Statute .. .. .. .. •• •. 323 Of Guardianship by Election .. .. .. .. .. 324 Of Guardianship by Appointment of the Lord Chancellor .. .. 325 Of Guardianship arf Zi7e;« .. .. .. .. .. .. 326 Of Guardianship by Custom .. .. .. .. .. •• 327 Of the Rights and Duties of Guardians in general . . • . 328 Book IV. OF PUBLIC RIGHTS. PART I. OF THE CIVIL GOVERNMENT .. .. 331 CHAP. I. Of the Parliament. Of the Origin and History of Parliaments .. .. •• 333 Of the Manner and Time of Parliament's assembling •• .. 336 Of the Frequency with which Parliaments are to be held .. 340 Of the Constituent Parts of Parliament, and the Balance of the Con- stitution .. .. .. •• ihid. Of the House of Lords 312 Of the House of Commons .. .. .. .. .. .. 347 Of the Principle of Parliamentary Representation . . . . ihid. Of Knights of Shires, Citizens and Burgesses . . . . • . 348 Of the Number of Representatives . . . . . . . . . . ihid. Of the Power and Jurisdiction of Parliament .. .. .. .. 350 Of the Law and Custom of Parliament .. .. .. .. 354 CONTENTS OF THE SECOND VOLUME. XXXV CHAP. I. — (continued.) Page Of the Privileges of Parliament .. .. .. .. .. 355 Of the Laws and Customs relating to the House of Lords in particular oGO Of the Laws and Customs relating to the House of Commons in par- ticular 262 Of the Raising of Taxes . . . . . . . . . . . . . . ibid. Of Money Bills ibid. Of the Election of Members of the House of Commons . . . . 364 Of the Principle of the Elective Qualification .. .. .. ibid. Of the Qualifications of Electors in general .. .. .. .. 3G5 Of the Qualifications of Electors for Counties . . . . . . 366 Of the Qualifications of Electors for Boroughs .. .. .. 371 Of the Disqualifications of Electors .. .. .. t. 379 Of the Persons who may be elected Members .. .. .• 380 Of Issuing the Writs for Election .. .. .. .. •• 381 Of the Manner of Election for Counties .. .. •• .. 385 Of the Manner of Election for Boroughs .. .. .. .. 386 Of the Manner of Elections at the Universities .. .. •• 387 Of the Questions which may be put to a Voter at the Time of Election 388 Of the Tender of a Vote not Registered .. .. .. .. 389 Of the removal of the Military from the Place of Election .. .. ibid. Of Rioting at Elections 390 Of Bribery, Treating, and Undue Influence .. .. .. .. 391 Of the Return of the Writs 393 Of the Petition and Mode of Proceeding upon Controverted Elections 394' Of Vacating a Seat in Parliament . . . . . . . . • • 395 Of the Speaker of the House of Lords and the Speaker of the House of Commons .. .. .. .. .. .. .. 396 Of the Manner in which Bills are passed .. .. .. .. 397 Of the Adjournment, Prorogation, and Dissolution of Parliament 404 Of the Triennial and Septennial Acts .. .. .. .. 408 CHAP. II. Of the Sovereign, in his general Relation to the People; AND THE Law of Subject and Alien. Of the Original Contract between the Sovereign and the People .. 409 Of the Sovereign's Duty to govern according to Law .. .. 410 Of the Coronation Oath 411 Of Allegiance .. .. .. .. .. •• •• 413 Of the former Oath of Allegiance .• .. .. .. •• 415 Of. the Oath now substituted for the Oaths of Allegiance, Supremacy, and Abjuration .. .. .. •• .. .. •• 4'16 Of Natural-born Subjects 420 Of Aliens 423 Of Denizens 426 Of Persons naturalized .. .. .. .. .. •• 4'27 c2 XXXVl CONTENTS OF THE SECOND VOLUME. CHAP. III. Of the Royal Title. Page Of the hereditary Succession to the Crown . . . . . . . . 430 Historical View of the Successions that have taken place .. 431 Of the Exclusion Bill 452 Of the Revolution of 1688 ibid. Of the Act of Settlement 456 CHAP. IV. Of the Royal Family. Of the Queen Regnant, Consort, or Dowager .. .. .• 461 Of the Privileges of the Queen Consort .. .. ., .. ibid. Of the Husband of a Queen Regnant .. .. .. .. 466 Of a Queen Dowager .. .. .. .. .. .. .. 467 Of the Prince of Wales and his Consort, and the Princess Royal 468 Of the rest of the Royal Family 469 Of the Royal Marriage Act 472 CHAP. V. Of the Royal Councils, and of the Officers of State. Of the Councils belonging to the Sovereign .. .. .- .. 473 Of the Peers of the Realm as hereditary Councillors of the Crown ibid. Of their Right of Audience . . . . . . . . . . . . 474 Of the Privy Council 475 Of the Judicial Committee .. .. •• .. .. .. 479 CHAP. VI. Of the Roy'al Prerogative. Of the Limitation of the Royal Authority 482 Of Political or Civil Liberty 485 Of the Assertion of Liberties by Magna Charta, the Petition of Right, the Habeas Corpus Act, the Bill of Rights, and Act of Settle- ment .. .. .. .. .. .. .. .. 487 Of the Free Administration of the Law in the Courts of Justice . . 490 Of the Independence of the Judges . . . . . . . . 492 Of the Right of Petitioning the Crown 493 Of the Nature of the Royal Prerogative .. .. .. .. 494 Of the Sovereign's Pre-ei.iinence .. .. .. .. .. 495 Of bis Freedom from Civil Disabilities .. .. .. .. 496 Of his Irresponsibility .. .. .. .. .. .. •• 498 Of the Maxim that the King never dies .. .. .. .. ibid. Of the Maxim that the King can do no wrong . . . . . . ibid. CONTENTS OF THE SECOND VOLUME. XXXvii CHAP. \ I.— {continued.) Page Of the Manner in which the royal Grant may be avoided, or Redress obtained from him .. .. .. .. ,. .. .. 499 Of Parliamentary Remonstrance against the Acts of the Sovereign 500 Of Parliamentary Impeachment of his Advisers . . . . , . 502 Of his Exemption from Laches .. .. .. .. .. 503 Of the Bar of his Rights by Lapse of Time .. .. .. .. ibid. Of his Right of Embassy to Foreign States, and of the Law of Ambassadors . . . . . • . . . . « . . . 506 Of his Right to make Treaties 512 Of his Right to make War and Peace .. .. .. .. 513 Of his Right to issue Letters of Marque and Reprisal . . . . 514 Of his Right to grant Safe Conducts •• .. .. .. 516 Of his Right to reject Laws .. ., .. .. .. ..518 Of his Right to raise and regulate Armies and Fleets •• .. 519 Of his Right to appoint Ports and Havens .. .. .. .. 521 Of his Right to erect Beacons, Light-houses and Sea-marks .. 523 Of his Right to prohibit the Importation or Exportation of Arms, &c. 524 Of his Right to confine his Subjects to the Realm, and to recal them to the Realm 525 Of his Right of erecting Courts of Judicature .. .. .. .. 526 Of his Right of pardoning Offences .. .. .. .. .. 527 Of his Right of issuing Proclamations .. .. .. .. .. 528 Of his Right as Guardian of Idiots and Lunatics, and of the Law relating to them .. .. .. .. .. .. .. 529 Of his Right as the Fountain of Honour, Office and Privilege . . 535 Of his Right to establish Markets and Fairs 537 Of his Right to regulate Weights and Measures .. .. .. ibid. Of his Right to stamp and regulate the current Coin . • . . 540 Of his Rights as Head of the Church ; and herein of Convocations 544 CHAP. VII. Of the Royal Revenue. Of the Exchequer 548 Of the ordinary Revenue of the Crown .. .. •• .. 549 Of the Custody of the Temporalities of Bishops .. .. .. 550 Of the First Fruits and Tenths, and herein of the King's Books, and of Queen Anne's Bounty .. .. .. .. .. 552 Of the Demesne Lands of the Crown . . . . . . . . . . 554 Of the Antient Revenue from Purveyance and Pre-emption, and the Revenue given iii Compensation for it .. .. .. 556 Of Profits from Forests .. .. .. .. .. .. ..558 Of Profits from Courts of Justice .. .. .. .. .. ibid Of Royal Fish, Wrecks, Trcasurc-trovc, Waifs and Estrays .. .. ibid. Of Royal Mines " 569 XXXVIU CONTENTS OF THE SECOND VOLUME. CHAP. Y II.— (continued.) Page Of Profits from Forfeitures of Lands and Goods ; and herein of Deodands 570 Of the Extraordinary Revenue of the Crown, by Taxation .. 574 Of the Land-tax 576 Of the Customs 582 Of the Excise 587 Of the Post Office Duties 590 Of the Stamp Duties ..592 Of the Assessed Taxes . . . . . . . . . . . . 594 Of the Duty on Offices and Pensions .. .. .. .. .. 595 Of the Income Tax .. .. .. .. .. .. .. ibid. Of the National Debt 596 Of the Public Funds 598 Of the Consolidated Fund and the Public Income .. .. .. 600 Of the Civil List 602 CHAP. VIIL Of the Royal Forces. Of the History and Progress of our Military System . . . . . . 605 Of the former and present Militia Force . . . . . . . . 609 Of the Yeomanry and other Volunteers .. .. .• .. 610 Of the Regular Army .. .. .. .. .. .. 611 Of the Mutiny Act, Articles of War and Courts Martial . . . . 612 Of the Navy 615 Of Impressment .. .• .. .. .. •• •• ..616 Of the Naval Discipline Act .. .. .. .. .. 617 Of the Marines 619 Of the Power of the Crown in Modern, as compared with Antient Times 620 CHAP. IX. Of the Nobility and other Ranks. Of the Degrees of Nobility 623 Of the Commonalty .. .. .. .. .. .. .. 633 CHAP. X. Of Magistrates and other Public Officers. Of the Nature of Offices in general .. .. •• •• •• 640 Of the Sheriff 644 Ofthe Under Sheriff • 653 Of the Deputy Sheriff ibid. Of the Coroner . . . . . . . . . . 655 Of the Justices of the Peace . . .. .. .. .. •• 663 Of Constables 672 CONTENTS OF THE THIRD VOLUME. XXXIX VOLUME III. Book IV. OF PUBLIC RIGHTS— continued. PAET II. Page OF THE CHURCH 1 CHAP. I. Of the Ecclesiastical Authorities. Of the Clergy generally .. .. .. .. •» •• •• 2 Of Archbishops and Bishops.. .. .. .. •• •• 6 Of a Dean and Chapter .. .. .. ». •• •• •• 1" Of Archdeacons .. .. .. .. .• ■• •• IS Of Rural Deans 19 Of Parsons, or Rectors and Vicars .. .. .. •• •• *''''^' Of Appropriations .. .. •• •• •• •• •• 21 Of Lay Appropriators .. .. .. .. •• •• 22 Of Perpetual Curates . . . . . • . . • • • • • • 25 Of Sinecure Rectors .. .. .. .. .. t. .. '-^6 Of Presentation .. .. .. .. •• .. •• •• 27 Of Institution 30 Of Collation i^i^- Of Induction i^'«^- Of Donatives .. .. .. .. •• •• •• •• 31 Of Residence .. .. .. .. .. .. •• •• 33 Of Pluralities 3G Oi \\o\Aing in Commendam .. .. .. •• •• •• 37 Of Curates 38 Of Churchwardens . . . . . . • • . . • • • • 40 Of Church Rates 41 Of Parish Clerks 43 Of Sextons «^''^- xl CONTENTS OF THE THIRD VOLUME. CHAP. II. Of the Doctrines and Worship of the Church, and herein of the Laws as to Heresy and Nonconformity. Page Of the Articles of Faith 45 Of the Liturgy id Of the Crown's Supi'emacy . . . . . . . . • . . . 47 Of Heresy .. ,. .. .. .. .. .. .. 48 Of Nonconformity .. .. ., .. .. .. .. 53 CHAP. III. Of the Endowments and Provisions of the Church. Of Ecclesiastical Property in general .. .. .. .. .. 66 Of Glebe G9 Of Advowsons .. .. .. .. .. .. .. .. 70 Of Lapse .. .. .. .. .. .. .. .. 73 Of Simony .. .. .. .. .. .. .. .. 76 Of Tithes 79 Of Commutation of Tithes 90 Of the Estates which Ecclesiastical Persons may hold .. •• 94 Of Antient Restraints on Alienation of Ecclesiastical Property .. 96 Of Charging Benefices .. .. .. .. .. .. 99 Of Ecclesiastical Grants and Leases under Modern Statutes .. 100 Of Surplice Fees, Easter Offerings, and Mortuaries .. .. 105 CHAP. IV. Of Extensions of the Original Church Establishment — and herein OF Chapels — of New Churches and Chapels — and New Eccle- siastical Districts and Parishes. Of Parish Churches 113 Of Chapels 114 Of the Church Building Acts .. .. .. .. .. ..116 Of the Ecclesiastical Com'nissioners .. .. .. .. 117 Of New Sees and New Arrangements of Dioceses .. .. .. 118 Of the Suspension of Canonries, &c. .. .. .. .. 119 Of the New Parishes Acts 120 CONTENTS OF THE THIRD VOLUME. xli PART III. OF THE SOCIAL ECONOMY OF THE EEALM 125 CHAP. I. Of the Laws relating to Corporations. Of the Origin of Corporations .. .. .. .. .. .. 126 Of Corporations Aggregate and Sole .. .. .. .. 128 Of Corporations Ecclesiastical and Lay .. .. .. .. 130 Of the Corporations Civil and Eleemosynary .. .. ., ibid. Of the Creation of Corporations . . .. .. .. .. .. 132 Of the Incidents of Corporations .. .. .. .. .. 135 Of Qualified Corporations .. .. .. .. .. .. 142 Of Joint Stock Companies .. .. .. .. .. .. 143 Of the Visitation of Corporations .. .. .. .. .. 14S Of Hospitals 149 Of Colleges in the Universities .. .. .. .. .. .. L'JO Of the Dissolution of Corporations .. .. .. .. .. 151 Of Municipal Corporations .. .. .. .. .. .. 153 CHAP. n. Of the Laws relating to the Poor. Of the antient Relief of the Poor 165 Of the Overseers of the Poor .. .. .. .. .. 166 Of the early Law of Settlement, Relief and Removal .. .. .. 168 Of Gilbert's Act 170 Of the Select Vestry Act . . .. .. .. .. .. .. ibid^ Of the Poor Law Amendment Act .. .. .. .. .. 172 Of the Poor Law Board . . . . . . . • • • . . . . ibid. Of the present Law of Settlement, Relief and Removal .. .. 175 Of the Poor Rate 187 CHAP. III. Of the Laws relating to Charities and Benevolent Institutions. Of Charities ; Of the Statutes and General Principles of the Law relating thereto .. .. .. .. .. .. .. ]!)3 Of the Charitable Trusts Acts 1!J7 Of Benevolent Institutions . . . . . . . . . . . . 203 xlii CONTENTS OF THE THIRD VOLUME. CHAP. 111.— (continued.) Page Of Savings Banks 204 Of Friendly Societies 208 Of Benefit Building Societies .. .. .. .. .. 210 Of Industrial and Provident Societies .. .. .. .. .. 211 CHAP. IV. Of the Laws relating to Education. Of the Education of the People 213 Of Grammar Schools .. .. .. .. .. .. .. 214 Of Sites for Schools 216 Of Parliamentary Grants for the purposes of Education .. .. 219 Of Education under the Poor Law .. .. .. .. ., 222 Of Reformatory Schools .. .. .. .. .. .. 223 Of Industrial Schools 224 CHAP. V. Of the Laws relating to Lunatic Asylums and their Management. Of County Lunatic Asylums .. .. .. .. .. .. 226 Of Asylums, Hospitals, and Licensed Houses for Lunatics . . 230 Of the Commissioners in Lunacy .. .. .. .. .. ibid. Of the Visitation of Lunatics .. .. .. .. .. 231 CHAP. VL Of the Laws relating to Gaols. Of Common Gaols and Houses of Correction .. .. .. .. 233 Of Borough Gaols .. .. .. .. .. ., .. 236 Of the Visitation of Gaols .. .. .. ,. .. ., 237 Of Prison Discipline .. .. .. .. ., ,, .. 238 Of the Inspectors of Gaols . . . . . . . . . . , . ibid. Of the Queen's Prison .. .. .. .. .. .. 239 Of the Directors of Convict Prisons . . . . . . . . . . 240 Of the Millbank Prison . . . . . . , . . , . . ibid. Of the Parkhurst Prison . . . . . . , , . . . . , , ibid. Of the Pentonville Prison .. .. .. .. .. .. 241 CONTENTS OF THE THIRD VOLUME. xliii CHAP. VII. Of the Laws relating to Highways and Bridges. Page Of the Repair of Highways .. .. .. .. .. ,. 242 Of the Repair of Bridges .. .. .. .. .. .. 243 Of Highways in general .. .. .. .. ., ,. .. 246 Of the Highway Acts .. .. .. 250 Of Turnpike Roads 251 CHAP. VIII. Of the Laws relating to Navigation — and to the Mercantile Marine. Of the Navigation Acts .. .. .. .. .. ., ., 256 Of tlie Ownership, Registration, and Transfer of Merchant Ships 261 Of the Laws relating to Merchant Seamen .. .. .. .. 263 Of Pilotage 267 Of Lighthouses, Beacons and Sea Marks .. .. .. .. 270 Of the Liability of Shipowners for Loss or Damage . . . . 272 Of Fisheries 276 CHAP. IX. Of the Laws relating to the Sanatory Condition of the People. Of the Plague 278 Of Quarantine 279 Of the Cholera 280 Of the Small Pox ibid. Of "The Public Health Act, 1848" 282 Of the Local Government Acts .. .. .. .. .. ihid. Of "The Diseases Prevention Act, 1855" 284 Of" The Nuisances Removal Act for England, 1855 " .. .. ibid. Of Miscellaneous Statutes connected with the Subject . . 285, n. CHAP. X. Of the Laws relating to Public Conveyances. Of Stage Coaches 287 Of Railways 289 Of Conveyances by Water . . . . . . . . . . . . 293 Of "The Passengers' Act, 1855" 294 xliv CONTENTS OF THE THIRD VOLUME. CHAP. XI. Of the Laws relating to the Press. Page Of the Liberty of the Press 297 Of Printing in general .. .. .. .. •• .. 298 Of Newspapers .. .. .. .. .. .. .. .. 300 Of Pamphlets ibid. CHAP. XIL Of the Laws relating to Houses of Public Reception and Entertainment. Of Public Houses 304 Of Excise Licences .. .. .. .. .. .. .. 305 Of Justices' Licences .. .. .. .. .. .. .. ibid. Of the Beer Acts 306 Of Refreshment Houses .. .. .. .. .. .. .. ibid. OfTheatres 308 CHAP. XIIL Of the Laws relating to Professions. Of Physicians .. .. .. .. .. .. .. ..311 Of Surgeons 313 Of Apothecaries .. .. .. .. .. .. .. .. 315 Of Chemists and Druggists .. .. .. .. ., .. 317 Of the Medical Acts 318 Of Attornies and Solicitors . . . . . . , . . . . . 323 CHAP. XIV. Of the Laws relating to Banks. Of the Origin of the Establishment of Banks .. .. .. .. 329 Of the Bank of England 330 Of Banks of Issue, or of mere Deposit .. .. .. .. ,, 331 Of Branches of the Bank of England .. .. .. .. 333 Of Joint Stock Banks .. * .. .. .. .. .. .. ibid. Of the Banking Act of 1844 336 Of the new Regulations as to the Bank of England Charter . . . . ihid. Of the new Regulations as to the Banks of Issue . . . . . . 338 Of the new Regulations as to Banks in General .. ., .. 339 Of the Companies Act of 1862, as it affects Banking .. .. ibid. CONTENTS OF THE THIRD VOLUME. xlv CHAP, XV. Of the Laws relating to the Registration of Births, Deaths, AND Marriages. Page Of the Ecclesiastical Mode of Registration ., ,. .. .. 311 Of the Civil Mode of Registration 343 Of the Registration of Births .. .. .. .. .. .. 345 Of tlie Registration of Marriages .. .. .. .. .. 346 Of the Registration of Deaths . . . . . . . . . . . . ibid. Book V. OF CIVIL INJURIES. CHAP. I. Of the Redress of Injuries by the mere Act of the Parties. Of Wrongs in General .. .. .. .. .. .. .. 350 Of Self-defence 351 Of Recaption or Reprisal . . . . . . . . . . . . 352 Of Entry 353 Of Abatement of Nuisances .. .. .. .. .« •• 354 Of Distress 355 Of the Seizure of Heriots, Waifs, &c, .. .. .. .. .. 368 Of Accord and Satisfaction .. .. .. .. .. •• 369 Of Arbitration 370 CHAP. II. Of Redress by the mere Operation of Law. Of Retainer .. .. .. .. .. .. .. •• 375 Of Remitter 376 CHAP. in. Of the Courts in general. Of Courts generally .. .. .. .. •• •• •• 379 OfAttornies 381 OfCounsel 383 xlvi CONTENTS OF THE THIRD VOLUME. CHAP. IV. Of the Courts of General Jurisdiction — and, herein, of those OF Common Law and Equity. Page Of the Saxon Courts 389 Of the Court Baron 391 Of the Hundred Court 392 Of the County Courts 393 Of the District or New County Courts 396 Of the Court of Exchequer 402 Of the Court of Common Pleas 408 Of the Court of Queen's Bench .. .. .. .. .. ibid. Of the Judges of the Land 412 Of the High Court of Chancery .. .. .. ., .. 414 Of the Court of Exchequer Chamber .. .. .. .. .. 428 Of the Court of the House of Lords 429 Of the Courts of Assize and Nisi Prius . . . . . . . . . . 430 Of the Court of Bankruptcy 433 Of the Court of Probate .. .. .. .. .. .. .. ibid. Of the Court for Divorce and Matrimonial Causes .. .. ibid. CHAP. V. Of. the Courts of General Jurisdiction (continued) — and, herein, OF the Courts Ecclesiastical and Maritime, Of the Formation of the Ecclesiastical Courts .. .. .. 437 440 . ibid. 441 • ibid. 442 . 444 449 . 452 453 . 455 458 Of the Archdeacon's Court .. Of the Consistory Court . . Of the Court of Arches Of the Court of Peculiars . . . . Of the Appeal to the Judicial Committee of the Privy Council Of the Injuries cognizable in the Ecclesiastical Courts Of the Proceedings in the Ecclesiastical Courts Of the Maritime Courts . . Of the Injuries cognizable in the Maritime Courts Of the Proceedings in the Maritime Courts Of the Appeal to the Judicial Committee of the Privy Council CHAP. VI. Of Courts of a Special Jurisdiction. Of the Court of the Commissioners of Sewers . . . . . . . . 461 Of the Court of the Duchy Chamber of Lancaster . . . . . . 464 Of the Courts of the Counties Palatine .. .. .. .. ibid. Of the Court for the Stannaries .. .. .. .. .. 466 Of Borough and other Local Courts .. .. .. .• .. 467 Of the University Courts 469 CONTENTS OF THE THIRD VOLUME. xlvii CHAP. VII. Of Injuries cognizable in the Common Law Courts, — and herein OF the Remedy by Action generally. Page Of Actions generally .. .. .. .. .. .. .. 473 Of Actions Real, Personal, and Mixed . . . . • . • . 475 Of Personal Actions .. .. .. .. .. .. .. 477 Of Actions on Contracts or Torts .. .. .. .. •• ibid. Of Nonfeasance, Misfeasance, or Malfeasance . . . . . i . . ibid. Of the different Forms of Personal Actions .. .. .. ibid. Of Actions Local or Transitory .. .. .. .. .. .. 479 Of Actions for specific Recovery of Property or for Damages .. 480 Oi Damnum absqiie Injuria .. .. .. .. ., .. 482 Of the Transfer of Right of Action, by Act of Law . . . . 483 Of Action for a Death by the Personal Representatives of the Person killed . . . . 484 CHAP. VIII. Of Injuries cognizable in the Common Law Courts — continued. Of Injuries affecting Personal Rights .. .. .. .. .. 486 Of Injuries affecting Property in things Real .. .. .. 500 Of Injuries affecting Property in things Personal .. .. .. 535 Of Injuries affecting a Man's Rights in his Private Relations . . 552 Of Injuries affecting a Man's Public Rights .. .. .. .. 558 CHAP. IX. Of the Limitation of Actions. Of the Statutes of Limitation .. .. .. .. .. .. 5GI Of Limitations as to Entry or Distress and Suits for the Recovery of the Realty .. .. .. •• 5G2 Of Limitations as to certain Actions not brought for the Recovery of Things Real 570 CHAP, X. Of the Proceedings in an Action. Of the Law Terms 578 Of the Process •''S3 xlviii CONTENTS OF THE THIRD VOLUME. CHAP. X.— (continued.) Page Of the Pleadings 593 Of the Trial and Evidence 607 Of the Judgment 654 Of Proceedings in Error . . . . . . . . . . . . 675 Of Execution 679 Of the Motion by way of Interpleader .. •• .. .. 692 Of the Writ of Revivor 693 Of the Writ of Scire Facias 696 CHAP. XI. Of the Proceedings in some particular Actions. Of the Action of Dower .. .. .. .. .. •• 698 Of the Action of Qiiare Impedit .. ., . • . . • . • • 701 Of the Action of Replevin 706 Of the Action of Ejectment .. .. .. .. .. •• 710 CONTENTS OF THE FOURTH VOLUME. xlix VOLUME IV. Book V. OF CIVIL INJURIES— continued. CHAP. XII. Of Prerogative Writs and other Extraordinary Remedies in the Courts of Common Law. Page Of Motions 1 Of the Writ of Procedendo .. .. .. .. .. .. 4 Of the Writ of Mandamus .. .. .. .. .. •• 5 Of the Writ of Prohibition .. 10 Of the Writ of Quo Warranto .. .. .. .. .. .. 14 Of the Writ of Habeas Corpus 18 Of the Writ of Certiorari 29 CHAP. XIII. Of Injuries cognizable in the Courts of Equity, — with their Remedies. Of the Distinction between Courts of Law and Equity .. .. 31 Of the Subjects of Jurisdiction in Equity .. .. .. .'. 38 Of the Kinds of Relief in Equity .. .. .. .. .. 39 Of Protecting and Enforcing the Execution of Trusts ,. .. 40 Of the Specific Performance of Agreements . . . . . . . . 44 Of an Injunction .. .. .. .. .. .. .. 45 Of Perpetuation of Testimony .. .. .. .. .. .. 46 Of a Suit in Chancery .. .. .. .. .. .. 49 Of a Decree .. .. .. .. .. .. .. .. 58 Of a Rehearing .. .. .. ,. .. .. .. CI Of a Bill of Review .. .. .. .. .. .. .. ibid. Of an Appeal to Parliament .. .. .. .. .. 62 Of an Amended Bill 63 Of an Order of Revivor . . . . . . . , . . . . 64 Of a Supplemental Order .. .. .. .. .. .. ihid. Of a Special Case for the Opinion of tlie Court .. .. .. ibid. Of Motions and Petitions . . . . . . . . . . . . C5 Of Informations in the Name of the Attorney-General .. .. ibid. VOL. I. d 1 CONTENTS OF THE FOURTH VOLUM% CHAP. XIV. Of Injuries proceeding from or affecting the Crown. Page Of the Manner of obtaining Redress from the Crown . . . . 67 Of the Manner of Redressing Injuries affecting the Crown .. 72 Of an Inquisition or Inquest of Office .. .. .. .. .. ibid. Of an Extent 75 Of an Extent in Aid 80 Of Scire Facias to repeal Patents . . . . . . . . . . 82 Of an Information in the Exchequer .. .. .. .. .. ibid. Book VI. OF CRIMES. CHAP. I. Of the Nature of Crimes and their Punishments. Of the Distinction between Crimes and Civil Injuries .. .. 86 Of Misdemeanors and Felonies .. .. .. .. .. 92 Of the Power of Human Punishment .. .. .. .. .. 96 Of the End of Human Punishment . . .. .. .. .. 98 Of the Measure of Human Punishment .. .. .. .. 99 CHAP. II. Of the Persons capable of committing Crimes. Of Persons who are not capable of committing Crimes . . . . 106 Of the Excuse of Infancy .. .. .. .. .. .. 108 of Idiotcy or Lunacy .. .. .. ., ..110 of Drunkenness .. .. .. .. .. 113 of Misfortune or Chance >. .. •> .. 114 of Ignorance or Mistake . . . . . . . . ibid. of Compulsion and Necessity .. .. .. ..115 Of the Incapacity of the Sovereign to commit Crime .. .. 121 CHAP. III. Of Principals and Accessories. Of a Principal in the First Degree .. .. .. .. .. 122 Of a Principal in the Second Degree .. .. .. .. ibid. Of Accessories .. .. .. .. .. .. .. ..123 Of Accessories before the Fact .. .. .. .. .. 125 Of Accessories after the Fact .. .. .. .. ., ..126 Of the Punishment of Accessories .. .. .. .. ., 127 CONTENTS OF THE FOUllTH VOLUME. li CHAP. IV. Of Offences against the Person. Page Of Offences against Persons, their Property and Public Rights .. 130 Of Homicide 131 Of Justifiable Homicide .. .. .. .. •• .. .. 132 Of Excusable Homicide .. .. .. .. .. .. 136 Of Self-Murder 143 Of Manslaughter 146 Of Murder 150 Of Attempts to Murder 161 Of Acts causing Danger to Life or Bodily Harm .. .. .. 162 Of Procuring Miscarriage .. .. .. .. •• .. 166 Of Abduction of Females 167 Of Rape 169 Of Abusing Children .. .. .. .. .. .. .. 175 Of the Crime against Nature .. .. .. .. .. ibid. Of endangering Railway Passengers .. .. .. .. .. 178 Of setting Spring Guns, &c. .. .. .. .. .. .. 179 Of Assaults, Batteries and False Imprisonment .. .. .. ibid. CHAP. V. Of Offences against Property. Of Arson and Burning .. .. .. .. .. .. .. 182 Of Burglary 187 Of Sacrilege 195 Of Housebreaking . . . . . . . . . . . . . . ibid. Of Simple Larceny .. .. .. .. •. •• ..196 Of Larceny in a Dwelling-house .. .. .. .. .. 207 Of Larceny in Ships, &c. 208 Of Larceny from the Person .. .. .. .. .. ibid. Of Assault with intent to Rob ,. .. .. .. .. ..211 Of extorting Money by Threats, Accusations, &c. .. .. 212 Of Larceny or Embezzlement by Clerks, Servants, &c. . . . . 213 Of Larceny in relation to the Post Office .. .. .. •• 218 Of Receiving Stolen Property .. .. .. .. .. .. 220 Of Malicious Mischief 222 Of Forgery 225 Of Obtaining Money by False Personation . . . . . . 229 Of Obtaining Money by False Pretences .. .. .• .. ibid. Of Fraudulent Concealment of Deeds or Falsification of Pedigree 230 d 2 lii CONTENTS OF THE FOURTH VOLUME- CHAP. VI. Of Offences against the Government. Page Of Treason 232 Of Misprision of Treason .. .. .. .. .. .. 248 Of Discharging Fire Arms or Missiles, &c. at the Queen . . . . 250 Of the Act for the better Security of the Crown, &c. . . . . ibid. Of Scandal against the Sovereign .. .. .. .. .. 251 Of Praemunire . . .. .. .. .. .. .. .. 252 Of Contempts against the Title of the Sovereign .. .. .• 269 Of Contempts against the Crown's Ecclesiastical Supremacy .. ibid. Of Contempts against the Royal Palaces .. .. .. •• ibid. Of Maladministration of High Officers 270 Of Selling Public Offices 271 Of Offences relating to the Coin 271 Of Offences relating to the Royal Stores, Ships, &c. .. .. .. 277 Of Serving Foreign States .. .. .. .. .. .. 278 Of Desertion, or Seducing to Desert .. .. .. .. .. 279 Of Refusing or Neglecting to take the Oath of Allegiance, &c. .. 280 Of Administering Unlawful Oaths, or being engaged in Illegal Societies ibid. Of Miscellaneous Contempts against the Prerogative .. .. .. 283 CHAP. VII. Of Offences against Religion. Of Apostasy 284 Of Heresy 286 Of Blasphemy .. .. .. .. .. .. .. .. ibid. Of Reviling the Ordinances of the Church ,. .. .. .. 287 Of Profane Swearing .. .. .. .. .. ,, .. 289 Of using Pretended Witchcraft, &c. . . . . . . . . ibid. Of Religious Imposture .. .. .. .. .. .. .. 291 Of Simony 292 Of Profanation of the Lord's Day .. .. .. .. .. ibid. CHAP. VIII. Of Offences against the Law of Nations. Of the Law of Nations 295 Of the Violation of Safe-Conducts, &c. .. .. .. .. 297 Of the Violation of the Rights of Ambassadors . . . . . . 300 Of Piracy . . . . . . . . . . . . . • . . ibid. 'CONTENTS OF THE FOURTH VOLUME. liU CHAP. IX. Of Offences against Public Justice. Page Of Stealing, Injuring, and Falsifying Records.. .. .. ,. 303 Of Striking, or other Outrage in the Superior Courts .. .. 304 Of Intimidation or Improper Demeanour towards Parties or Wit- nesses . . . . . . . . . . . . . . . . . . 305 Of Obstructing a Lawful Arrest or Process . . . . . • 306 Of Escape and Prison-breach , . . . . . . . . . . . 307 Of Rescue and aiding Prisoners to Escape . . . . . . . . 309 Of taking a Reward for Stolen Goods .. .. .. .. .. 312 Of Compounding of Felony .. .. .. .. .. .. 313 Of Misprision of Felony . . .. .. .. .. .. .. ibid. Of compounding of Informations upon Penal Statutes and Misde- meanors .. .. .. .. .. .. .. .. 314 Of Common Barratry .. .. .. .. .. .. .. 315 Of Maintenance .. .. .. .. .. .. ,. 31() Of Champerty 317 Of Conspiracy . . .. .. .. .. .. .. .. 318 Of Perjury 321 Of Bribery 324 Of Negligence in Public Officers of Justice .. .. .. .. 326 Of Oppression and Partiality.. .. .. .. .. .. ibid. Of Extortion 327 CHAP. X. Of Offences against the Public Peace. Of Riotous Assemblies .. .. .. .. .. ., .. 328 Of riotously Demolishing Churches, Houses, Machinery, &c. .. 330 Of Sending Letters threatening to kill, &c. .. .. ,. .. 331 Of Affrays 332 Of Riots, Routs, and Unlawful Assemblies . . . . , . . . 333 Of Tumultuous Petitioning .. .. .. .. .. .. 335 Of Forcible Entry and Detainer.. .. .. .. .. ,. 336 Of Riding or going armed, &c. .. .. .. .. .. 337 Of Spreading False News . . . . . . . , . . . . ibid. Of False and Pretended Prophecies.. .. .. .. ., ibid. Of Challenges to fight 338 Of Libels ibid. CHAP. XI. Of Offences against Public Trade. Of Smuggling .. .. .. .. .. .. ,. .. 342 Of Frauds by Traders contrary to the Law of Bankruptcy . . 344 U\ CONTENTS OF THE FOURTH VOLUME, CHAP. XI. — {continued.) Page Of Cheating in Public Trade 344 Of Monopoly 346 Of Assaulting; or Molesting Traders .. .. .. .. .. 347 CHAP. XII. Of Offences against the Public Health, Police, or Economy. Of Selling Unwholesome Provisions .. .. .. .. .. 348 Of Coramon Nuisances . . . . . . . . . . . . 350 Of Bigamy 3.58 Of Lewdness .. .. .. .. •. .. .. .. 361 Of Drunkenness .. .. .. .. .. .. .. .. 362 Of Furious Driving .. .. .. .. .. .. .. 363 Of Cruelty to Animals .. •• .. .. .. .. .. ibid. Of Concealing a Birth .. .. .. .. .. •• 364 Of Taking up Dead Bodies 365 Of Refusing to serve a Public Office .. .. •• .. ibid. Of Unlawfully Pursuing Game by Night .. .. .. .. 366 Of Vagrancy and Disorderly Conduct . . . . . . . . 368 CHAP. XIII. Of the Means of Preventing Offences. Of Preventing the Commission of Crimes . . . . Of Security for Keeping the Peace . . Of Security for Good Behaviour . . 370 373 375 CHAP. XIV. Of Courts of a Criminal Jurisdiction. Of the Courts of Criminal Jurisdiction in general Of the High Court of Parliament .. Of the Court of the Lord High Steward Of the Court of Queen's Bench Of the High Court of Admiralty. . Of the Courts of Oyer and Terminer and General Gaol Of the Central Criminal Court . . Of the Court of General Quarter Sessions of the Peace Of the Sheriff's Tourn Of the Court Leet or View of Frankpledge Of the Court of the Coroner Of the Court of the Clerk of the Market . . Of the Court of the Lord Steward of the Household Of the University Courts Deliv ery 378 379 382 387 390 393 395 397 401 ibid. 403 ibid, 405 406 CONTENTS OF THE FOURTH VOLUME. Iv CHAP. XV. Of Summary Convictions. Page Of Summary Proceedings generally .. .. •• .. •• 409 Of Summary Proceedings under the Excise .. •• •. 410 Of Summary Proceedings before Justices of the Peace .. .. ibid. Of Assault Cases .. .. .. .. .. .. •• ibid. Of the Juvenile Offenders' Acts . . .. .. .. •• •• 412 Of the Summary Jurisdiction in Cases of Larceny, &c. .. .. 413 Of the Course of Proceedings on Summary Convictions .. .• 414 Of the Process on Attachments for Contempt .. .. •• 419 CHAP. XVT. Of Arrests for Felony or Misdemeanor. Of Arrests under Warrant .. .. .. .. •• •• 424 Of Arrests by Officers without Warrant . . . . . • . • 428 Of Arrests by Private Persons without Warrant . . . . • • 429 Of Arrests under Hue and Cry .. .. .. •• •• 431 CHAP. XVII. Of Commitment and Bail. Of taking the Examination .. .. •• •• •• •• 4.33 Of Discharging .. .. .. .• .. •• •• 4ii4 Of Bailing ibid. Of Committing to Gaol 43(J CHAP. XVIII. Of the several Modes of Prosecution. Of a Presentment . . .. .. .. .. •• •• •• 438 Of an Indictment .. .. .. •• •• •• •• 439 Of an Information .. .. •• •• •• •• •• 4;j8 CHAP. XIX. Of Process : and herein of Certiorari. Of Process on Indictment .. .. .. .. .. •• 4()5 Of Capias and Bench Warrant ibid. Of Outlawry 467 Of Certiorari * 34 INTRODUCTION. [preme riglits of legislature were lodged in the two houses only, and the cro\^Ti had no negative upon their proceed- ings, they might be tempted to encroach upon the royal prerogative or perhaps to abolish the royal office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equihbrium of power between one branch of the legisla- tm-e and the rest. For if ever it should happen that the independence of any one of the three shovdd be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our consti- tution. The legislature would be changed from that which (upon the supposition of an original contract, either actual or impKed,) is presimied to have been originally set up by the general consent and fimdamental act of the society: and such a change, however effected, is, according to Mr. Locke (^), (who perhaps carries his theory too far,) at once an entire dissolution of the bands of government ; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power. Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, we are now to remark that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the light of that authority to make laws ; that is, ia the words of oiu' definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a col- lective body, composed of a mrdtitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform vnU. But, inasmuch {g) On Government, part 2, § 212. SECT. II.] OF THE NATURE OF LAWS IX GEXERAL. 35 [as political communities arc made up of many natiu*al persons, each of whom has his particular will and inch- nation, these several vnhs cannot by any natural union be joined together, or tempered and disposed into a lasting hai-mony, so as to constitute and produce that one imi- form will of the whole. It can therefore be no othen\dse produced than by a political union ; by the consent of all persons to submit their ovm private wills to the AviU of one man, or of one or more assembhes of men, to whom the supreme authority is entrusted : and this will of that one man, or assemblage of men, is in different states, accord- ing to their different constitutions, understood to be law. Thus far, as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive di- rections from the state declaratoiy of that its will. But as it is impossible, in so great a multitude, to give injunc- tions to every particular man, relative to each particular action, it is therefore inctmibent on the state to establish general rules, for the perpetual infomiation and direction of aU persons in all points, whether of positive or negative duty. And this, in order that every man may know wiiat to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of liis natural Hberty ; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the pubhc tranquillity. Municipal law, in a general point of view, may be said to consist of several parts : one, declaratory ; w hereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down : another, directory ; where- by the subject is instructed and enjoined to observ^e those rights, and to abstain from the commission of those wTongs; d2 36 INTRODUCTION. [a third, remedial; wlierchy a method Is pointed out to reco- ver a man's private rights, or redi'ess his private Avrongs: to which may be added] — in case of a law by which any pubhc A\Tong is prohibited, or piibhc duty enjoined — a fom-th, viz. the part which contains [the sanction], that is, the provision for enforcing or promoting its observance. [With regard to the first of these, the declaratory part of miuiicipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was shghtly touched, deserves a more particular exphcation.] Those rights then [which God and nature have established, and may therefore be called natural rights, such as are life and liberty, need not the aid of hmuan laws to be effectually invested in every man ; neither do they receive any mate- rial increase of strength when declared by the mimicipal laws to be in^dolable. On the contrary, no human legis- lature can justifiably abridge or destroy them, miless the owner shall himself commit some act that amounts to a forfeiture. Neither do di-^ane or natiu-al duties (such as, for instance, the worship of God, the maintenance of child- ren, and the like) receive a much stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as mmxler, theft;, and perjury ; Avhich con- tract but little additional tm-pitude from being declared unlawful by the inferior legislatiu-e. For that legislature in all these cases acts only, as was before observ^ed, in sub- ordination to the great Lawgiver, transcribing and pub- lishing his precepts. So that, upon the whole, the decla- ratory part of the mmiicipal law has veiy little force or operation with regard to actions that are naturally and in- trinsically right or wrong.] But, [^vith regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according SECT. II.] OF THE NATURE OF LAWS IN GENERAL. 37 [as tlie municipal legislator sees proper for promoting the welfare of tlie society, and more effectually carrying on the purposes of civil life. Thus our common law has de- clared, that the goods of the wife do instantly upon mar- riage become the property and right of the husband ; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foimda- tion in nature, but are merely created by the law, for the piu'poses of civil society. And sometimes, where the thing itself has its rise fi-om the law of natm^e, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall dnect. Thus, for instance, in civil duties, — obedience to superiors is the doctrine of revealed as well as natural religion : but who those supe- riors shall be, and in what circumstances, or to what de- grees they shall be obeyed, it is the province of hiunan laws to determine. And so, as to injuries or crimes, it must be left to 010* own legislature to decide in what cases the seizing another's cattle shall amount to a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. Thus much for the declaratory part of municipal law: and the directory stands much upon the same footing: for this virtually includes the former, the declaration being usually collected from the direction. The law that says, " thou shalt not steal," implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very essence of right and wi'ong depends upon the direction of the laws to do or to omit them. The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and im- perfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when ^vrongftilly withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, that 38 INTRODUCTION. [" the field or inheritance, which belonged to Titius's father, is vested by his death in Titius;" and the directory part has " forbidden any one to enter on another's property, ■without the leave of the owner:" if Gains after this Avill l^resume to take possession of the land, the remedial part of the law will then inteipose its office; will make Gains restore the possession to Titius, and also pay him damages for the invasion.] With regard to the sanction of laws [it is observ^ed, that human legislators have for the most part chosen to make it rather vindicatory ihmxremuneratory, or to consist rather in punishments, than in actual particidar rewards. Be- cause, in the fii'st place, the quiet enjoyment and protec- tion of all our civil rights and liberties, which are the siu'e and general consequence of obedience to the municipal laAv, are in themselves the best and most valuable of all rewards ; because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so pi-o- fuse a bounty; and farther, because the dread of evil is a much more forcible princij)^ of human actions than the ]3rospect of good (A). For which reasons, though a pru- dent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law ; but do constantly come armed with a penalty denounced against transgressors, either ex- pressly defining the nature and quantity of the punish- ment, or else lea\'ing it to the discretion of the judges, and those who are entrusted Avith the care of putting the laws in execution.] Laws attended with a Aandicatory sanction [are said to compel and oblige : not that by any natural \dolence they so constrain a man, as to render it impossible for him to act othenvise than as they direct, which is the strict sense of obligation ; but because, by declaring and exliibiting a {h) Locke on the Human Understanding, b. 2, c. 21. SECT. II.] OF THE NATURE OF LAWS IN GENERAL. 39 [penalty against offenders, tliey bring it to pass that no man can easily choose to transgress the law ; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for re- wards, in their nature, can orAy persuade and allure; nothing is compulsonj but pimishment.] It is, however, held by the soundest ethical writers, that there is also an obligation in point of conscience to observe the laws. It is related of Socrates that he made a promise Avith himself to observe the laws of his coimtry ; and this is nothing more than what every manfought both to promise and perfomi ; and he ought also to promise that he will exert aU his power to compel others to obey them {i). It has been sometimes questioned, indeed, whether this principle is not to be understood Avith some restriction. " It holds," it has been said, " as to rights — " and when the laAv has determined the field to belong to " Titius, it is matter of conscience no longer to witliliold " or invade it. So also in regard to natiu'al duties, and " such offences as are mala in se ; here we are boimd in " conscience, because we are bound by superior laws, " before those hrunan laws were in being, to perform the " one and abstain fi'om the other. But in relation to " those laAvs which enjoin only positive duties, and forbid " only such things as are not mala in se, but mala prohi- " bita merely, without any intermixture of moral gviilt, " annexing a penalty to non-compHance : here conscience " is no farther concerned than by directing a submission " to the jDenalty in case of our breach of those laws "(A]. The distinction hoAvever avUI perhaps hardly bear the test of a close inquiry. To form a true judgment on the sub- ject, it is necessary to take into consideration that the true principle both of moral and of positive laAA's is in (0 Note by Christian, to 1 Black- (k) I Bl. Com. 58. stone's Com. p. 59. 40 INTRODUCTION. effect tlic same, \\z. utility, or the general welfare, and that the disobedience of either sort of precept must be presumed to involve in it some kind of mischievous con- sequence. Supposing the existence of a law of the merely positive class, which happens to be considered by the public at large as useless or even detrimental to society, yet a conscientious man will feel himself boimd to observe it, if for no other reason, yet for this, that his taking the contrary coiu'se might encom-age others to violate laws of a more beneficial character, and lessen the general reve- rence for the institutions of his countrv. «» ( 41 ) SECTION III. OF THE LAWS OF ENGLAND. [The " municipal law of England," or the rule of civil condnct prescribed to tlie inhabitants of this kingdom, may mth sufficient propriety be di\aded into two kinds : the lex non scrip ta, the unwritten (or common) law; and the lex scripta, the written (or statute) law. The lex non scripta, or un^^a-itten law, includes not only general customs, or the common law properly so called ; but also the particular customs of certain parts of the king- dom ; and Tike^vise those particular laws that are, by custom, observed only in certain courts and jurisdictions. W hen these parts of our law are called leges non scriptce, it is not to be miderstood as if all those laws were at pre- sent merely oral, or commmiicated from the former ages to the present solely by word of mouth. It is true in- deed, that, in the profoimd ignorance of letters which formerly overspread the Avhole Avestern world, all laws were entirely traditional ; for this plain reason, because the nations among which they prevailed had but httle idea of writing. Thus the British as well as the Gallic di'uids committed all their laws as well as learning to memory (a); and it is said of the piimitive Saxons here, as well as their brethren on the continent, that leges sold memorid et usu retinebant (b). But with us, at present, the monuments and evidences of om- legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from («) CiES. du li. G. lib. G, c. 13. (i!*) Spelm. Gl. 3G2. 42 INTRODUCTION. [the times of liigliest antiquity. However, these parts of our law are therefore styled leges non scriptcs, because their original institution and authority are not set down in writing, as acts of parliament are ; but they receive their binding power, and the force of laws, by long and im- memorial usage, and by their vmiversal reception through- out the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that which is " tacito et illiterato hominum consensu et moribus expressum.^'' Oiu- antient la^^vy^ers, and particidarly Fortescue (c), insist with abimdance of warmth, that these customs are as old as the primitive Britons, and continued do-v^Ti, tlii'ough the several mutations of government and inha- bitants, to the present time, unchanged and imadidterated. This may be the case as to some ; but in general, as Mr. Selden in his notes observes, this assertion must be under- stood with many grains of alloAvance ; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless the Romans, the Picts, the Saxons, the Danes, and the Normans, must have insensibly introduced and incorjDorated many of their o^^^l customs with those that were before established; thereby, in all probability, im- proving the texture and wisdom of the whole by the accu- midated wisdom of divers particular countries. Our laws, saith Lord Bacon (rf), are mixed as our language ; and as our language is so much the richer, the laws are the more complete.] And indeed our early historians do positively assure us, that our body of laws is of this compounded nature. For they tell us, and their statement is adopted by Black- stone (e), that in the time of Alil'ed the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile a Dam-hoc or Libei' Judicialis, digesting them into one uniform code (c) C. 17. (e) 1 Bl. Com. 64. {d) See his proposals for a digest. SECT. III.] OF THE LAWS OF EXGLAND. 43 of laws for the general use of tlie whole kingdom : and this book is said by Blackstone to have been extant so late as the reign of king Edward the fourth, but to have been since lost ; and it is thought by that commentator to have contained the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings (/). It is farther the opinion of Blackstone that the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy ; so that about the beginning of the eleventh century, there were three principal systems of laws prevailing in different districts (a): 1. The Mercen-Laqe, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the antient Britons; and which Blackstone conceives there- fore to have been very probably intermixed wdth the British or Druidical customs. 2. The West-Saxon Lage, or laws of the West Saxons, which obtained in the coun- ties to the south and west of the island, from Kent to Devonshu-e, which he supposes to have been much the same with the laws of Alfred above mentioned ; being the municipal law of the far most considerable part of his dominions, and pai-ticularly including Berkshu-e, the seat of his pecidiar residence. 3. The Dane-Lage, or Danish law, which was principally maintained in the rest of the (/) In the opinion of Mr. Hal- "Alfred's Dooms," was printed by lam (Midd. Ages, vol. ii. p. 402, the Record Commissioners in 1840, 7th ed.) there is no sufficient proof but Sir F. Palgrave remarks (Rise, that Alfred " compiled a dom-hoc, &c. of the British Commonwealth, or general code for the government c. 11,) that it is insufficient to sup- of his kingdom." Turner (in his port the assertions of Blackstone as to Hist. Ang. Sax. vol. ii. p. 149, (!th Alfred's achievements as a law corn- ed.) considers the Dom-boc as the piler. same with the laws of Alfred, in {g) For this Blackstone cites Sir the Leges Anglo-Sax. published M. Hale, Hist. C, L. c. 3. by Wilkins. A document, called D 6 44 INTRODUCTION. midlantl counties, and also on the eastern coast, (the part most exposed to tlie visits of the Danes,) the very northern provmces bemg at that time under a distinct government. Out of these three svstems of laws, Blackstone states, upon the authority of Hoger Hoveden (h) and Ranulphus Cestrensis (^), that king Edward the Confessor extracted one uniform laAv, or digest of laws, to be observed through- out the whole kingdom ; though the Avork had also been projected and begun by his grandfather king Edgar. And he remarks in confirmation of this statement, that a general digest of the same nature has been constantly found expe- dient, and therefore put in practice by other great nations, which were fonned from an assemblage of little proATnces governed by peculiar customs ; as in Portugal, under king Edward, about the beginning of the fifteenth centmy {k) ; in Spain, under Alonzo the tenth, who, about the year 1250, executed the plan of his father St. Ferdmand, and collected all the proAancial customs into one uniform law, n the celebrated code entitled Las Partidas {I) ; and in Sweden, about the same rera, when a universal body of common law was compiled out of the particular customs established by the laghman of every proAdnce, and entitled the land's lagh, bemg analogous to the common law of England {in). However, in his opinion, these undertak- ings of king Edgar and Edward the Confessor were pro- bably no more than a new edition, or fi'esh promidgation of Alfred's code or Dom-boc, with such additions and im- provements as the experience of a century and a half had suggested ; for Alfr'ed, as he remarks, is generally styled by the same historians ^Ee" legum Anglicanarum conditor, as EcTward the Confessor is the restitutor. But w^hatever may be thought of these points of legal history or tradition, there can be no doubt that, under the first princes of the Normarfline, our ancestors were en- (/() In Hen. TI. (/) Mod. Un. Hist. xx. 211. {i) In Edw. Confessor. (m) Ibid, xxxiii. 21, 58. {k) Mod. Un. Hist. xxii. 135. SECT. III.] OF THE LAWS OP ENGLAXD. • 45 gaged in a frequent struggle to maintain certain institu- tioiis^ Icuowu hj tlie appellation of tlie " laws of Edward the Confessor," and which would seem to have been a body of laws or customs observed (though not first esta- bhshed) in the reign of that monarch (n); and it is certain that the Norman princes made frequent engagements to restore and maintain these laws as the most popidar act they could do, when pressed by^ foreign emergencies or domestic discontents. Nor is it unreasonable to beHeve that these, or some other remams of the law established in this country before the Conquest, gave rise (in part at least) to that collection of maxims and customs which is now kno^vn by the name of the common law(o); a name either given to it in contradistinction to other laws —as the statute law, the civil law, the law merchant, and the hke — or more probably, as a law common to all the realm. To assign however to the common law no other original than this, would be to take an imperfect and erroneous view of the subject. Our system of tenures was chiefly constiiicted, if not first founded, by the Norman con- queror (/>); our judicial forms and pleadings, while they have nothing in common with the Anglo-Saxon style, are in striking conformity vnth. the Norman (g); and it has been remarked vriih great truth, that the general language (n) The laws so called, contained Hallam's Midd. Ages, vol. ii. pp.466, in Lambard and Wilkins, are con- 468, 7th edit. Mr. Spence, also, in sidered as spurious. See Hallam's his History of the Equitable Jurisdic- Midd. Ages, vol. ii. p. 444, 7th edit. tion of the Court of Chancery, insists (o) That much of our common that the most important part of our law was in force in this island common law was a legacy from the before the Conquest is maintained Romans. both by Hale and Blackstone. And (jd) 2 Bl. Com. 48 ; Henry, Hist, the historian of the Middle Ages, of Eng. vol. vi. pp. 10, 18 ; Reeves's though inclined in general to ascribe Hist Eng. Law, vol. 1, p. 28, 3rd our common law to a date not much edit. ; Hallam, ubi sup. p. 408. antecedent to the publication of (q) Some information on this sub- Glanville (temp. Hen. 2), yet ad- ject may be found in the Notes to mits that "some features of it may Stephen on Pleading, 6th edit., 1S60. " be distinguishable in Saxon times." 46 INTRODUCTION. of oiu' jurisprudence and its terms of art are exclusively of Frencli extraction (r). We cannot hesitate therefore to recognise in the antient law of Normandy another parent of the common law, and one from Avliich it has inherited some of its most remarkable featm-es(s). But though these are the most likely foundation of this collection of maxims and customs, yet [the maxims and customs, so collected, are of higher antiquity than memory or history can reach (^): nothing being more difficult than to ascertain the precise beginning and first spi'ing of an antient and long established custom. Whence it is that, in our law, the goodness of a custom depends upon its haA^ng been vised time out of mind; or, in the solemnity of our legal phrase, **time whereof the memory of man runneth not to the contraiy,"] a phrase which refers, however (it is to be observed) in our law to a fixed era, and means that the custom must appear (for anything that can be proved to the contrary) to have been in use before the commencement of the reign of"!Richard the first (m). [This it is that gives it its weight and authority; and of this nature are the maxims and customs which compose the'common laAv, or lex non scripta, of this kingdom. This luiAvi'itten or common law is properly distinguish- (r) " Omnia vocahula, qua vocahtila lars where the conformity is to be artis dicuntur, quibusque hodie in for o traced, the merit of the first intro- Angli utuntur, Gallica sunt ; nihilque duction presumably belongs to Eng- cum Saxonica lingua habent affine." land, though he admits the reason- — Crag. Jus Feud. lib. i. s. 7. ableness of assigning it in others to (s) The similarity of the English Normandy. It does not however and Norman Laws is strongly illus- seem very material in which of the trated by a comparison of the Grand two countries they were first esta-. Coustumier of Normandy (compiled Wished. They have at all events no as late as Ric. I. and probably later), resemblance to the Anglo-Saxon in- with our Glanville, who wrote in the stitutions, and are evidently due to reign of Hen. II. This subject is lawyers of the Norman School, discussed by Hale in Hist. C. L. c. 6, {t) Hale, Hist. C. L. c. 3. who, jealous for the originality of (m) See the preamble to stat. 2 & the English law, argues from the pos- 3 W. 4, c. 71 ; Co. Lit. 115a; Jen- teriority in date of the Grand Cous- kins v. Harvey, 5 Tyrw. 32G. tumier, that, in most of the particu- SECT. III.] OF THE LAWS OF ENGLAND. 47 [able into three kinds : I. General customs ; wliicli are the universal rule of the whole kingdom, and form the "com- mon law," in its stricter and more usual signification. II. Particular customs; which affect only the inhabitants of particular distiicts. III. Certain particular laws; Avhich, by custom, are adopted and used by some par- ticular courts, of pretty general and extensive jurisdiction. I. As to general customs, or the common law, properly so called ; this is that law by which proceedings and de- terminations in the ordinary coiui;s of justice are princi- pallygm3e3 and directed ; this, for the most part, settles the course in which lauds descend by inheritance ; the manner and forai of acquiring and transfen-ing property ; the solemnities and obligations of contracts ; the rules of expoimding wills, deeds, and acts of parKament; the respective remedies of civil injuries ; and an infinite num- ber of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires (.r). Thus, for example, that there shall be four superior courts of record, the Chancery, the Queen's Bench, the Common Pleas, and the Exchequer ; — that the eldest son alone is heir to his ancestor ; — that a deed is of no validity unless sealed and delivered ; — that wiUs shall be constnied more favom-ably, and deeds more strictly ; — that money lent upon bond is recoverable by action of debt; — all these are doctrines that are not set doAvn in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support. Some have divided the common law into two principal grounds or fovmdations : 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest : and 2. Established rules and maxims ; as, " that the king can do no wTong," " that no man shall be bomid to accuse {x) Hale's Hist. C. L. c. 2. 48 INTRODUCTION. [himself," and tlie like. But these appear to be one and the same thmg. For the authority of these maxims rests entirely upon general reception and usage : and the only method of proving, that this or that maxim is a ride of the common law, is by showing that it hath been always the custom to observe it. But here a very natiu'al, and very material, question arises : how are these general customs or maxims to be known, andT 1by whom is their validity to be determined ? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws ; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from ex- perience and study ; from the " viginti annorum lucuhra- tiones," which Fortescue mentions (y) ; and fi'om being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a general custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are care- fully registered and preserved, luider the name of records, in public repositories set apart for that particular pur- pose (z) ; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give hght or assistance. And therefore, even so early as the Conquest, we find the " prcBteritorum memoria eventorum " reckoned up as one of the chief quahfications of those, who were held to be " legihus patrice optime instituti («),"] while at the same time it has been imiformly considered to be the duty of ((/) Cap. 8. are now in general placed under the (s) As to records, see Co. Lit. superintendence of the Master of the 260 a, and the note by Mr, Har- Rollsforthe time being, and a public greave. By stat. 1 & 2 Vict. c. 94, Record Office has been established, the public records of the kingdom («) Scld. Review of Tith. c. 8. SECT. III.] OF THE LAWS OF ENGLAND. 49 those who administer the law, to conform to the precedents thus estabhshed. For the scale of justice is not intended to [waver with every new judge's opinion, (which would be productive of intolerable inconvenience),] but when in any case the law has been solemnly declared and deter- mined, what before was uncertain, and perhaps indifferent, is now become a permanent mle, which it is not in the breast of any subsequent judge to alter or vary from, ac- cording to his private sentiments : he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land ; [not delegated to pronounce a new law, but to maintain and expound the old one.] Yet a single determination is not sufficient to establish an inflexible iide — more particu- larly where it is opposed to reason or natural justice. [But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or tmjust, it is declared, not that such a sentence was had law, but that it was 7iot law ; that is, that it is not the established custom of the realm, as has been erroneously determined.] And here we may observe that our la^^^ers have been always copious in their encomiums on the reason of the common law; their doctrine being [that the law is the perfection of reason, that it always intends to confonn thereto, and that what is not reason is not law.] In accordance with which, a pre- sumption always obtains in favour of an antient and esta- blished rule, the reason of which cannot at this distance of time be precisely assigned, that it is really foimded on just and solid views. And in fact [it hath been an antient observation in the laws of England, that whenever a stand- ing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared fi'om the inconveniences that have followed the innovation.] VOL. I. E 50 INTRODUCTIOX. It is to be observed, hoAvever, that many specific qiies- tions are perpetually occuiTing, in wliicli the rule of the Common law does not happen to be fixed by any known decision, and that these are disposed of by tlie judges in the manner that they think most conformable to the re- ceived rule in other analogous cases, or if there be no such analogy to guide them, then according to the natural rea'son of the thing ; though (in deference to the principle already referred to, that the opinion of the judge is not to make the law, but only to asceitain it), their determination always pm-ports to be declaratory of what the law is, and not of what it ovght to be. It is obvious that, omng to the infinite variety of combinations in himian affairs, ques- tions of this novel description must frequently arise under ever)'^ system of jimspnidence, T\dth whatever prospective sagacity it may attempt to guard against them, — as in cases which turn on the exposition of the meaning of particular clauses in deeds or ^ills ; and it is remarked by Sii- Matthew Hale {b) that they are much better dealt with by a judge, than they covild be by a merely learned or wise man not belonging to the profession of the law, who might be incompetent to understand even the technical terms employed in the instnmient to be ex- poimded, and at all events would be tmable to reason firom analogy to other decided cases. To which it may be added, that even in such of those questions as depend on reason only, the habit of solving them has an obvious tendency to improve the faculty, and to give the judge a great advantage over any person possessed of the same natural abilities, but not accustomed to exercise them in the same manner. The decisions of courts, being the best evidence of what the common law is, are [held in the highest regard, and are not only preserved as authentic records in the treasuries of the several coui'is, but are handed out to public ^dew in the nimierous volumes of Reports which furnish the {b) Hist. C. L. c. 4. SECT. III.] OF THE LAWS OF EXGLAND. 51 [lawj-er's libraiy. These repoi-ts are histories of the several cases, with a short summary of the proceedings, which are jDreserved at large in the record ; the argmnents on both sides and the reasons the court gave for its judgment; taken dowTi in short notes by persons present at the deter- mination. And these serve as indexes to, and also to explain, the records ; which always, in matters of conse- quence and nicety, the judges dii-ect to be searched. The Reports are extant in a regular series from the reign of King Edward the second to that of Henry the eighth inclusive ; and were taken by the prothonotaries, or chief scribes of the coui-t, at the expense of the crown, and pub- lished annually ; whence they are known under the deno- mination of the Year Boohs.^ In the reign of the latter monarch, however, this series closed; and though after- wards king James the first, at the instance of Lord Bacon, appointed two reporters with a handsome stipend to perfomi the same duty(c), that institution was soon neglected (c?); and from the reign of Heniy the eighth to the present time the faik of comnumicating to the pubHc the decisions of the courts has been executed by private hands. [Some of the most valuable of the antient reports] which Avere thus executed [are those pubhshed by Lord Chief Justice Coke (e) ; a man of infinite learning in his profession, though not a Httle infected "udtli the pedantiy and quaint- ness of the times he lived in, which appear strongly in aU his works. However, his writings are so higlily esteemed, that they are generally cited -without the author's name (/).] (c) See Lord Bacon's proposition came to a resolution to grant licences for amending the laws of England. no longer. (d) 1 Bla. Com. p. 72. In James (e) The first eleven parts only the second's time an order was were published in his life time, at issued to the Stationers' Company various periods between 1600 and to the effect that all books concern- 1615; the twelfth and thirteenth ing the common laws of the realm being posthumous. were to be licensed by the Lord (/) His reports, for instance, are Chancellor or the judges or one of styled, xar' l^o^nv " the Reports," them. See 1 Ld. Raym. 537 ; Burr, and, in quoting them, we usually say, pref. But the judges afterwards 1 or 2 Rep. not 1 or 2 Coke's Rep. as e2 52 INTRODUCTION. He had been preceded as a reporter Ly Dyer and Plowden, both laAvyers of the highest eminence : of his successors, (too niuTierous, especially in our o^ti days, for distinct notice,) we vrHl only mention the more antient and distin- guished names of Hobart, Croke, Yelverton, Saunders (g), Vaughan and Le'^onz. [Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law.] Such are Glan^dlle and Bracton, who in the reigns of Henry the second and Henry the third respectively wrote treatises on the Laws of England ; the author of Fleta(/i), who composed aAvork on the same subject in the time of Edward the fii'st ; the author of the Mirror, a work generally ascribed to the reign of Edward the second (z) ; Fortescue, who WTote De Laudibus Legum in citing other authors. The reports the title of the work derived from its of Judge Croke are also cited in a peculiar manner, by the names of those princes, in whose reigns the cases reported in his three volumes were determined ; Dix. Queen Eliza- beth, King James and King Charles the first ; as well as by the number of each volume. For sometimes we call them 1, 2 and 3 Cro., but more commonly Cro. Eliz., Cro. Jac. and Cro. Car. (g) The reports of Saunders were edited in 1799 by Mr. Serjeant Wil- liams, a profound lawyer, who ap- pended to them notes (or rather legal dissertations) of a very instructive character. His edition was after- wards republished by Sir John Pat- teson and Mr. Justice Williams (then both at the bar) as joint edi- tors, and still more recently by Mr. Justice Williams alone (before his elevation to the bench); and these editors have added excelLnt anno- tations of their own to the former stock. (h) The author is unknown; and being written during his confine- ment in the Fleet prison. Reeves's Hist. Eng. Law, vol.ii. p. 280. The work of Reeves just referred to (a production of our own times) is it- self of high character, but less read perhaps than it deserves. Though its method is somewhat dry, its re- search and accuracy are exemplary ; and a continuation of it to the pre- sent day (if executed with equal ability) would be of great service to every student of law or constitu- tional history. (i) The authorship and even the date of this treatise, " The Mirror of Justices," is uncertain. Some have pronounced it older than the Con- quest, but it bears internal evidence of at least having been adapted to the time of Edward the second. See Reeves's Hist. Eng. Law, vol. ii. p. 358. It is stated by Turner (Hist. Ang. Sax, b. i. c. 3) to have been written by Andrew Home, temp. Edw. 2. SECT. III.] OF THE LAWS OF EXGLAND. 53 Anglije In the reign of Henry tlie sLxth ; St. German, who composed the treatise on the grounds of the laws of Eng- land called the Doctor and Student, in the reign of Henry the eighth ; Staundforde, whose work on the criminal law was pubhshed about the time of Philip and Mary, and who was followed in that track by Hale and HaAvkins early in the last centuiy ; the author of Sheppard's Touchstone (k), who -svrote on conveyances in the reign of James the first ; Fitzherbert, Brooke and Rolle, who published abridgments or digests of the different titles of the law in the reigns of Henr}^ the eighth, Elizabeth, and Charles the second respectively, and whom Viner, Comyns and Bacon have since succeeded (/) ; and Gilbert, among whose valuable works (the productions of the last centmy), we shall only mention the treatises on tenm-es and on uses and trusts (m). These and many other methodical writers are of high and intrinsic authority in the courts of justice; but none of the class shines so conspicuously as the learned judge before mentioned, Sif"1Edward Coke, who in the year 1628 (w) [published fom* volumes of Institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first voliune is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common laAv learning, coEected and heaped to- gether fi'om the antieut reports and year books, but greatly defective in method (o). The second volimie is a comment {k) The work has been attributed and useful character. As to his trea- to Doderidge, a judge of great tise on tenures, see Butler's Pref. eminence. See Pref. to Hilliard's to Co. Litt. edition. (n) Butler's Preface to Co. Litt., (l) See Mr. Hargrave's eulogiuni where the reader will find some on Viner's Abridgment, and Comyns' valuable observations on the cele- Digest, Co. Litt. 9 a, n. (3), 17 a, brated commentary on Littleton, of n. (1). which the First Institute consists, (m) Chief Baron Gilbert's trea- and also on the original work of tises were all published after the Littleton, author's death, and in an unfinished (o) It is usually cited either by the state i but they are of a most learned name of Co. Litt. or as 1 Inst. 54 IXTRODUCTIOX. [upon many old acts of parliament, without any systematical order ; the third a more methodical treatise of the pleas of the crowTi ; and the fourth an account of the several species of courts (p). And thus much for the first ground and chief comer stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the com-ts of justice ; which decisions are pre- served among our public records, explained in om- reports, and digested for general use in the authoritative writings of the venerable sages of the law. The Roman law, as practised in the times of its liberty, paid also a great regard to custom ; but not so much as om- law ; it only then adopting it, when the written law was deficient, though the reasons alleged in the Digest (q) will fully justify our practice, in making it of equal autho- rity with, when it is not contradicted by, the WTitten law ; " for since (says Julianus) the Avritten law binds us for no " other reason but because it is approved by the jvidgment " of the people, therefore those laws which the people have " approved without writing ought also to bind every body. " For where is the difference, whether the people declare *' their assent to a law by suffrage, or by a imiform course " of acting accordingly ?"] With us, indeed, it would seem that the statute law and the common law both flowed oiiginally fi-om the same foimtam (r). A great portion at least of the latter must be refeiTcd to some positive enactment of the supreme power in the coimtry, though not now to be foimd of record. II. [The second branch of the unAvritten laws of Eng- (p) These are cited as 2, 3 or 4 Ventris, 4 Leonard, 1 Sideifin, and Inst, without any author's name ; an the like, honorary distinction, which, as we (q) Ff. 1,3, 32. before observed, is paid to the works (;■) Per Wihnot, C. J., Collins v. of no other writer ; the generality of Blantern, 2 Wils. 351 ; Hale's Hist, reports and other tracts being quoted C. T.. c. 4. in the name of the compiler, as 2 SECT. III.] OF THE LAWS OF ENGLAND. 55 [land are particular customs, or laws, which affect only the inliaHtants of particular districts (s) :] and these it is usual to designate by the word customs taken per se ; which suf- ficiently distinguishes them from the general customs of which we spoke before. These particidar customs, or some of them, are probably the remains of a multitude of local customs, prevailing, some in one part and some in another, over the whole of England, while it was broken into distinct dominions, and out of which, after it became a single kingdom, one com- mon law was collected and made applicable to the realm at large ; each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of the same uniform and universal system of laws ; but, for reasons now long forgotten, particidar coimties, cities, to^ms, manors, and lordships, were in- dulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large, Avhich piivilege is confirmed to them by several acts of parliament {t). [ Such is the custom of gavelkind in Kent, and some other parts of the kingdom (m), (though perhaps it was also general until the Norman conquest,) which ordains, among other things, that not the eldest son only of the father succeeds to his inheritance, but all the sons alike : and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estates, without any escheat to the lord. — Such is the custom that prevails in divers antient boroughs, and therefore called borough-Englisk, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs that a mdow shall be entitled, for her dower, to all her husband's lands ; whereas, at the common law, she shall be endowed of one third part only. Such also are (s) Co. Litt. 110b; vide sup. p. 47. c. 1 ; 2 Hen. 4, c. 1. (0 Mag. Cart. 9 Hen. 3, c. 9 ; 1 («) Co. Litt. 140 a. Edw. 3, St. 2, c. 9 ; 14 Edw. 3, st. 1, 56 INTRODUCTION. [tlie special and particiJar customs of manors, of which every one has more or less, and which bind all the copy- hold and customary tenants that hold of the said manors. Such, lastly, are many particular customs ^\dthin the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contraiy to the general law of the land, and are good on\j by special usage ; though the customs of London are also confirmed by act of parhament(ar).] To this head has sometimes been referred (y) that branch of the law which comprises certain rules relative to bills of exchange, partnership, and other mercantile matters, and Avhich is generally denominated the custom of merchants. As its character, however, is not local, nor its obligation confined to a particular district, it cannot with propriety be considered as a custom in the technical sense to which Ave now refer (^z). It is, in truth, only a part of the general law of England (a) ; and it is distinguished by a separate name, only because it applies, to the particidar subjects in question, principles different fi-om those which the common law ordinarily recognizes, and because these principles were engrafted into oiu" mimicipal system by gradual adoption from the lex mercatoria{h), or general body of European usages in matters relative to commerce. Upon the same principle we must exclude fi'om the technical idea of a custom the mere usages of par'ticular trades, when not restrained to some particular limit in point of place, as opposed to the realm at large. If there be any such usage of immemorial observance, and authen- (r) See the City of London's case, Burr. 1226 ; 1 Bl. Rep. 299, S. C. ; 8 Rep. 126; The King j;. Bagshaw, 2 Inst. 58; Stone v. Rawlinson, Cro. Car. 347 ; see also Pulling on Willes, 561. See also Benson i^. the Laws and Customs of London, Chapman, 8 C. B. (N. S.) 967, in p. 2. notis. ill) 1 Bl" Com. 75. [h) The lex mercatoria, or lawmer- (z) Co. Litt. 115 b. chant, is mentioned in some of our (a) Per Holt, C. J., Ilussey v. earlier statutes. (See 27 Edw. 3, Jacob, Ld. Raym. 88 : per Forster, st. 2, c. 8, 19, 20.) J., Edie V. East India Company, 2 SECT. III.] OF THE LAWS OF ENGLAKD. 57 ticatecl by judicial decision, it vn\\ fonii, according to onr definitions, part of the general law of England ; if there be any sanctioned by act of parliament, it will constitute part of the statute law ; but for the rest, the want of any pecu- liar locality determines them to be no customs, and they are consequently no rules of law at all. Yet as matters of fact they often fall imder the notice of oiu* courts of justice, and are very necessary to be considered ; for as the pre- valence of any certain course of deahng among men leads to the presimiption that in particular instances they intend to confoi-m to it, the existence of such usages as these may often bear materially or even conclusively upon the ques- tion, whether an implied contract to a given efiect was entered into between certain parties, and also upon the question in Avhat sense their express contract in certain cases was designed to be understood. The rules relating to particular customs regard either the proof of their existence, or their allowance as good and legal, when proved. And first we vdll consider the rides of proof . As to the modes of descent in gavelkind, and borough- English, the law takes particular notice of them (c) ; and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other customs must be particularly pleaded (c?) ; and as well the existence of such customs must be shown, as that the thing in dispute is wdthin the custom alleged. [The trial in both cases (both to show the existence of the custom, as, " that in the manor of Dale lands shall de- scend only to the heirs male, and never to the heirs fe- male ; " and also to show " that the lands in question are A\ithin that manor,") is by a jury of twelve men, and not by the judges; except the same particidar custom has been before tried, determined, and recorded in the same court (e). (c) Co. Litt. 175 ; 36 Hen. 6, 20 ; (J) Litt. s. 265. 21 ; see stat. 17 Edw. 2, st. l,c. 16. (e) Dr. and St. 1, 10. 58 INTRODUCTION. [The customs of London differ from all others in point of trial ; for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by a certificate from the lord mayor and aldermen by the mouth of their recorder (/) ; unless it be such a custom as the cor- poration is itself interested in — as a right of taking toll — for then the law permits them not to certify on their own behalf (^). When a custom is actually proved to exist, the next in- quiry is into the legality of it ; for, if it is not a good cus- tom it ought to be no longer used ; " Mains usus aholendus esV is an established maxim of the law (/i)*] As to the validity of a custom, the following rules are established: 1. [It must have been used so long, that the memory of man runneth not to the contrary.~\ Upon this subject, however, it is material to recollect what has been before laid doA\Ti, that the time of memory as regards the validity of a custom, or (as it is sometimes expressed) the time of legal memory, has received a peculiar technical limitation, and refers to so remote a date as the commence- ment of the reign of king Richard the first (i). So that if an usage can be s1io"v\ti to have first commenced at any time since that era, it is void as a custom ; though in the absence of such proof its observance for a long time, and as far back as the evidence reaches, \Adll amount to pre- sumptive proof of its having prevailed during the whole period of legal memory (A). It is important also to re- mark on the other hand, that this principle, by which a custom is required to be immemorial, is materially quaH- fied in many cases by a modern statute, 2 & 3 Will. IV. C. 71 ; which, as to customary and prescriptive claims of rights to be exercised over the land of other persons, (/) See Applelon v. Sloughton, {g) Day v. Savadge, Hob. 85. Cro. Car. 516; see Plummer v. (/;) Litt. § 212 ; 4 Inst. 274. Bentham, 1 Burr. 248 ; Blacquiere {i) Co. Litt. 115 a; et vide sup. V. Hawkins, Dougl. 378 ; Crosby v. p. 46. Hetberington, 4 Man. & Gr. 933; (/t) Rex d Jolliffe, 2 Barn. & Cres. Westoby v. Day, 2 Ell. & Bl. 605. 54. SECT. III.] OF THE LAWS OF ENGLAND. 59 (such as the rights of common, or way, or the like,) pro- vides that they shall be considered as sufficiently esta- bhshe^ by an unintemipted enjoyment as of right, in some cases for thirty, in others for twenty years ; and shall not be defeated (where such enjoyment can be proved) by showing that they commenced within the time of legal memory (/). 2. [It must have been continued. Any interruption would cavise a temporary ceasing : the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be miderstood with regard to an interruption of the right ; for an interruption of the possession only for ten or twenty years, will not destroy the custom (m). As if the inha- bitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed though they do not use it for ten years; it only becomes more difficidt to prove : but if the right be any how dis- continued for a day, the custom is quite at an end. 3. It must have been peaceable, and acquiesced in ; not subject to contention and dispute (n).] For customs seem to derive their authority from their allowance at some remote period, by common consent (o) : and Avhere the practice or usage has been immemorially disputed, the evidence of this consent is wanting. 4. [Customs must be reasonable (p); or rather, taken negatively, they must not be imreasonable. AVliich is not always, as Sir Ed^vard Coke says(§'), to be imder- stood of every imleamed man's reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the parti- cular reason of it cannot be assigned ; for it sufficeth if no good legal reason can be assigned against it. Thus a (I) See farther, post, bk. ii. pt. i. (p) See Year Book, 8 Edw, 4, 19 ; c. XXIII. as to the subject of prescrip- Litt. s. 212 ; Wilkes v. Broadbent, I tion. Wils. 63 ; Bell v. Wardell, Willes, (ot) Co. Litt. 114. 202; Jones i-. Waters, .'> Tyr. 301. (w) Ibid. (q) Co. Litt. G2. (o) Vide sup. p. 54. 60 IXTRODUCTIOX. [custom in a parlsli, that no man shall put his beasts Into the common till the third of October, would be good ; and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first ^ut In His^is unreasonable, and therefore bad : for peradventm-e the lord will never put in his, and then the tenants A^-ill lose all their profits (r). 5. Customs ought to be certain (s). A custom, that lands shall descend to the most Avoi-thy of the owner's blood, is void ; for how shall this Avorth be determined ? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good(^). A custom to pay two-pence an acre in lieu of tithes, is good ; but to pay sometimes two-pence, and sometimes three- pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good ; though the value is a thing imcertain : for the value may at any time be ascertained ; and the maxim of law is, id certum est, quod certum reddi potest. 6. Customs, though established by consent, must be (when established) compulsory ; and not left to the option of every man, whether he will use them or no. There- fore a custom, that all the inhabitants shall be rated to- ward the mamtenance of a bridge, A\-ill be good ; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absiu'd, and indeed no custom at all. 7. Customs must be also consistent with each other : one custom cannot be set up in opposition to another (m). For if both are really customs, then both are of equal antiquity, and both established by mutual consent ; Avhich to say of contradictory customs, is absiu'd.] Therefore (r) Co. Copyh. § 33. («) See Aldred's case, 9 Rep. 58b ; (s) I Roll. Abr. 565 ; Selby v. Kenchin v. Knight, 1 Wils. 253 ; 1 Robinson, 2 T. R. 758; Steel v. Bl. Rep. 49, S. C. ; Parkin v. Rad- Houghton, 1 Hen. Bl. 51. cHffe, 1 Bos. & Pul. 282. (0 1 Roll. Abr. 565. SECT. III.] OF THE LAWS OF ENGLAND. 61 if a man should allege that as a fisherman he is entitled, by the custom of a certain place, to diy his nets upon another's land (which in favour of fishing- and navigation is a reasonable usage (x),) the latter coiild not allege in opposition to this a right by custom to remove the nets when so placed ; for these two contradictoiy customs can- not both be good, nor both stand together. He ought rather to deny the existence of the former custom. 8. It is also a rule [that customs, in derogation of the common law, must be construed strictly (y). Thus, by the custom of gavelkind, an infant of fifteen years may, by one species of conveyance, (called a deed of feoflBnent,) convey away liis lands in fee simple, that is, for ever. Yet this custom does not empoAver him to use any other con- veyance, for the custom must be strictly pursued.] How- ever, if there is a custom in a manor that a man may convey his copyhold in fee simple, it will also enable him to convey for life, or any other estate ; for the less is im- j)lied m the greater ; and though customs must be strictly, yet they need not in eveiy case be Hterally constmed (z). 9. Lastly, it is to be imderstood that no custom can prevail against an express act of parliament (a). There- foreTwhere an act has directed that every poimd through- out the kingdom shall contain sixteen oiuices, a custom that every pound of butter sold in a certain market shall weigh eighteen ounces is void (&). And thus much for the second part of the leges non scriptcB, or those particular customs which afiect particular persons or districts only. III. [The third branch of the imwritten or common laws are those wliicH by custom are adopted and used only (a-) 1 Roll. Abr. 560 ; Hickman t;. Blackstone, 1 vol. p. 79; and see Thorne, 2 Mod. lOi. Denn v. Spray, 1 T. R. 4G6. (j/) Arthur v. Bokenham, 1 1 Mod. (a) Co. Litt. 113 a; Noble v. Du- 161 ; Denn v. Spray, 1 T. R. 466. rell, 3 T. R. 271. (z) Co.Cop.§33. This limitation (6) Noble «;. Durell, 3 T. R. 271. of the rule is noticed in Coleridge's 62 INTRODUCTION. [in certampeculiar^coiu^s and jurisdictions (c).] And by these we are to understand the c ivil and ca non laws(c?). [It may seem a httle improper at first view to rank these laws imder the head of leges non scriptce, or unA\Titten laws, seeing they are set forth by authority] in pandects, codes, and institutions ; in coimcils, decrees, and decretals ; and are enforced by an immense number of expositions, deci- sions, and treatises of the learned in both branches of the law. [But this is done after the example of Sir INIatthew Hale (e) ; because it is most plain, that it is not on account of their being written laws that either the canon law, or the ci^dl law, hare any obligation within this kingdom : neither do then- force and efficacy depend upon their o-^vn intiinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declared to be authentic by Gregoiy. These considerations give them no authority here ; for the legislature of England doth not, nor ever did, recognize any foreign power as superior or equal to it in this kingdom, or as having the right to gi-^e law to any, the meanest, of its subjects.] But all the strengih that either the papal or imperial laAvs have ob- tained in tliis realm £is only because they havebeen^ad- mitted and received by immemorial usage and custom in some particular cases, and some particidar courts ; and then'TEeyToim a branch of the leges non scriptce, or cus- tomary laws : or else because they are in some other cases introduced by consent of parliament ; and then they owe their vahdity to the leges scriptcB, or statute law. Tliis is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21, addressed to the king's royal majesty : " This your grace's realm, recognizing no superior imder " God but only yom- grace, hath been and is fi'ee from " subjection to any man's laws, but only to such as have (e) Vide sup. p. 47. (e) Hist. C. L., c. 2. (rf) Hist. C. L., c. 2. SECT. III.] OP THE LAWS OF ENGLAND. 63 [" been devised, made, and ordained within this realm, for " the wealth of the same ; or to such other as, by siiifer- " ance of yom- grace and yom- progenitors, the people of " this yom- realm have taken at their free liberty, by their " own consent, to be used among them ; and have bomid " themselves by long use and custom to the observance of " the same ; not as to the observance of the laws of any " foreign prince, potentate, or prelate ; but as to the cus- " tomed and antient laws of this realm, originally esta- " blished as laws of the same, by the said sufferance, con- " sents, and custom ; and none otherwise." By the civil law, absolutely taken, is generally under- stood the civil or mimicipal law of the Roman empire, as comprised in the Institutes, the Code, and the Digests of the Emperor Justinian, and the Novel Constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illus- trating our own laws, it may not be amiss to give a short and general account (/). The Roman law — founded fri'st upon the regal constitu- tions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the prgetor, and the re- sponsa prudentum, or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of suc- cessive emperors, — had grown to so great a bulk, or, as Livy expresses it {g), " tarn immensus aliarum super alias acervatarum legiim cumulus^'' that they were computed to be many camels' load, by an author who preceded Jus- tinian (A). This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Pa- (/) A more ample dissertation on shoeck, Heineccius, and Pothier. this subject will be found in Kent's See also Histoire du Droit Remain Com. (Lect. xxiii.), who refers the au Moyen-Age, par M. de Savigny. student in civil law to Vinnius on {g) L, 3, c. 34. the Institutes, Voet. on the Pan- (/i) See Taylor's Elements of Civil dects, Perezius on the Code, and Law, 17. generally to the works of Bynker- 64 INTRODUCTION. [plrius; and then by tlie Emperor Theodosius the younger, by whose orders a code was compiled a. d. 438, being a methodical collection of all the imperial constitutions then in force; Avhich Theodosian code Avas the only book of civil law received as authentic in the western part of Eu- rope till many centuries after (i); and to this it is probable that the Franks and Goths might frequently pa}^ some re- gard, in framing legal constitutions for their newly erected kingdoms : for Justinian commanded only in the eastern remains of the empire ; and it was imder his aiispices that the present body of civil" law" was compiled and finished by Tribonian and other lawyers, about the year 533. This consists of, 1. The Institutes, which contain the elements or first principles of the Roman law, in four books. 2. The Digests, or Pandects, in fifty books; con- taining the opinions and writings of eminent lawyers, di- gested in a systematical method. 3. A New Code, or collection of imperial constitutions, in twelve books ; the lapse of a whole century having rendered the former code of Theodosius imperfect. 4. The Novels, or new consti- tutions, posterior in time to the other books, and amount- ing to a supplement to the code ; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Homan law, or corpus juris civilis, as published about the time of Justinian ; wliich, however, fell soon into neglect and oblivion, tUl] the early part of the twelfth centiuy (It), when the policy of the Roman ecclesiastics began to give new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous com- (?) This is at least true of the Hallam's Mid. Ag. vol. iii. p. 513; western part of Europe generally, as and " Histoire du Droit Remain au the code of Justinian was not recog- Moyen-Age, par M. de Savigny," nized there generally till the twelfth eh. xxii. ss. 164, 167. century. But that code seems to (A-) Blackstone says till about the have been recognized by the Roman year 1130, viz. the date of the cap- Church, at least, mucli earlier. See ture of Amalfi : vide sup. p. 11. SECT. III.] OF THE LAWS OF ENGLAND. 65 ments, with which this system of law, more than any other, is now loaded. [The canon law(Z) is a hodj of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction ovir. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see; all which lay in the same dis- order and confusion as the Roman ciyil law, till, about the year 1151, one Gratian, an Italian monk, in imitation of Justinian's Pandects, reduced the ecclesiastical constitu- tions also into some method, in three books, which he en- titled Concordia Discordantium Canonum, but Avliich are generally known by the name of Decretum Gratiani (m). These reached as low as the time of Pope Alexander the third. The subsequent papal decrees, to the pontificate of Gregory the ninth, were published in much the same method, under the auspices of that pope, about the year 1230, in five books, entitled Decretalia Gregorii Noni. A sixth book was added by Boniface the eighth about the year 1298, which is called Sextiis Decretalium. The Cle- mentine constitutions, or decrees of Clement the fifth, were in like manner authenticated in 1317 by his succes- sor 3oEn the twenty-second, who also published twenty constitutions of his own, called the Extravag antes Joannis ; all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes, in five books, called Extravagantes Com- munesl laid all these together, Gratian's Decree, Gregory's Decretals, the Sixth Decretal, the Clementine Constitu- (0 A disquisition on this subject, Preface to his " Ecclesiastical Law," including our national canon law, p. xx., that the "decrees" of the will be found in Reeves's Hist. Eng. canon law, having first been col- Law, 4th vol. chapters xxiv., xxv. ; lected by Ivo in the year 1114, were and see Robertson's Chas. V. vol. i. afterwards "polished and perfected n. 24. by Gratian, a monk of Bononia, in (m) It is said by Dr. Burn, in the the year 1149." VOL. I. F 66 INTRODUCTIOX. [tions, and the Extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law. Besides tliese pontifical collections, which, during the times of popery, were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national canon law, composed of legatine andj)ro- vincial constitutions, anJ adapted only to the exigencies of this chm'ch and kingdom (n). The legatine constitu- tions (o) were ecclesiastical laws, enacted in national synods, held under the Cardinals Otho and Othobon, legates fi-om Pope Gregory the ninth and Pope Clement the fom-th, in the reign of king Henry the thii'd, about the years 1220'and 1268. The provincial constitutions (p) are~principally the decrees o? pro\dncial sjTiods, held under divers arcTibislTops of Canterbury, from Stephen Langton, in the reign of Henry the third, to Henry ChicKeTe, in the reign of Henry the fifth; and adopted also T)y the pro\4nce of York(^) in the reign of Henry the sixth. At the divivn of the Reformation, in the reign of king Heniy the eighth, it was enacted iii parliament (r), that a review should be had of the canon law ; and, till such re\dew should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, shoidd still be used and executed.] An3, as nonsuch i^evTewTias yet Teen 'perfected (s), upon (n) See Reeves's Hist. Eng. Law, (r) Stat. 25 Hen. 8, c. 19, (revived vol. ii, p. 78. and confirmed by 1 Eiiz. c. 1) ; 27 (o) On these constitutions Athon Hen. 8, c. 15 ; 35 Hen. 8, c. 16 ; and is the chief commentator. SeePref. 3 & 4 Edw. 6, c. 11; (see Middle- to Burn's Ecclesiastical Law, p.xxii. ton v. Croft, Stra. lOGO ; 2 Atk. 659, (p) On this subject Lyndwode's 669). The three last statutes how- Provinciale is the chief work of ever were temporary ones, authority: see the account of it in (*) Vide Watson's CI. Law, ch. iii. Reeves's Hist. Eng. La'v, 4th vol. p. 17, 3rd ed. ; Burnet's Hist. Rc- p. 117. form. vol. ii. p. 197 ; Adam's Relig. (q) Burn's Eccl. Law, pref. ubi World, vol. i. p. 411. sup. SECT. III.] OF THE LAWS OF ENGLAND. 67 tliis enactment now depends the autliority of the canon law in England, the limitations of which appear upon the wKole to be as follows, that no canon contrary to the com- mon or statute law, or the prerogative royal, is of any validity ; that, subject to this condition, the canons made anterior to the parliamentary proAasion above mentioned, and adopted into onr system (for there are some which have had no reception among us), are binding both on clergy and laity ; but that canons made since that period, as they have had no sanction from the parliament, are, as regards the laity at least, of no force (0- As for those canons in particular which were enacted by the clergy in convocation under James the first, in the year 1603, and which were never confirmed in parliament, but sanctioned by the king's charter only («), [it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new re- gulations, they do not bind the laity, whatever regard the clergy maylje boimd to pay them(w).] There are three species of courts in which the civil and canon Tawsare pernntted, under different restrictions, to be use3: 1. [The courts of the archbishops and bishops, and their derivative officers, usually called, in our law, coiu'ts Christian, curicB Christianitatis, or the ecclesiastical {t) See 25 Hen. 8, c. 19, ss. 2,7; cation, &c., and agreed upon with Caudrey's case, 5 Rep. xxxii. ; 12 the King's Majesty's licence, in their Rep. 72; Co. Litt. 344a; Pref. to Synod begun at London, a.d. 1(503, Burn's Ecc. Law; Wolferstan v. in the first year of King James." Bishop of Lincoln, 2 Wils. 174; They constitute the present standard Middleton v. Croft, Stra. 10-50 ; 2 of the Church both of England and Atk. 669; Alston v. Atlay, 7 Ad. Ireland. & El. 289. {v) Middleton v. Croft, ubi sup., («) Middleton v. Croft, ubi sup. More v. More, 2 Atk. 158 ; Bishop These are 141 in number, and are of St. David's v. Lucy, Carth. 485 ; a collection out of the several pre- Rex v. Bishop of Lichfield, 2 W. ceding canons. They are intituled Bla. 968 ; see also the recent case "Constitutions and Canons Eccle- of Marshall w. The Bishop of Exeter, siastical treated upon by the Bishop 7 C. B. (N. S.) 653. of London, President of the Convo- F 2 68 INTRODUCTION. [com-ts.] 2. [The courts of admiralty.] 3. The Chan- cellor's Court of the" UnTversitj of Cambridge {wj. [In all, ^eir reception in general, and the different degrees of their reception, are gi'ounded entu'ely upon custom, corroborated in the last instance by act of parliament, ratifjang those charters which confirm the customary law of the university. The more minute consideration of these will fall properly under that part of these Commentaries which treats of the jurisdiction of courts (x). It will suffice at present to remark a few particulars relative to them all, Avhich may serve to incvdcate more strongly the doctrine laid down concerning them. 1. And first, the com-ts of common law have the sujger- intendency'over these coiu'ts ; to keep them within their jurisdictions, to detennine wherein they exceed them, to restrain and prohibit such excess ; and, in case of con- tumacy, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal (y). 2. The common law has reserved to itselfj a paramount authority [in the exposition of aU such acts of parliament as concern either the extent of these courts or the matters depending before them. And therefore, if these coiu'ts either refiise to allow these acts of parliament, or will ex- pound them in any other sense than what the common law puts upon them, the sviperior coiuts at Westminster wiU grant prohibitions to restrain and control them {z).'] (w) Cambridge University Com- of courts, viz., the courts military. mission Report, p. 5. As to this But these are now disused (vide court see post, vol. iii.p. 469. Black- post, vol. iii. p. 459), stone enumerates among the courts {x) As to courts ecclesiastical and where the civil and canon laws are maritime, vide post, vol. m. p. 436 permitted to be used, the courts of et seq. As to the university courts, the two universities (meaning Cam- ib. p. 469. bridge and Oxford); but £3 to the {y) 2 Inst. 623; see Beaurain v. court of the Vice-chancellor of Ox- Scott, 3 Camp. 388 ; Ex parte Jen- ford, see 25 & 26 Vict. c. 26, s. 12. kins, 1 Barn. & Cress. 655. Blackstone also adds a fourth species (z) Hall v. Maule, 7 Ad. & El. 721. SECT. III.] OF THE LAWS OF ENGLAND. 69 3. [An appeal lies from all these covu-ts to the sovereign^, i n the last resort (a) ; Avhich proves that the jurisdiction exercised in them is derived fi-om the crown of England, and not fi-om any foreign potentate, or intrinsic authoiitj of their own. From these three strong marks and ensigns of superi- ority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege ; and that, thus admitted, restrained, altered, new-modelled and amended, they are by no means with us a distinct independent species of laws, but ai-e inferior branches of the customary or un^vritten laws of England ;] their proper appellation being the ecclesiastical, the maritime and the academical laws of this realm (&). [Let us next proceed to the leges scriptce, the written laws of the Tcingdom (c) ; which are statutes, acts, or edicts,- made by the sovereign, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled {d). The oldest of these now extant, and printed in our statute books, is the famous Magna Charta, as confimied in parliament in the ninth year of Henry the third (e) ; though doubtless there were many Acts before that time, the records of Avhich are now lost, and the detei-minations of them perhaps at present (a) As to the appeal from the to assign tliem) are termed incerti ecclesiastical and maritime courts, temporis, compose what have been vide post, vol. in. pp. 442, 458. called the Vetera Statuta ; those from (i) Hale, Hist. C. L. c. 2 ; 1 Bl. the beginning of the reign of Edw. 3 Com. 84, As to these several courts, being contra-distinguished by the see 4 Inst. 123, 134, G2L appellation of the Nova Statuta. (c) Vide sup. p. 41. Dwarris on Statutes, 626. It may (d) The Prince's case, 8 Rep. 20. be observed, that, by 19 & 20 Vict. (e) The statutes from Magna c. 64, and by 24 & 25 Vict. c. 101, Charta down to the end of Edw. 2, a variety of Acts and parts of Acts including also some which (because not in use, or which have ceased to it is doubtful to which of the three be in force, are now expressly re- reigns of Hen. 3, Edw. 1, or Edw. 2 pealed. f3 70 INTRODUCTION. [ciTiTently received for the maxims of tlic old common law.] The manner of making these statntes will he hetter con- sidered hereafter, when we examine the constitution of parhament (/). At present we will only take notice of the different kinds of statutes ; and of the rules of law with regard to their effect and construction ig). First, as to their several kinds. Statutes are either pnhlic or private. A public Act is an universal rule that regards the whole community {h). PriA^ate Acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns : such as the Romans entitled senatus decreta, in contradistinction to the senatus consulta, which regarded the whole commu- (/) As to the constitution of par- liament, vide post, bk. iv. pt. i. c. i. {g) The method of citing these acts of parliament is various. Many of our antient statutes are called after the name of the place where the parliament was held tiiat made them ; — as the statutes of Merton and Warleberge, of Westminster, Glou- cester and Winchester. Otliers are denominated entirely from their sub- ject; — as the statutes of Wales and Ireland, the articuli cleri and the prcBTogativa regis. Some are distin- guished by their initial woi'ds, a method of citing very antient ; being used by the Jews in denominating the books of the Pentateuch ; by the Christian Church in distinguishing their hymns and divine offices ; by the Romanists in describing their papal bulls ; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to cha])ters, Lut in- ferior sections also ; in imitation of all which we still call some of our old statutes by their initial words, as the statute of Quia emptores, and that of Circumspecle agatis. But the most usual method of citing them, especially since the time of Edward 2, is by naming the year of the king's reign in which the statute was made, together with the chapter or particular act, according to its numeral order ; — as, 9 Geo. 2, c. 4. For all the acts of one session of parliament taken together make pro- perly but one statute; and therefore when two sessions have been held in one year, we usually mention stat. 1 or 2. Thus the Bill of Rights is cited as 1 W. & M. st. 2, c. 2, sig- nifying that it is the second chapter or act, of the second statute, or the laws made in the second session of parliament, in the first year of King William and Queen Mary. See also 13 & 14 Vict. c. 21, s. 3, as to the method of citing, in an act of parlia- ment, any former statute. (h) Lord Cromvi'ell's case, 4 Rep. 13 a; Holland's case, ibid. 76 a; Kirku Nowill, IT.R. 125 ; Samutl V. Evans, 2 T. R. 5G9. SECT. III.] OF THE LAWS OF ENGLAND. 71 nity (i). Thus — to show the distinction — the statute 13 Ehz. c. 10, which prevents the master and felloAvs of any college, the dean and chapter of a cathedral, or any other person having a spiritual living, from making leases for longer terms than twenty-one years, or three lives, is a pubhc act ( J) ; it being a ride prescribed to spiritual per- sons in general : but an act to enable the Bishop of Chester to make a lease to A. B. for sixty years, which is otherwise, in general, beyond a bishop's power (k), con- cerns only the parties and the bishop's successors, and is therefore a private act. Of private acts, some are local, as affecting particidar places only (/) ; others personal, as corifined to particxilar persons. Of the first kind, an in- closm*e act is an example ; of the second, an act for a change of name. With respect to the distinction between public and private statutes, it is to be observed that, as the law till lately stood, the coui'ts of law were bound to take notice judicially and ex officio of the former, but not of the latter ; so that, in order to claim any advantage imder a private act, it was necessary to plead and set it forth particidarly. But now, by 13 & 14 Vict. c. 21, s. 7, every act made after the commencement of the then next session of parliament, is to be taken to be a public one, and judicially noticed as such, miless the contraiy be expressly declared (?w). Statutes also are sometimes described as declaratory, or jjenal, or remedial, according to the different natiu-e of their object or provisions. Declaratory statutes are where the (i) Gravin. Orig. 1, § 24. nience of reference, acts are also {j) Holland's case, ubi supra. now divided, in our printed statute (A-) See as to church leases, post, hooks, into public general acts — locdl bk. IV. pt. II. c. III. a7id personal acts declared public — (0 See 14 & 15 Vict. c. 49, as to private printed acts — and private acts preliminary inquiries to be made in not printed. See 5 & 6 \ict. c. 97, cases of application for local acts in s. 5 ; Barnett v. Cox, 9 Q. B. 623. certain cases. See further as to private acts of par- (m) See Hargreavcs v. Lancaster liament, post, bk. ii. pt. i. c. xxi. ; and Preston Railway Company, 1 bk. iv. pt. i. c. i. Ilailw. Cas. 416. For the conve- 72 INTRODUCTION. old custom of the kingdom is almost fallen into disuse, or Eecomc disputable ; in wluch case the parliament has thought proper, in j)erpettium rei testimonium, and for avoid- ing all doubts and difficvdties, to declare what the common law is and ever hath been. Thus, the statute of treasons, 25 Edw. III. c. 2, makes not any new species^ oftreasons ; but only, for the benefit of the subject, declares and enu- merates those several kinds of offence, which before were treason at the common laAv. Penal acts are those which merely impose penalties or pimishments for an offence committed, as in the case of the statutes relative to game. Remedial acts are such as supply some defect in the exist- ing law, and redress some abuse or inconvenience with Avhich Tt is foimd to be attended, ^dthout uatroducing any provision of a penal character ; — as in the case of the statute 3 & 4 Will. IV. c. 105, Avhich introduces various improvements in the law relating to dower. But it is not every statute that falls within one or other of these divi- sions ; for some combine more than one of these objects, and others have objects of a different description. There is also a distinction of acts of parliament, as being either enlarging, or restraining , enabling, or disabling acts. Thus the 32 Hen. VIII. c. 28, which gave bishops and other sole ecclesiastical corporations (except parsons and vicars) a more ample power of making leases than they possessed before, is called an enabling statute : the 13 Eliz. c. 10, which afterwards imposed the Limitations above noticed (w) as to the making of leases by ecclesiastical persons, is described as a restraining or disabling statute (o). S econ dly, as to their interpretation. In interpreting statutes (as well as in declaring the rule of the common law {p), ) the com-ts are governed by fonner adjudica- tions (9); or, in the absence of these, by analogy and (n) Vide sup. p. 71. {q) By Lord Kenyon, Lacon v. (o) Co. Litt. 44 b ; 1 BI. Com. 87. Hooper, 6 T. R, 224 : and see Rex {})) Vide sup. p. 48. v. Leek Wootton, 16 East, 122. SECT. III.] OF THE LAWS OF ENGLAND. 73 general reasoning (r). But many specific rules are also laid doAvn for their guidance ; and principally these which follow. 1. A statute begins to operate from the time when it receives the royal assent, unless some other time be fixed by the act itself for the pm-pose (s). The inile on this subject was f ormerly different ; for at common law every act of parliament, which had no provision to the contraiy , Ava.s considered, as soon as it passed, (that is, received the ro} al assent,) as having been in force retrospectively fi'om the~Hrst day of the session of parliament in which it passed, though in fact it might not have received the royal assent, or even been introduced into parliament, until long after that day. Thus where a statute pro\aded that every deed of annuity granted after the passing of the act should be inroUed within twenty days after execution, and the act received the royal assent in May, 1777, but the session had commenced in October, 1776, an annuity deed, exe- cuted in January, 1777, nearly foiu' months before the royal assent was given, but after the commencement of the session, was adjudged to be void for non-compliance A^dth the provision (t). This strange j^rinciple, however, though rigidly observed for centimes, no longer prevails ; it being expressly provided by 33 Geo. III. c. 13, that, where no other dh-ection is given, every act shall be con- sidered as commencing fi'om the date indorsed upon it as the date of its receiving the royal assent — a manifest im- provement, it must be owned, on the former law ; though it has been doubted (u) (and -with reason) whether even the new rule is placed upon the right basis, and whether some fixed and reasonable period ought not always to be (r) Hob. 346. otherwise provided, and except as (s) 33 Geo. 3, c. 13; Nares v. to penalties,) from the expiration of Rowles, 14 East, 510. But where the former; 48 Geo. 3, c. 106. an act expires before a bill for con- {t) Latless v. Holmes, 4 T. R. G60. tinuing it, introduced in the same (u) See Kent's Comm. Lect. 20 ; session, receives the royal assent, Dwarris on Stats. 683. the latter act takes effect (unless 74 INTRODUCTION. interposed between tlie passing of an act and tlie time of its coming into operation, so as to give the subjects of the reahn an opportimity of becoming acquainted with its provisions (x). The iiile, it will be obsen-ed, is laid down A^dth an exception of the case where the period of com- mencement is otherAA-ise fixed by the statute itself; for by force of an express proA-ision, or even by necessary con- struction from the natiu-e of the enactment, the opera- tion of a statute may be either postponed on the one hand, or haA^e a retrospective relation on the other, so as to affect rights which had A'ested before it r{.'cei\'ed the royaf assent, or transactions which had before then^teken place (y), 2. Statutes are to be construed not according to their mere letter, but the intent and object AAdtli Avhich they were made (z). It occasionally happens therefore that the judges AA'ho expound them are oljliged, in faA-our of the intention, to depart in some measure fi-om the Avords. And this may be either by holding that a case AAathin the words, is not Avithin the meaning ; or that a case not Avithin the Avords, is Avithin the meaning. Thus Avhere a statute provides that all who shall commit a certain act shall be deemed felons, yet a madman AA^ho does the act shall not be deemed a felon ; for that Avould be contrary to the presumable intention (a). And so, on the other hand, AA'here an act of parliament gaA'e the OAAaiers of inherit- ances a remedy by action against such tenants holding for li fe or years as should commit waste (i. e. sjjoil and de- struction); the action was held maintainable agiiinst^a te nant h olding only for one year or less, for so the law- makers presumably designed (6). In all instances Avhere (x) This is the principle of the v. Durden, 2 Exch. 22. modern French law; vide Code (?) Bac. Ab. Statute (1)5 ; Strad- Civil, tit. Prelim. ling v. Morgan, Plow. 205; Rex v. {y) Upon the subject of construing Everdon, 9 East, 101. a statute retrospectively, see Burn v. (a) Eyston v. Studd, Plow. 465. Carvalho, 1 Ad. & El. 338 ; Hitch- {h) Ibid. 467. cock V. Way, 6 Ad. & El. 943 ; Moon SECT. III.] OF THE LAWS OF ENGLAND. 75 the strict letter of the law is thus corrected by reference to its intention, the construction is said to be by equity {c), a phrase not peculiar to the law of England, but used by foreign jurists in the same sense ((?). Thus, in the first example, the case would be said to be oiit "of the eq^uity of tKe^ct_[ in the second to be within its ecj^uity (e). It is to be observed, however, that this principle of equitable construction is not to be carried beyond certain bounds, and a judge is not at Uberty, in favour of a supposed intention, to clfsregard the express letter of the statute, where, for anything that appears, the wording may corre- spond with the actual design of the legislature — the maxim in cases of this description being that a verbis legis non recedendum est (/). It is also important to remark, that the rule in question has been applied more freely to the antient statutes than it now is to those of more modern date, which are interpreted somewhat more strictly, and with closer adherence to tlic letter (^). For the style of framing acts of parliament has itself undergone a material change— those of a more antient era being comparatively short and general in their character, while the later acts are expanded into minute detail, and intended to reach every specific case ; and, therefore, in adopting a construc- tion not in strict conformity with the language of the legis- lative, there is more danger, than there once was, of going beyond, or falling short of, its real intention. 3. Another maxim (and one that may often serve for oiu: guidance in the apphcation of the last,) is, that, ii^the (c) Eyston v. Studd, Plow. 465, and see Jones i'. Smart, 1 T. Pi. 53 ; 407 ; Co. Litt. 24 b ; 1 Bl. Com. 62. and R. v. Inhabitants of Great Bent- The term is of very early occurrence ley, 10 Barn. & Cress. 520. in our law; vide Bract, lib. 1, c. 4, (g) Per Coleridge, J., Rex ?;, Gard- p. 3 a; lib. 2,0. 7, p. 23 b. ner, 6 Ad. & El. 118; and see {d) Grotius de ^Equitate, s. 3; Brandling u. Barrington, 6 Barn. & Puffendorf, Elem. Jur. Un. lib. 1, Cress. 475; Rex v. Inhabitants of ss. 22, 23. Barham, 8 Barn. & Cress. 104 ; Not- (e) 3 Bl. Com. 431. The latter ley u. Buck, ib. 164; Adam v. In- expression is of more familiar occur- habitants of Bristol, 2 Ad. & EI. rence, however, than the former. 395, 399. (/) Edrich's case, 5 llc[). 118 b.; 76 INTRODUCTION. interpretation of statutes in general, the following points are to be considered, — tlie old law, the mischief, and the re med y ; that is, how the common law stood at the making of the act, what the mischief was for which the common law did not provide, and what remedy the parhament hath pro^aded to cure this mischief (A). And here an example may agam be found in the restraining statute of 13 EKz. c^ltr. By the comiiKin Iuav the master and fellows of a college, and such other corporations, might let as long leases as they thought proper ; the mischief was that they let long and luireasonable leases, to the impoverishment of their successors ; the remedy applied by the statute was by makuig void all leases made by them for longer terms than three Hves, or twenty-one years. Now in the con- struction of this statute it is held, that leases, though for a longer term, made by the masters and fellows of a col- lege or a dean and chapter, are not void dvmng the con- tinuance of the master or the dean ; for the act was made for the benefit and protection of the successor (i), and the mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the gi-antors ; but the leases, during the continuance of the grantors, not being "udthia the mischief, are not within the remedy (A). 4. It is also an established rule, that remedial statutes are to be more liberally, and penal more strictly, con- strued {l). The statute of Eliza] )cth just mentioned may again serve as an example ; for soon after it was made, the master and felloAvs of INIagdalen College granted certain premises to the queen, her heu's and successors, on con- dition that she shoidd convey the same to a certain person named : and it was contended that this conveyance was not restrained by the act ; for that by the general rule of law the sovereign is not bound by a statute unless speci- (A) Heydon's case, 3 Rep. 7 ; 1 College case, 11 Rep. 73 a. Bl. Com. 87 ; 2 Inst. 110. (A) 1 Bl. Com, 87. (0 Co. Litt. 45, n. (4), by Harg. ; (0 Ibid. 88. Eac. Ab. Leases (H); Magdalen SECT. III.] OF THE LAWS OF ENGLAND. 77 ally mentioned; wliicli the couil admitted to be in many cases true. But as this was a remedial act, and made to to suppress A^Tong, it was adjudged that it should bind the queen (m). As to the stricter manner in which a penal act must be interpreted, we may resort to an illustration of Lord Bacon's, that if for a certain offence it be enacted that a man shall lose his right hand, and some offender hath had his right hand before cut off in the wars; he shall not lose his lefl hand, but the crime shall rather pass A\dthout the punishment which the law assigned, than the letter of the law shall be extended (w). This distinction apphes, it will be observed, not only to remedial and penal statutes properly so called, but also to those of a mixed kind, which contain both remedial and penal provisions (o) ; — the former of which Avill be construed with more indul- gence than the latter. To exemplify this we may refer to a decision wMch took place on the 9 Anne, c. 14, against gaming. That statute provided, that if any person shall lose at any time or sitting ten pounds, and shall pay it to the ^vinner, he may recover it back by action mtliin three months ; and if the loser does not sue within that time, any other person may sue for it and treble the value be- sides. An action being brought to recover back a sum which had been won and paid, the question was, whether the money was to be considered as won at any one sitting, so as to fall within the prohibition of the act, there ha^dng been an interruption to the play during dinner. And the court held the affirmative, because the action was not brought by a common informer for the penalty, but by the loser to regain his money ; and so far as his reimburse- ment was concerned, the statute was of a remedial cha- racter {p). (m) Magdalen College case, 11 It may be observed, that the penal- Rep. 72. ties of 9 Ann. c. 14, have been re- (n) Bac. Maxims, 12. cently repealed by 8 & 9 Vict. c. 109, (o) Piatt V. Sheriffs of London, s. 15, and the law with regard to Plowd. 36. gaming differently regulated ; vide (p) Bones t;. Booth, W. Bla. 1236. post, bk. vi. c. xii. 78 INTRODUCTIOX. 5. In the construction of a statute all other such sta- tutes ouglit to he taken into' consideration as have been made in pari materia {ff). Thus Idj the 7 Geo. II. c. 15, it was enacted, that ship-OAvners, carrjnug goods are not to be responsible for losses to such goods, incurred (mth- out their privity) by the misconduct of the master and mariners, to any greater extent than the value of the ship, with all her appurtenances, and the freight. By 26 Geo. III. c. 86, they Avere exempted from liability for loss in- curred by robbery of any persons whatsoever, farther than the value of the ship, with all her appurtenances, and the fi'eight. By 53 Geo. III. c. 159, s. 1, they were not to be answerable for losses arising fr^om any act done without their fault or privity, beyond the value of the ship and freight. Upon the last act a question arose, whether the OAvner of a vessel was ansAverable for the value of certain fishing stores belonging to the ship, and lost by an acci- dental collision at sea: and the com-t held him an sever- able ; and remarked, that in subsequent sections of the same act, and also in the two preceding acts, Avhich were in pari materia, the words used were slaip and all her ap- purtenances ; so that the section in question was to be un- derstood as if the words with all her appurtenances were used therein, supposing that those words would make any difference in the sense (r). This ride, it will be observed, appUes whether the prior statutes are referred to in the sta- tute on which the question arises, or not. They are consi- dered, indeed, as all forming one continued enactment {s). 6. FA statute which treats of things or persons of an (9) Bac. Abr. Statute (1), 2, 3; see 17 & 18 Vict. c. 125, s. 88), Jones V. Smart, 1 T. R. 53 ; King, having been incorporated in the qui tarn v. Smith, 4 T. R. 419 ; Duck 9th part of the Merchant Shipping V. Addington, 4 T. R. 447 ; Gale v. Act, 1854, the three acts mentioned Laurie, 5 Barn. & Cress. 156. in the text are repealed by the Mer- (r) Gale v. Laurie, 5 Parn. & chant Shipping Repeal Act, 1854, Cress. 156. It may be remarked, s. 14. that the substance of the provisions (s) Earl of Aylesbury v. Pattison, in favour of shipowners (as to which 1 Doug. 30. SECT. III.] OF THE LAWS OF ENGLAND. 79 [inferior rank, cannot by any general words be extended to those of a superior (^).] And therefore, inasmuch as the statute of 13 Eliz. c. 10, before referred to, applied its pro- hibition to " masters and fellows of colleges, deans and chapters of cathedrals, masters of hospitals, parsons and vicars, or any other having any spiritual or ecclesiastical living," a bishop was held not to be included i^athin its provisions ; for, though he has a spiritual living, he is of higher dignity than any of the persons enumerated (u). 7. AVliere the provision of a statute is general, every thing which is necessary to make such provision effectual is supplied by the common law (a;). And therefore, when anything is commanded or prohibited, though only in general tenns by an act of parliament, and no remedy is expressly given in the event of its provision being violated, yet is the party, who sustains an injuiy by such violation, entitled to bring an action for his private relief; and if the matter be of public concern, the offender shall besides be considered as guilty of a misdemeanor, and liable to in- dictment accordingly (y). The law in this case will be the same, even though the staluteTafter the prohibition, proceeds by a separate clause to annex a particular pecu- niary penalty to the offence if committed ; for that Avill not take away the other remedies (z): but where a statute merely inflicts ajDCCimiary penalty for an act not previously unlawful, and contains no direct prohibitory clause, no in- dictment can in this case be sustained ; — the only remedy is^t o proce ed for the penalty (a). 8. A subsequent statute may repeal a prior one, not only (t) 1 Bla. Com. 88. tery Company, 5 Bing. N. C. 253; (m) Archbishop of Canterbury's R. f. Buchanan, 12 L. J. 227. case, 2 Rep. 46 b ; 2 Hawk. c. 27, (z) Per Ashhurst, J., Rex v. Har- s. 124. ris, ubi supra; Beckford v. Hood, (x) Bac. Abr. Statute (B). 7 T. R. 620 ; Rex v. Wright, 1 Burr. (y) 2 Inst. 131, 163. See the case 5 13. of the Marshalsea, 10 Rep. 75 b; 2 («) See Rex v. Buck, 2 Str. 679 ; Hale, P. C. 171 ! Rex v. Harris, 4 Rex v. Wright, ubi supra; Rex v. T. R. 205 ; Rex v. Leginham, 1 Robinson, 2 Burr. 805. Mod. 71 ; Garden v. General Ceme- 80 INTRODUCTION. by express provision to that effect, but by necessaiy impli- cation; and every statute is a repeal by implication of a preceding statute, so far as It Is contrary thereto (&), for leges poster-lores priores abrogant ; consonant to which it was laid down by a law of the twelve tables at Rome, that quod populus postremum jussit, id jus ratum esto. But this is to be understood only when the matter of the later statute is so clearly repugnant that it necessarily imphes a nega- tive. As if a former act says, that a juror upon such a trial shall have an estate of twenty pounds a year ; and a new statute afterwards enacts, that he shall have twenty marks : — here the latter statute virtually repeals the former. For if twenty marks be made qualification sufficient, the for- mer statute which requires twenty pounds Is at an end (c). But if the acts are such that they may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. As If by a former law an offijnce be indictable at the quarter sessions, and a later law makes the same offijnce indictable at the assizes ; — here the jimsdlction of the sessions is not taken away, but botli have concurrent jm-isdlctlon, and the offender may be prosecuted at either : imless the new statute subjoins ex- press negative words, as, that the offence shall be indict- able at the assizes, and not elsewhere [d). 9. It was formerly the rule, that if a statute, repeahng another, was Itself repealed afterwards, the first statute was revived, without any formal words for that purpose (e). Thus when the statute of 5 & 6 Edw. VI. c. 12, providing that the matrimony of priests should be deemed true and lawfiil matrimony to all pru'poses, was repealed by a statute 1 Mary, st. 2, c. 2, and this latter statute was afterwards repealed by the act of 1 Jac. c. 25 ; It was held that there (6) Bac. Abr. Statute (D). See (e) See the Bishop's case, 12 Rep. Paget V. Foley, 2 Bing. N. C. 679; 7 ; 4 Inst. 325; Tattle v. Grimwood, Rex V. Middlesex Justices, 2 B. & 3 Bing. 493 ; Doe v. Gully, 9 Barn. Adol. 818. & Cress. 344; Phillips v. Hopwood, (c) Jenk. Cent. 2, 73. 10 Barn. & Cress. 39. (d) Dr. Foster's case, 11 Rep. 63. SECT. III.] OF THE LAWS OF ENGLAND. 81 needed not any express words of revival in king James's statute (tliougli such words are in fact contained), but tliat tlie act of Edward the sixth was impHedly and virtually revived ( / ). But the rule is now different, it being enacted by 13 & 14 Vict. c. 21, ss. 5, 6, that where any act re- pealing in whole or in part any former statute is itself repealed, such last repeal shall not revive the act or pro- visions before repealed, imless words be added for that purpose ; and that where any act shall be made repealing in whole or in part any former act, and substituting pro- visions instead of those repealed, such repealed provisions shall remain in force till those substituted shall come into operation by force of the last made statute. 10. [Acts of parliament derogatory from the power of subsequent parliaments Ijind not. So the statute 11 Hen. VlTTc!^ 1, which directs that no person for assisting a Idng de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prose- cutions for high treason, but it will not restrain or clog any parliamentary attainder (g). Because the legislatm-e, being in truth the sovereign power, is always of equal, always of absolute authority ; it acknowledges no supe- rior upon earth, wliich the prior legislature must have been, if its ordinances covJd bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeed- ing legislatures. " When you. repeal the law itself," says he, " you at the same time repeal the prohibitory clause, " which guards against such repeal {h)"'\ These are the several grounds of the law of England in its proper and original extent. There is a species, however, of unwritten law to which no reference has yet (/) The Bishop's case, 12 Rep. 9. ahrogatur, qtio non earn ahrogari opor- (g) 4 Inst. 43. teat."—Ij. 3, ep. 23. (ft) "Cum lex ahrogatur, illudipsum VOL. I. G 82 INTRODUCTION. been made, but whicli lias long formed part of the genei^al system, and (though here noticed in the last place) con- stitutes one of its principal divisions. T his is equity ; which is so termed by way of distinction from the original and proper law of England, or (as it is usually called in ^\ this case) the common law. For that phrase (we are to ' observe) is used in two senses — either to express the insti- tutions which are not foimded on any knoTi\Ti statute, but on custom only(i), — or those which are distinct from equity. Indeed the term senses in both cases to indicate that Avhich is more antient, as opposed to that which is less so: the statute law being of modem creation when compared mth that which is of immemorial antiquity ; and equity being of considerable later birth than some of the earher parts of the statute laAv. The origin of equity may be stated as follows. The antient structm-e of our national jurisprudence (whatever might be its merit in other particulars) was singularly defective in compass and enlargement of \'iew. It took no accomit of several sub- jects~Tor which it is the duty of ci\ilized judicatm-e to provide ; and to others it apphed maxims too strict and imbending to satisfy the notions of justice in an advanced state of society. Its judicial remedies were also in some cases of a cumbrous and inconvenient character. For these e\dls the progressive introduction of new remedial laws by act of the legislatm-e would seem to have been the natviral remedy. But the com-se of things was dif- ferent. Omng perhaps to some peculiar averseness in the early genius of the coimtry fr^om change in its J^^l institutions, the law administered between subject and subject, in the antient courts of the realm, was allowed to remain for a long period of oiu' history with veiy Httle alteration of a fundamental kind. But new com-ts were on the other hand gradually established wiTh a collateral, and in some sense, an usurj^ed jm-isdiction, in which cog- nizance was taken of those subjects which the proper la\v {i) Vide sup. pp. 41, 46, 47. SECT. III.] OF THE LAWS OF ENGLAND. 83 of England had overlooked or insufficiently regulated ; relief given from the consequences of some of its harsher doctrines ; and the defects of its judicial methods in cer- tain cases supplied. These courts ha\'ing been at the out- set chiefly resorted to for one of the particular piu'poses above enumerated, viz. the mitigation of the severity of the common law as applied to particidar cases, the whole system of rules and principles there administered obtained, (without much propriety, but in reference to the liberal principle of inteii^retation applied by jurists to the inter- pretation of positive laws(^),) the appellation oi equity, — and soon began to hold that divided empire with the more antient, or common law, which it still retains. In the coiu^s of equity is noAv administered a very large propor- tion of the Avhole forensic business of the country, (that is, in matters of property, for beyond this they have no juris- diction) ; and the extensive subjects, in particular, of trusts and "partnerships, fall almost exclusively imder their management. They are also the proper and regular com-ts to which recoiu'se is to be had, where the object is to compel a man to perfomi his contract, or abstain from the "commission of an injury : and until a very recent period they were the only comts available for either of these purposes, the common law com-ts interfering only so far as to award damages where the breach of contract or wrong had been ah-eady committed. But the jurisdic- tion of the common law courts has been now extended so as to^ embrace the latter of these purposes, as will be shown hereafter in its proper place (J). The forms of (/f) Vide sup., pp. 75, 76. Redes- theaction is brought. And see further dale, Plead, in Chan. p. 3. provisions on this subject, 23 & 24 (;) Vide post, bk. v. c. vii. By Vict. c. 126, ss. 32, 33. But the 17 & 18 Vict. 0. 125, ss. 79—82, courts of common law are still the courts of common law are now without any general power to cn- enabied, on the application of the force specifically the performance of plaintiff in an action, to issue a a contract. See Benson v. Paull, 6 writ of injunction against the repe- Ell. & Bl. 373 ; Norris v. Irish Land tition or continuance of the breach Company, 8 Ell. & Bl. 526. of contract or other injury for which 84 INTRODUCTION. proceeding in tlie courts of equity arc also peculiar_to tliemselves ; and comprise tlic metliod of requinng tlie defendant to put in, upon liis oath, a ^^Titten answer to the plaintiff's charge ; a method miknoA^Ti to the com-ts in which the common laAv is adiuinistered (m). (;«) The defendant, however, may against himself, though the case was now he compelled in the common law formerly otherwise; see 14 & 15 courts to be examined as a witness Vict. c. 99, et vide post, bk. v. c, x. ( 85 ) SECTION IV. OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. [Tlie kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common laAv, either Wales, Scotland, or Ireland,] or Berwick-upon- Tweed (a), [or any other part of the Queen's dominions except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in aE, -with more or less restrictions, in these and many other adjacent countries; — of which it mil be proper first to take a review, before we consider the kingdom of England itself, the original and proper sub- ject of these laws. Wales (b) had continued independent of England, un- conquered and imcultivated, in the primitive pastoral state which Csesar and Tacitus ascribe to Britain in general, for many centimes : even from the time of the hostile inva- sions of the Saxons, when the antient and Christian inha- bitants of the island retired to those natural intrenchments, for protection against their pagan visitants. Biit when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this re- treat of the antient Britons grew every day narrower ; they were over-run by little and httle, gradually driven (a) See Rex v. Cowle, 2 Burr. (b) As to Wales, see Vaugh. 395 850. But England now primd facie —420; Rex v. Cowle, ubi sup.; i includes Wales and Berwick; vide Inst. 239; 2 Inst. 195; Buckley*;, post, p. 93. Thomas, Plowd. 121, 123, 126, 129. 86 INTRODUCTION. [from one fastness to another, and by repeated losses abridged of their -wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the first, who may justly be styled the conqueror of Wales, the line of their antient princes was abolished (c), and the king of England's eldest son] was created (d) tlieir titular prince; [the territory of Wales being then entirely re- annexed, by a kind of feodal resumption, to the dominion of the crown of England (e); or, as the statute of] Wales (y) [expresses it, " ^erra WallicB cum incolis suis, " prius regi jure feodali suhjecta (of which homage was the *' sign), jam in proprietatis dominium totaliter et cum inte- " gritate conversa est, et corona regni Anglice tanquam pars " corporis ejusdem annexa et unita." By the statute of Whales very material alterations were also made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings ; but they still retained very mvich of their origihaT polity, particularly their rule of inheritance, viz., that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immimities were still farther abridged : but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26 ; which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave peoi^le gTadually con- quered into the enjoyment of true liberty, being insensibly (c) See Turner's Hist. Eng. p. 3, king's eldest son, the Prince of c. ii. ; Hume's Hist. Eng. c. xiii. Wales. {d) Blackstone says he became so (e) Vaugh. 400; Rex v. Cowlc, 2 "as a matter of course ;" but (as Mr. Burr. 851. Christian has remarked) the expres- (/) 12Edw. 1. Blackstone refers sion is not accurate, though it has erroneously in this place to the sta- been always usual to create the tute 10 Edvv. 1. S.IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 87 [put upon tlie same footing, and made fellow-citizens, with their conquerors. It is enacted by this statute 27 Hen. VIII. c. 26, — 1. That the dominion of Wales shaU be for ever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according; to the Enghsh tenures and rides of descent. 4. That the laws of England, and no other, shall be used in Wales : besides many other regulations of the police of this princi- pality. And the statute 34 & 35 Hen. VIII. c. 26, con- firms the same, adds farther regidations, and divides it into twelve shires (g),'] a division, it may be observed, exclusive of the coimty of Monmouth; which, though formerly part of Wales, had been made, by the 27 Hen. VIII. c. 26, just mentioned, one of the counties of the realm of England. From this time the civil condition of the principality has differed but slightly from that of the kingdom at large. There were however, until a recent period, two particulars of distinction sufficiently important to deserve nofice-^first, that Wales possessed within itself superior courts called Coiuts of Great Session (/^), independent of the process of Westminster Hall, and was not visited by the English judges of assize ; secondly, that such of its coimties and towns as were represented in parhament sent each one member only, the usual number in England being two. But by the Act for the more effectual admini- stration of justice, 1 Will. IV. c. 70, the jm-isdiction of the Courts of Great Session was abolished, and it was enacted that assizes should be held in the prmcipality, for the trial of all matters criminal and ci\al, in like manner and form as had been usual for the coimties in England. (g) By 8 & 9 Vict. c. 11, the (h) The proceedings in the courts manner of assigning .?/ier;^« in Wales of Great Session were partly regu- is regulated and assimilated to that lated by 13 Geo. 3, c. 51. in England. 88 INTRODUCTION. And by the Act to amend the representation of the peojjlc, 2 Will. XV. c. 45, a new arrangement was made as to the return of members for Wales ; by the effect of which tlu'ee of its comities respectively send two knights of the shire to parhament, and each of the remaining counties one. The kingdom of Scotland (i) — notwithstanding the union of the cro^Mis on the accession of their king James the sixth to that of England, — continued [an entirely separate and distinct kingdom for above a centmy more, though an imion had been long projected; which was judged to be the more easy to be done], as these kingdoms exhibited at the time of the project [a very great resemblance, though far from identity,] in their institutions. And this is re- marked by Sir E. Coke (J), who points out a conformity, m many things, [not only in the religion and langviage of the two nations, but also in their antient laws (A).] As to the latter particular, indeed, this resemblance did not exist at the time of the Norman conquest, for the Scottish institutions were then, according to the best authorities, exclusively Celtic (Z), and those of England, Anglo-Saxon ; but it had become established as soon afterwards as the twelfth century (wi); and not only continued to prevail at the time of the Union, but is even yet in some particulars distinctly perceptible. The diversities of practice, how- (i) As to Scotland, see 4 Inst, tatem (the authenticity of which, 34:5. though once a subject of dispute, {j) 4 Inst. 345. seems on the whole to be suffi- (A-) Blackstone says that both ciently established,) is so similar to kingdoms "were antiently under the treatise of Glanvil on English the same government," and cites law in the reign of Hen. 2, that one 1 Jac. 1, c. 1, as declaring that of them is plainly copied from the "these two mighty, famous and other. There seems little reason, antient kingdoms were formerly however, to doubt that Glanvil' s is one." But when and how they be- the original work. As to these trea- came so, is not stated. tises, see 4 Inst. 345; Erskine's (/) See Hallam's Constitutional Instit. b. 1, t 1, s. 32; Robertson's Hist. vol. iii. p. 404, 3rd ed. Chas. V. vol. i. n. (25); Reeves's (»») The most antient book of Hist. Eng. Law, vol. i. p. 225. Scottish law, called Regiam Majcs- S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 89 ever, in two large and independent jurisdictions, and the acts of two distinct parliaments, have in process of time naturally tended to introduce great diversities; to which we may add, as a co-operative cause, the antient alliance and connection of Scotland with France, where the civil law chiefly prevailed. For to that law the Scottish juris- prudence ultimately became in many respects conformable ; and particularly in all that regards contracts and com- merce {n). To reciu* however to the history of the Union: it ap- peared to Sir Edward Coke, and the politicians of that time, to be attended (notwithstanding the similarity of the two systems of law) with gi-eat difficidties; but [these were at length overcome, and the great work was happily efiected in the reign of Queen Anne(o); when twenty- five articles of union were agi*eed to by the parliaments of both nations; the purport of the most considerable being as follows ; — that 1. On the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be imited into one kingdom, by the name of Great Britain. 2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England. 3. The united kingdom shall be represented by one parliament. 4. There shall be a communication of all rights and pri vileg es between the subjects of both kingdoms, except where it is other\\dse agreed. 9. When England raises 2,000,000^ by a land tax, Scotland shall raise 48,000^. Tg, 17. The standards of the coin, of weights, and of (n) See Erskine's Instit. b. 1, 1. 1, lated on several miscellaneous points s. 41. By 19 & 20 Vict. c. 60, and affecting trade and commerce. c. 97, the laws of England and (o) See the act of Union (5 Ann. Scotland have recently been assimi- c. 8) ; aiul 6 Ann. cc. 6, 23. 90 INTRODUCTION. [measures, shall be reduced to those of England, throug-li- out the united kingdoms. 18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England (p). But all the other laws of Scotland shall remain in force : tiioufrh alterable by the j^arhament of Great Britain. Yet A\dth tliis caution, that laws relating to public ])olioy are altor- able^alTlic dl^ci'ction of the parliament; ];n\s iclatiiio- to private right are not to be altered but fur the evident u tility of the peojjle of Scotland. 22. Sixteen peers arc to be chosen to represent the peerage of Scotland in parhament(5'), and forty-five mem- bers to sit in the house of commons;] which number of commoners has, however, by an act of parliament passed in the year 1832, been raised to fifty-three (r). 23. [The sixteen representative peers of Scotland shall have all pri\aleges of parliament : and all peers of Scot- land shall be peers of Great Britain ; and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer (s). These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Anne c. 8 : m which statute there are also two acts of parlia- ment recited; the one of Scotland (^), Avhereby the chm-cli of Scotland, and also the foiu' universities of that king- dom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same ; the other of England (2/), Avhereby the acts of miifoi-mitj'- of the thirteenth year of Elizabeth and the tliirteenth year of (73) See Maxwell j;. Mayre, 1 Bla. Fort. Rep. 165; Duke of Queens- Rep. 271, 364. berry's case, 1 Peere Wms. 582. ((7) 6 Ann. c. 23. And see 2 & 3 (0 1 W. & M. c. 5 (an Act for se- Will. 4, c. 63; 14 & 15 Vict. c. 87; curing the Protestant religion and 15 & 16 Vict. c. 35. Presbyterian church government). (r) 2& 3 Will. 4, c. 65. (TneAct {u) 5 Ann. c. 5 (an Act for se- to amend the rejjresentation of the curing the church of England as by people in Scotland.) law established). {s) See Lord Mornington's case, S.IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 91 [Charles the second (except as_the same had been altered by par liament at that time), and all other acts then in force for the preservation of the church of England, are declarect perpetual ; and it is stipidated that every subse- quent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the to^\Ti of BenAdck-upon-Tweed. And it is enacted, that these two Acts " shall for ever be observed as funda- mental and essential conditions of the union." Upon these articles and acts of imion, it is to be ob- served, — 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again ; except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points A^hich, when they were separate and independent nations, it was mutually stipulated should be " fimdamental and essential conditions of the imion (t^)." 2. That whatever («) It may be justly doubted wbether even sucb an infi-ingement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union ; for the bare idea of a state without a power some- where vested to alter every part of its laws is the height of political absurdity. The tnitii seems to be^ that in such an incorporate union (wKich is well distinguished by a very learned prelate from afoederate alliance, where such an infringement would certainly rescind the com- pact,) the two contracting states are totally annihilated, without any power of a revival ; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See War- burton's Alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union. To illustrate this matter a little farther ; an act of parliament to re- peal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and notwithstanding such an act, the union would continue unbroken. Nay, each of these mea- sures might be safely and honourably pursued, if respectively agreeable to the sentiments of the English church or the kirk in Scotland. But it should seem neitlier prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the in- herent powers of parliament, or at the instance of mere individuals. So sacred, indeed, are the laws 92 INTRODUCTION. [else may be deemed " fimdamental and essential condi- tions," the preservation of the two chui-ches of England and Scotland in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common j)rayer, are ex- pressly declared so to be. 3. That therefore any altera- tion in the constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectively or repre- sentatively given,) would be an infringement of these *' fundamental and essential conditions," and greatly en- danger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, imless altered by parliament ; and, as the parliament has not yet thought proper, except in certain instances, to alter them, they still (with regard to the particulars im- altered) continue in flill force. ^Vlierefore the municipal laws of England are, generally S23eaking, of no force or validity in Scotland ;] nor, on the other hand, are those of Scotland of force or validity in England (x) ; [and of consequence, in the ensuing Commentaries, we shall have very Kttle occasion to mention, any farther than sometimes by way of illustration, the mmiicipal laws of the Scottish part of the united kingdom.] It is however to be ob- serv^ed, that acts of parliament, passed since the union, extend in general to Scotland, though that country be not expressly mentioned. If it be intended to except Scot- land, there must be an express .proviso to that effect, or the intention of the legislature to except it must be other- wise sufficiently indicated (y). above mentioned (for protecting judicial notice of the state of the each church and the English li- law in Scotland ; but (as in the case turgy) esteemed, that in the regency of a foreign country) if any question Acts, both of 1751 and 1765, the re- upon it happens to arise, it is con- gents are expressly disabled frjm as- sidered as a matter oi fact to be as- senting to the repeal or alteration of certained by evidence. (Woodham either these or the act of settlement, v. Edwardes, 5 Ad. & El. 771.) (j;) Our courts do not even take {y) Rex t;. Cowle, 2 Burr. 853. S.IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 93^ [The toA\Ti of Berwick-upon-Tweed was originally part of the kingdom of Scotland ; and, as such, was for a time reduced by King Edward the first into the possession of the cro^vn of England ; and dm^ng such its subjection, it received from that prince a charter, which (after its sub- sequent cession by Edward Balliol to be for ever united to the crown and realm of England,) was confirmed by King Edward the third, with some additions ; particidarly that it shoidd be governed by the laws and usages which it en- joyed dming the time of King Alexander, that is, before its reduction by Edward the first. Its constitution was new-modelled, and put upon an English footing by a charter of K^ing James the first : and all its liberties, fi-anchises, and customs were confirmed in parliament by the statutes 22 Ed^v. IV. c. 8, and 2 Jac. I. c. 28. Though therefore it hath some local peculiarities, derived from the antient laws of Scotland, yet it is clearly part of the realm of England (z), being represented by biu'gesses in the house of commons, and boimd by all acts of the British parliament, whether specially named or otherwise. And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. c. 42, s. 3, that where England only is men- tioned in any act of pai'liament, the same notwithstanding hath and shall be " deemed to comprehend and include the dominion of Wales and town of Berv^dck-upon-Tweed."] Berwick, however, is no part of the coimty of Northmn- berland (a) ; but forms, in some sense, a county of itself; that is, a count?/ of a town corporate (b) : as to the effect of which, the reader is referred to the observations which we shall have occasion presently to make when we come to explain the nature of counties corporate (c). (z) See Hale, Hist. C. L. c. 9 ; 860; Mayor of Berwick n. Shanks, Rex V. Cowle, 2 Burr. 853 ; Com. ubi sup. Dig. Scotland (B.)i Mayor of Ber- (6) See 5 & GWill. 4, c. 76, ss. 61, wick r. Shanks, 3 Bing. 459. 109 ; 6 & 7 Will. 4, c. 103, s. 6. (a) See Rex v. Cowle, 2 Burr. (c) Vide post, 137. ♦94 INTRODUCTION. As to Ireland (f?), its inliabitfints, at tlic time of the con- qiiest of the island by Henry the second, were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons (e). But on such conquest, the laws of England were received and sworn to by the Irish nation assembled at tEe council of Lismore ( /). And afterwards [King John, in the twelfth year of his reign, Avent into Ireland and carried over Avith him many able sages of the law ; and there by his letters- patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England (^): which letters-patent Sir Edward Coke apprehends to have been there confirmed in parHament (^). But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon laAv : so that both Henry the third (i) and Edward the first (k) were obliged to renew the injunction ; and atj.ength in a parhament holden at Killvenny, 40 Edw. III., under Lionel Duke of Clarence, the then lieutenant of Ireland, the Brelion law was fomially abolished, it being unanimously declared to be indeed no law, but a leAvd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives stiU kept and preserved their Brehon law ; which is described (Z) to have been " a rule of right im- " "written, but delivered by tradition from one to another, *' in which oftentimes there appeared great show of equity " in determinmg the right between party and party, but in *' many things repugnant quite both to God's laws and (fi) As to Ireland, see 4 Inst. 349. (0 A. R, 30 ; 1 Rym, Feed. 442. (e) 4 Inst. 358; Edm. Spenser's {7c) A. R. 5. — "Pro eo quod leges State of Ireland, p. 1513, edit. qidhus utmitur Hyhernici Deo detesta- Huglies. hiles existunt, et omni jtiri dissonant, (/) Pryn. on 4 Inst. 249. adeo quod leges censeri non deheant, (g) See Craw v. Ramsay, Vaugli. nobis et consiUo nostro satis videtur ex- 294; 2Pryn.Rec. 85 ; Calvin's case, pediens,eisdemutendasconcedere leges 7 Rep. 23 ; Campbell v. Hall, Cowp. Jnglicanas." — Pryn. Rec, 1218. 210. (/) See Spenser's State of Ireland, (A) Co. Litt. 141. ubi sup. S.IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 95 [" man's." The latter part of this character Is alone ascribed to it, by the laws before cited of Edward the first and his grandson.] Notwithstanding this settlement of Ireland, it was only entitled the dominion or lordship of Ireland {rti), and the king's style was no other than Dominus HibernicB, lord of Ireland, tiH the thirty-thii-d year of King Henry the eighth, when he assumed the title of Idng, which is recognized by act of parliament, 35 Hen. VIII. c. 3. But [as Ireland was a distinct dominion, and had parhaments of its o^vn, it is to be observed, that though the immemorial customs, or common law, of England were made the ride of justice in Ireland also, yet no acts of the English parliament, since the twelfth of King John, extended into that kingdom ; unless it were specially named, or included under general words, such as, " within any of the king's dominions." And this is particularly expressed, and the reason given, in the Year Books (n) ; where it is said, " a tax granted by the " parliament of England shall not bind those of Ireland, *' because they are not summoned to our parliament ;" and again, " Ireland hath a parliament of its own, and maketh " and altereth laws ; and our statutes do not bind them (o), " because they do not send knights to our parhament ; " but their persons are the king's subjects, like as the " inhabitants of Calais, Gascoigne, and Guienne, while " they continued imder the king's subjection." The ge- neral run of laws, enacted by the superior state, are supposed to be calcidated for its own internal government, and do not extend to its distant dependent coimtries, which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But when the sovereign legislative power sees it necessaiy to extend its care to any of its subordinate dominions, and mentions (m) Stat. Hiberniae, 14 lien. 3. following parenthesis, d/s;. "(which (w) 20 Hen. 6, 8 ; 2 Rich. 3, 12. is to be understood unless specially (o) Lord Coke, citing this in Cal- named)." vin's case (7 Rep. 22), inserts the 96 INTRODUCTION. [tliem expressly by name, or Includes tliem under general words, there can be no doubt but then they are bomid by its laws (jo). The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws as they thought proper {q). But an ill use being made of this liberty, particularly by Lord GormanstoAvn, deputy- lieutenant in the reign of Edward the fourth {r), a set of statutes were there enacted in the tenth year of Henry the seventh (Sir Edward Pojoiings being then lord deputy, whence they are called Poynings' laws), one of which {s), in order to restrain the power as well of the deputy as of the Irish parhament, provides, — 1. That, before any par- liament be summoned or liolden, the chief governor and coimcil of Ireland shall certify to the Idng, under the great seal of Ireland, the considerations and causes thereof, and the articles of the acts proposed to be passed therein ; and 2. That after the Idng, in his council of England, shaE have considered, approved or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given licence to summon and hold a parliament, then the same shall be summoned and held ; and therem the said acts so certified, and no other, shall be proposed, received, or rejected (t). But as this precluded any laws from being proposed but such as were pre-conceived before the parliament was in being, which occasioned many inconveniences, and made fi'e- quent dissolutions necessary,] it was after^vards provided by the Irish statute of 3 & 4 Ph. & Maiy, c. 4, [that any new propositions might be certified to England in the usual forms, even after the smnmons and during the session of parliament.] StiU, ho wey^r^ [there was nothing (p) Year Book, 1 Hen. 7,? ; Cal- (s) Cap. 4, expounded by 3 & 4 vin's case, 7 Rep. 22. Ph. & M. c. 4. (7) Irish Stat. 11 Eliz. st. 3, c. 8. (0 4 Inst. 353. (r) Ibid. 10 Hen. 7, c 23. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 97 [left to the parliament in Ireland, but a bare negative or power of rejecting', not of proposing or altering, any law.] But tEe usage afterwards was, that bills were often framed in either Tiouse, under the denomination of " heads for a bill or bills : " and in that shape they were offered to the consideration of the lord lieutenant and privy council : who^ upon such parliamentary intimation, or otherwise upon the application of private persons, received and transmitted such heads, or rejected them without any transmission to England. With regard, however, to " Poynings' law^ m particular, it could not be repealed or suspended unless the bill for that purpose, before it was certified to England, were approved by both houses (u). [But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law : and the measure of justice in both kingdoms becom- ing no longer uniform, it was therefore enacted by another of" Poynings' laws'^-i")? that all acts of parliament, before made in England, should be of force within the realm of Ireland (?/).] But by the same rule, that the people of Ireland were not bound by acts of the English parliament passed before this enactment, and not specially naming or referring to Ireland, so they were not bound by such acts of parliament passed after this enactment (2;). And on the other hand it was equally clear that where Ireland was particularly named, or included under general words, they were bound by such acts of parliament. [For this foUows from the very nature and constitution of a dependent state : (m) Irish Stat. 11 Eliz. st. 3, c. 8. jects therein enumerated, save so (x) Cap. 22. far as the same had been ahered or {y) 4 Inst. 351. repealed, should be accepted, used {%) 12 Rep. 112. By the Act, and executed in Ireland. A pre- however, of the Irish parliament, vious Act of the same parliament 21 & 22 Geo. 3, c. 48, ( Yelverton's (21 & 22 Geo. 3, c. 47, Irish), would Act,) it was enacted, that certain seem to repeal the provisions of statutes then made in England or 10 Hen, 7, c. 4, and 3 & 4 Ph. & M. Great Britain, relating to the sub- c. 4. VOL. I. . H 08 INTRODUCTION. [dependence being tery little else but an obligation to con- form to the vdW or law of that superior person or state upon Avliicli the inferior depends. The original and tiaie ground of this superiority, in the present case, was what we usually call, though somewhat improperly, the right of concpiest : a right allowed by the law of nations, if not by that of natm-e ; but which in reason and civil policy can mean nothing more than that, in order to put an end to hostihties, a compact is either expressly or tacitly made between the conqueror and the conquered, that, if they will acknowledge the \-ictor for their master, he will treat them for the fiitm-e as subjects, and not as enemies (a). But this state of dependence being almost forgotten, and readylo be disputed T)y the Tnsh nation, it became necessary to declare how that matter really stood; and therefore by statute 6 Geo. I. c. 5, it was declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the kmg's majesty, with the consent of the lords and commons of Great Britain in parliament, had poAver to make law^s to bind the people of Ireland.] It was not only the parliamentary constitution of Ireland that was thus placed in a state of dependence ; the same kind of inferiority attached to her com*ts of justice, from which there was an ultimate resort to the English courts, [and a "writ of eiTor (in the natvu'e of an appeal) lay from the King's Bench in Ireland to the King's Bench in England (Z>), and an appeal fr'om the chancery in Ireland immediately to the House of Lords here : — it being also expressly declared, by the 6 Geo. I. c. 5, that the peers of Ireland have no jiu^sdiction to affirm or reverse any judgments or decrees what- soever.] For it was maintained to be a proper and (a) Puff. Law of Nations, viii. 6, Hen. 8 ; as appears by the anticnt 24'. book intituled Diversity of Courts, {h) Tills was law in the time of c. Bank le Roy. S. IV.] COUNTRIES SUBJECT TO THE LAAVS OF ENGLAND. 99 necessary constitution in all inferior dominions, tliat the appeal from their courts in the last resort should be to the courts of the superior state, and this for two reasons : 1. [Because otherwise the law appointed or permitted to such inferior dominion might be insensibly changed within itself, Avithout the assent of the superior. 2. Be- cause otherwise judgments might be giA^en to the disad- vantage or diminution of the superiority ; or to make the dependence to be only of the person of the king, and not of the croAvn of England (c).] The time hoAvcA-er at length arrived when Ireland, im- patient of a subordinate position, was enabled to assert her rights as a free and independent state. The statute of 6 Geo. I., before mentioned, ha^ang been first repealed (c?); it AA^as by 23 Geo. III. c. 28, declared that the parhament and courts of Ireland had an exclusive right as to all mat- ters of legislation and judicature in that country ; and this emancipation was follo^ved at no distant period by the great measure which incorporated her (like Scotland) as an "integral part of the British dominions. Of the articles of the Act of Union A\ath Ireland (39 & 40 Geo. III. c. 67) the most important parts are these : — 1. That the kingdoms of Great Britain and Ireland shaU, on the 1st day of January, 1801, and for CA^er after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland. 2. That the succession to the imperial crown shall con- tinue in the same manner as that to the crown of Great Britain and Ireland stood before limited. 3. That there sliall be one parhament, styled the Par- liament of the United Kingdom of Great Britain and Ireland. 4. That the Lords spiritual of Ireland by rotation of sessions, and tAventy-eight Lords temporal of Ireland, elected for hfe by the peers of Ireland, shall sit in the (c) Vaughan, 402; I Bl. Com. {d) By 22 Geo. 3, c. 53. 104. II 2 100 TNTRODUCTIOX. Ploiise of Lords, and one Innidred commoners — to whom five more have noAv been added by a later aet of parha- ment(e) — shall be the number to sit in the House of Commons on the part of Ireland : that a pe'er of Ireland, not elected one of the twenty-eight, may sit in the House of Commons ; but while so sitting shall not be entitled to pri\nlege of peei'age, or to be elected one of the twenty- eight, or to vote at such election : and that aU the lords spiritual and temporal of Ireland (except those temporal peers who may be members of the House of Commons,) shall have aU privilege of peerage as fully as those of Great Britain ; — the right of sitting in the House of Lords (with its attendant priAaleges) only excepted. 5. That the churches of England and Ireland shall be united into one Protestant ejiiscopal church, to be called the United Church of England and Ireland ; that the doc- trine, worship and discipline shall be the same ; and that the continuance and preservation of the united church, as the established church of England and Ireland, shall be deemed an essential and fundamental part of the union ; and that in like manner the church of Scotland shall re- main the same as established by the acts of Union of Eng- land and Scotland. 6. That the subjects of Great Britain and Ireland shall be entitled to the same pri\41eges AA^ith regard to trade and navigation (/), and also in respect of aU treaties Avith fo- reign poAvers. 7. That the fixture expenditure of the united kingdom shall be defrayed in such proportion as parliament shall from time to time deem reasonable, according to certain rules prescribed for that purpose in the Act. 8. That all the laws and courts of each kingdom, shall remain the same as afready established, subject to such alterations by the united parliament as circumstances may (e) 2&3 Will. 4, c. 88 (an Act (/) See Attorney-General v. to amend the representation of the M'Kenzie, 11 Price, 284. people of Ireland). S. IV.] COUNTRIES SUBJECT TO THE LAAVS OF ENGLAND. 101 require ; but that all writs of error and appeal which might then have been decided in the House of Lords of either kingdom, shall be decided by the House of Lords of the united kingdom. Since the union all acts of parliament extend to Ireland, whether expressly mentioned or not, unless that portion of the united kingdom be expressly excepted, or the intention to except it be otherwise plainly shoAvn. [With regard to the other adjacent Islands, which are subject to the crown of Great Britain, some of them (as the Isle of Wight {g), the Isle of Portland, the Isle of Thanet, &c.) are comprised within some neighbouring county, and are therefore to be looked upon as annexed to the mother island and part of the kingdom of Eng- land (It). But there are others which require a more par- ticular consideration. And first, the Isle of Man (i) is a distinct territory fi'om England, andjis not governed by our laws ; neither dotlTany act of parliament extend to it, unless it be parti- cularTy named therein, and then an act of parliament is binding there ij). It was formerly a subordinate feuda- tory kingdom, subject to the kings of Norway; then to King John and Henry the third of England ; aftei*wards to the kings of Scotland ; and then again to the crown of England; and then at length Ave find King Henry the fourth claiming the island by right of conquest, and dis- posing of it to the Earl of Northumberland; upon AA'hose ig) The Isle of Wight, for the 18 & 19 Vict. c. AG, s. 24, it is made purpose of parliamentary representa- part of the Ui)ited Kingdom for cus- tion, is a county of itself, separate toms purposes, but with a saving as from Hampshire, and returns one to rights then existing. As to court member ; (see 2 Will. 4, c. 45, s. 16.) of probate commissioners there, see (h) Com. Dig. Navigation, F. 5 ; 21 & 22 Vict. c. 95, s. 30; as to 4 Inst. 287. harbours there, 23 & 24 Vict. c. 56. (?) Com. Dig. Navigation, F. 2 ; As to costs to and from the Crown Co. Litt. 9 a; Calvin's case, 7 Rep. in revenue proceedings there, 25 21 ; 4 Inst. 283. Vict. c. 14. (i) 4 Inst. 284; 2 And. 116. By 102 IXTRODUCTION. [attainder it was granted (by the name of the lordship of Man)~To Sir John de Stanley by letters-patent 7 Hen. ly. (k). In his lineal descendants it continued for eight generations, till the death of Ferdinand o, Ea rl of Derby, A.D. 1594; when a controversy arose concerning the in- hentance thereof between his daughters and William, his surviving bi'other: upon which, and a doubt that Avas started concerning the validity of the origmal patent (/), the island was seized into the queen's hands, and after- -wards various grants were made of it by King James the first; all which being expired or surrendered, it was granted afresh in 7 Jac. I. to William Earl of Derby, and the heirs male of his body, with remainder to_liIs heirs general ; which grant was the next year confirmed by act of parliament, ^nth a restraint of the power of alienation by the said Earl and his issue male. On the death of James, Earl of Derby, a.d. 1735, the male line of Earl William faihng, the Duke of AthoU succeeded to the island as heir generaj. by a female branch. In the mean- time, though the title of king had long been disused, the Earls of Derby, as lords of JNIan, had maintained a sort of royal authority therein, by assenting or dissenting to laws and exercising an appellate jimsdiction. Yet, though no Engllili viTit, or process from the courts of West mins ter, was of any authority in Man, an appeal lay from a decree of the lord of the island to the_king of Great Britain in council (/»). But the distinct jm-isdiction of this little sub- ordinate royalty being found inconvenient for the pui'poses of puljlic justice, and for the revenue, (it affording a com- modious asylum for debtors, outlaws and smugglers,) au- thority was given to the treasiuy by statute 12 Geo. I. c. 28, to purchase the interest of the then proprietors for the use of the crown ; which pm-cliase was at length com- l^let ed in the y ear 1765, and conHrmecnSy statutes ^Geo. TIL cc. 26 and 39, \dierel)y the whole T^jid^^ (A) Selden, Tit. Hon. 1, 3. (m) Christians, Corren, 1 P. Wins. {I) Camden, Eliz. a.u. 159t. 329. S. IV.] COUNTEIES SUBJECT TO THE LAWS OF ENGLAND. 103 [dependencies so granted as aforesaid^ (except the landed property and some other rights of the Atholl family,) are unaTienably vested in the crown (w), and snbjected to the regulations of the British excise (o) and customs {p). Th e islan ds of Jersey, Guernsey, Sark, Aldemey, and their appendages (7),] often called the Channel Islands, [were parcel of the duchy of Normandy, and were united to the cro\^Ti of England by the first princes of the Nor- man line. They are governed by their o^^^l laws, which are for the most part the ducal customs of Normandy, being collected in an antient book of very great authority, intituled Le Grand Coiistumler {r). The queen's ^Ynt or process from the courts of Westminster is] in ordinary cases (s) [of no force in these islands ; but her commission is (t). They are not bound by common acts of the English parliament7~iinTess particularly named. All causes are originally determined by their oavq officers, the bailiffs and jurats of the islands ; but appeal lies from them to the sovereign in council in the last resort.] From these adjacent islands we may now extend our view to the more distant possessionsT or dejoendencies of the British crown in various quarters of the globe. Most of these are usually called colonies, and whenever in the course of Avhat follows that term is used, it is to be under- stood as refen'ing to them all. Colonies are no part of the (?«) An additional compensation (/•) See Hale, Hist. Com. Law, forthiscessionwasafterwardsgranted c. 6. to the Duke of Atholl by 45 Geo. 3, (s) 4 Inst. 286. It may be ob- c. 123. And see 6 Geo. 4, c. 34. served,however, that a writ of habeas (0) See 7 & 8 Geo. 4, c. 53, s. 3. corpus ad subjiciendum lies into the (p) See 16 & 17 Vict. c. 107, ss. channelislands, under the provisions 9, 10, 346—355 ; 18 & 19 Vict. c. of 31 Car. 2, c. 2, and 56 Geo. 3, c. 96, ss. 12, 23, 24, c. 97. 100. Carus Wilson's case, 7 Q. B. (5) As to these, see 4 Inst. 286 ; 984; (vide post, vol. iv. p. 27.) Calvin's case, 7 Rep. 20 b ; Martin {t) As to appointing court of pro- V. M'Culloch, 1 Moore, Priv. Counc. batecommissioners there, see 21 & 22 Rep. 308. Vict. c. 95, s. 30. 104 INTliODUCTIOX. mother countiy, but distinct though dependent) donii- nions. In general, they are either gained fx'om other states bj conquest or treaty ; or else they are acquired by right of occupancy only, that is, by finding them desert and imcidtivated, and peopling them from the mother countr}'. [Both these rights are foimded upon the. Jaw of nature, or at least upon that of nations. But there is a difference between these two species of colonies with respect to the laAvs by which they are bound.] For in conquered or ceded countiies that have akeady laws of thefr own, these Jaws remain in force imtil changed by competent autho- rity (u), and the common law of England, as such, has no allowance or authority there : while, on the other hand, [it hath been held (y), that if an xminhabited country be discovered and planted by English subjects, all the Eng- lish laws then in being — which are the bii-tlunght of eveiy subject (a;) — are immediately there in force. But this must be understood with very many and very great re- strictions. Such colonists carry with them only so much of the English law a_s_is ^)pHcable to their own_ situation and the condition of an infant colony ; such, for instance, as the general rules of inheritance, and of protection from personal injui-ies. The artificial refinements and distinc- tions incident to the property of a great and commercial people, the laws of poUce and reveuue (such especially as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other pro\4sions, are neither necessaiy nor convenient for them, and therefore are not m force.] The sovereign exj^'cises, as to colonies of every descrip- («) Campbell V. Hall, Cowp. 204 ; vin's case, 7 Rep. 17 b;) but that 2 P. Wms. 7^jRcx v. Vaughan, 4 doctrine is of questionable authority. Burr. 2500. It has been said that (Campbell v. Hall, ubi sup.) the position laid down in the t-?xt is (y) Blankard v. Galdy, Salk. 41 1 ; subject to the exception of such laws S. C. 4 Mod. 215 ; Smith v. Brown, " as are contrary to the Christian Salk. 666. religion or natural morality ;" (Cal- {x) See 2 P. Wms. 75. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 105 tion, the right of appointing governors, and of issuing Avarrants for the appointment of officers, whether judicial or administrative (y). The right of legislation, too, is in some cases vested in the Crown ; for any colony which has been acquired by conquest or cession is subject to such laws as the sovereign in council may impose {z), or to such as may be imposed by any legislative council estabhshed in the colony under the royal authority. This does not extend, however, to colonies acquired by occupancy: for in these the Cro^Ti possesses no such legislative right. The so vereign m ay, nevertheless, in any colony, however acquired, direct the governor to siunmon a representative assembly, from among the inhabitants themselves, for the purpose of interior legislation ; and it is an established principle, that a conquered or ceded colony, to which the CroA\Ti has once thus granted a repre- sentative Tegislature, is no longer subject to legislation by the"UroAvn (a). Such would seem, in a general point of view, to be the extent of the royal power in the colonies acquired either by conquest, cession or occupancy ; but in connection with this subject, it is proper also to notice the Act of 6 & 7 Vict. c. 94, passed, as it would appear, chiefly to proAade for places acquired by other means, — by which, — after reciting that, "by treaty, capitulation, grant, usage, " sufferance, and other lawfid means, her majesty hath " power and jin-isdiction -within divers countries and places " out of her dommions, and that doubts had arisen how ((/) As to the colonial c/(«rc/« esta- Sierra Leone, Natal, Graham's Town, Ushment, we may observe here, that, Quebec, Montreal, Toronto, Nova of late years, bishops have been ap- Scotia, Fredericton, Newfoundland, pointed for the colonies ; as to whom Rupert's Land, Jamaica, Barbados, see 59 Geo. 3, c. 60 ; 3 & 4 Vict. c. Antigua, Guiana, Sydney, New- 33; 5 & 6 Vict. c. 4, c. 119; 15 & castle, Melbourne, Adelaide, Tas- 16 Vict. cc. 52,53, 88; 16 & 17 mania. New Zealand, Gibraltar, Vict. c. 49; 19 & 20 Vict. c. 115, Jerusalem. s. 4. The following are colonial (2) Calvin's case, 7 Rep. 17 b ; dioceses: — Calcutta, Madras, Botn- Campbell t;. Hall, Cowp. 211. bay, Colombo, Mauritius, Victoria (a) Campbell v. Hall, ubi sup.; (Hong Kong), Labuan, Cape Town, Att.-Gen. v. Stewart, 2 Meriv. 158, 106 IXTRODUCTIOX. " far tlie exercise of such power and jurisdiction was con- " trolled by and dependent on the laws and customs of " this realm, and that it was expedient that such doubts " should be removed," — it was enacted, that it shall be laAN-fid for her majesty to exercise any powder or jurisdic- tion that she may have within any country or placeout_of her dominions, in the same and in as ample a manner as ifsucirpoAver or jmisdiction had been obtained by cession or concjuest: and that everji^hing done in pursuance of such power or jurisdiction, in any place out of her majesty's dominions, shall wdthin her dominions be deemed to be, to all intents and purposes, as valid as if done according to the local law then in force within such place ; and further, that i f in any proceedings, civil or criminal, it shall be- come necessary, in the oj)inion of the presiding judge, to produce evidence of the existence of such power or juris- diction, questions properly framed shall be transmitted to a principal secretaiy of state, and his answer shall be final and conclusive evidence of the matters therein contained, and required to be ascertained thereby (J). Such being the nature of the authority of the Crown in oiu: colonial possessions (as to which authority we may add that it is exercised through the agency of a principal secretary of state, called secretary of state for the colonies), it is almost superfluous to remark that they are all, under all circumstances and W'hatever may be their political con- stTtution,_ subject^ to the legislative control of the British parHament. It was the exercise by parliament of this general right, for the particular purpose of raising a re- venue by colonial taxation, that led to that famous dispute between^the mother coimtry and her North American p rovin ces, which iHtimately terminated in their independ- ence (c). The existen ce of the right in this, as in other (6) 6 & 7 Vict. c. 94, s. 3. See arising within the kingdom of Siam. 20 & 21 Vict. c. 75, to confirm an (c) By 22 Geo. 3, c. 46, his ma- order in council concerning the ex- jesty was empowered to conclude a ercise of jurisdiction in matters truce or peace with these colonies ; S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGL^LND. 107 cases, was dunng the controversy asserted by an act of t he 6~ Ge o. iri. c._ 12^ which declares that all his majesty's colonies or plantations in America are, and of right ought to be, subordinate to, and dependent upon, the imperial croAvn and jDarliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, sub- jects of the crown of Great Britain, in all cases whatever. It was, however, ultimately thought expedient to disclaim the exercise of the power of taxation as regarded America: it being declared by another act of the British legislature, (1 8 Ge o. III. c. 12 ^) that, from and after the passing there- of, the king and parliament of Great Britain mil not im- pose any duty, tax, or assessment whatever payable in any of his majesty's colonies, provinces, or plantations in North Amenca, or the West Indies, except only such duties as it may be expedient to impose for the regulation of com- me rce {d ); — the netj)roduce of such duties to be always paid and applie d to and for the use of the colony, province or plantation in which the same shall be respectively le\ded, in such manner as other duties collected by the authority of the respective general courts or general assemblies of such colonies, pro^dnces, or plantations, are ordinarily paid and applied. Though it is competent to parliament to legislate for the colonies, yet a colony is not considered as affected by acts of parliament passed after its acquisition, and while it is subject to other legislative authority, (whether that of the sovereign in council, or of a local council or assembly,) unless it be mentioned in the Act, by name, or by general description, such as " the colonies," or " the West In- dies" (e) ; or unless the ^A^t be, in its nature, obviously in- and by a definitive treaty signed at in the 31 Geo. 3, c.31, s. 46, relative Paris, 3rd September, 1783, acknovv- to Canada. ledged the United States of America (e) See Blankard v. Galdy, 4 Mod. to be free, sovereign and inde- 215; 2P.Wms. 75; Ilex t;. Vaughan, pendent. 4 Burr. 2500. (rf) See the recital on this subject 108 INTRODUCTION. tended to affect all our possessions. But, in a colony acqnii'cd by occupancy, Acts passed before its acquisition comie into force immediately upon that event, as part of til erG;en oral law of England, (as to all provisions at least not unsuitable to its social circumstances) — though it is otherwise in the case of a colony won by conquest or ces- sion, which remains (as we have seen) subject to its own pre-existing laws, and is not in general affected by statutes of the united kingdom passed before its acquisition. Such being the general principles of law applicable to colonies, we may next advert to the actual constitution of those which at present belong to the British Crown (jf ). (/) Of the statutes applicable to these we may here enumerate the following : — Africa {Coast of), 6 & 7 Vict. c. 13 i 21 & 22 Vict. c. 35 ; 23 & 24 Vict. c. 121. America (certain North Western territories of), 22 & 23 Vict. c. 26. Australian Colonies, 13 & 14 Vict. c. 59; 18 & 19 Vict. c. bQ; 25 & 26 Vict. c. 11. Australia {South), 4 & 5 Will. 4, c. 95 ; 1 & 2 Vict. c. 60; 5 &6Vict. c. 61 ; 18 & 19 Vict, c. 5&; 24 & 25 Vict. c. 44. Austra- lia { Western), 10 Geo. 4, c. 22 ; 9 & 10 Vict. c. 35. British Columbia, 21 & 22 Vict. c. 99; 22 & 23 Vict. c. 26, ss. 1, 2, 4. Canada, 43 Geo. 3, c. 138 ; 1 & 2 Geo. 4, c. 66 ; 3 & 4 Vict. c. 35 ; 5 & 6 Vict. c. 118; 10 & 11 Vict. c. 71 ; 11 & 12 Vict. c. .56; 14 & 15 Vict. c. 63; 16 & 17 Vict. C.21 ; 17 & 18 Vict. c. 118; 18 & 19 Vict. c. 56 ; 19 & 20 Vict. c. 23 ; 20 & 21 Vict. c. 34 ; 22 & 23 Vict. c. 10, 0. 26. Falkland Islands, 6 & 7 Vict. c. 13; 23 & 24 Vict. c. 121. Hong Kong, 6 & 7 Vict. c. 80 ; 22 & 23 Vict. c. 9. Ionian States, 20 Vict. c. 4 ; 23 Sf 24 Vict, c, 86. New Brunswick, 20 & 21 Vict. c. 34. Newfoundland, 5 & 6 Vict. c. 120 ; 9 & 10 Vict. c. 3, c. 45j 10 & 11 Vict. c. 1, c. 44; 12 & 13 Vict. c. 21. New South Wales {and Van Diemen's Land, now called Tasmania), 9 Geo. 4, c. 83 ; 6 & 7 Will. 4, c. 46; 7 Will. 4 & 1 Vict. c. 42; 1 & 2 Vict. c. 50; 2 & 3 Vict. c. 70 ; 3 & 4 Vict. c. 62 ; 4 & 5 Vict. c. 44 ; 5 8c 6 Vict. c.r76 ; 7 & 8 Vict. c. 74; 12 & 13 Vict. c. 22, c. 52 ; 18 & 19 Vict. c. 54, c. 55, s. 3, c. 56; 24 & 25 Vict. c. 44, ss. 1, 4. New Zealand, 3 & 4 Vict, c. 62 ; 9 & 10 Vict. C.103; 10 & 11 Vict. c. 112; 11 & 12 Vict. c. 5; 12 & 13 Vict. c. 79 I 13 & 14 Vict. c. 70 ; 14 & 15 Vict. cc. 84, 86 ; 15 & 16 Vict. c. 72; 20 & 21 Vict, cc. 51, 52, 53 ; 24 & 25 Vict. cc. 30, 52; 25 & 26 Vict. c. 48. Norfolk Island, 6 & 7 Vict. c. 35. Prince of Wales Island, Singapore and Ma- lacca, 18 & 19 Vict. c. 93. Quebec, 15 & 16 Vict. c. 53. Queen's Land, 24 & 25 Vict. c. 44. Sierra Leone, 24 & 25 Vict. c. 31. Fancouver's Island, 12 & 13 Vict. c. 48 ; 21 & 22 Vict. c. 99, s. 6. Van Diemen's Land, 5 & 6 Vict. c. 13 ; 8 & 9 Vict. c. 95 ; 10 & 11 Vict. c. 57 ; 18 & 19 Vict. c. 56 ; 24 & 25 Vict. c. 52. Victoria, 13 & 14 Vict. c. 59; 18 & 19 Vict. cc. 55,56; 22 & 23 Vict. c. 12. To- bago and Trinidad, 11 & 12 Vict, c. 22. Moreover with respect to the S.IV.] COUXTRIES SUB-JECT TO THE LAWS OF ENGLAND. 109 And here a great variety is obsen^able. In every case llieyare subject to a local governor, the representative and deputyof the sovereign, who acts under the royal commis- sion and the royal instructions, by which the commission is usually accompanied. In every case, too, the law is administered by local judges, demang their authority from the crown ; and an appeal is universally allowed from the decision of those judges to the sovereign in council, here i n En gland {g). But in other particulars our present colonies differ widely from each other in their plan of government, some of them having received the gift of Enghsh laws, others remaining subject to the codes of for eigner s, their former masters ; some remaining under th e legisl ative power of the crown itjelf, and others re- ceiving their laws fr^om a local legislative council, or from representative assemblies, established by authority of the crown or of parliament. With respect to those possess- ing assemblies of this description, (which are a numerous class,) it may be said that their whole interior polity is in general closely modelled uj)on that of the mother country". For having a governor (the representative of royalty), and royal courts of justice, they have also a local council, forming a sort of upper house, in addition to their general assembly, corresponding with our House of Commons ; who, by their united authority, make laws West Indies, we may notice the fol- 6 Vict. c. 4 : For establishing courts lowing Acts : For the relief of certain of appeal for certain of the West India colonies and plantations therein, 2 Si, 3 Islands, 13 & 14 Vict. c. 15: For Will. 4, c. 125; 5 & 6 Will. 4, c. 51 ; enabling Her Majesty to confirm an 3 & 4 Vict. c. 40 ; 7 & 8 Vict. c. 17 ; Jet passed by Antigua as to Barbuda, 8 & 9 Vict. c. 50 ; 11 & 12 Vict. c. 22 & 23 Vict. c. 13 : To authorize 38 ; 19 & 20 Vict. c. 35 ; For the the extension of a loan by West India sale of incumbered estates therein, 17 relief commissioners to Dominica, 23 & 18 Vict. c. 117, amended by 21 & &; 24 Vict. c. 57 : For the settlement 22 Vict. c. 96, and 25 & 26 Vict. c. of a loan due from the Island of Jw 45 : For regulating the prisons there, maica to the Imperial Government, 1 & 2 Vict. c. 67 : For increasing 25 & 26 Vict. c. 55. the number of bishoprics therein, 5 & {g) Vide post, vol. il. p. 478. 110 IXTRODUCTIOX. suited to the emergencies of the colony. This however is subject to such restriction as necessarily results from the subordination of these local establishments to the cro"\\Ti and the imperial parliament. For acts of assem- bly not only require the assent of the governor as repre- senting the crown, before they can come even into tem- porary operation, but are liable to be afterwards annu lled by a notification fro m this country of their hav i ng be en disallowed by the^overeignincouncil(i). And it is par- ticularly declared by statute 7 & S^AVill. Ill, c. 22, _rtiat all laws, bye-laws, usages and customs, which shall _b£ in practice in any of the plantations, repugnant to_anj jaw made ()v to I'c made in this kingdom relativ e to the said plantations, shall be utterlyjvoid and of none effect (/t). Thus much as to ovu- settlements in general (Z). But there is a large class of them in the West Indies and else- where, which require our separate attention, on account of their connexion with the late system of colonial slaver;;'. From the earliest period of their acquisition, their produce had been raised by the compulsory labour of the negro (j) Clark's Colonial Law, 41. 23 & 24 Vict. c. 88. As to the post- (A-) A similar declaration occurs office in the colonies, 12 & 13 Vict, in IG & 17 Vict. c. 107, s. 190, as c, 66. As to the proof of colonial to laws in our possessions in America acts of state and legal proceedings, repugnant to our laws relating to the 14 & 15 Vict. c. 49, s. 7. As to the customs, and to trade and naviga- land and casual revenues of the crown tion, so far as relates to such pes- in the colonies, 15 & 16 Vict. c. 39. sessions. As to colonial lighthouses, 18 & 19 (/) We may notice here the follow- ^'ict. c. 91. As to sale of crown ing statutes, containing recent regu- waste lands in colonies, and emigration lations applicable to our colonies in commissioners, 18 & 19 Vict. c. 119. general. As to the apprehension of As to ascertaining the latv in, or offenders in the colonies escaping into pleaded within, any of her Majesty's the United Kingdom, and vice versa, dominions, 22 & 23 Vict. c. 63; 24 6 & 7 Vict. c. 34. As to admission & 25 Vict. c. 11. As to the trial in certain cases of unsworn testi- of a felonious poisoning, out of the many in colonial courts, 6 & 7 Vict. limits of the colony in tphich death c. 22. As to letters-patent ir the occurs, 23 & 24 Vict. c. 122. As to colonies, 9 & 10 Vict. c. 91. As to issuing writs of habeas corpus to the the jurisdiction of the admiralty in colonies, 25 & 26 Vict. c. 20. the colonies, 12 & 13 VLct. c. 96; S. IV.] COUNTRIES SUBJECT TO THE LAAVS OF ENGLAND. Ill race, and notwitlistaiicling tlie peculiar fi-eedom of her own institutions, and the pure form of Chnstiauity which she professes, the mother country had never hesitated to lend her sanction to that iniquitous method of cultivation (wz). Yet among all the nations involved in the guOt of slaveiy, she alone has now passed a law for its abolition, and imder circumstances which can leave no doubt that the measiu'e is really due to the force of her moral principles. The conscience of the British public was first awakened to the atrocity of the traffic by Avhich the plantations were conti- nually supplied with new victims from the coast of Africa ; and at a later period to the nature of the colonial bondage itself, which was shown to exceed even the servile system of Pagan Rome in severity, and to be without parallel in the history of human oppression {n). The trade, after a long and obstinate opposition from the parties interested, was abolished ~iii' 1 807 (o) — and after another protracted interval, diiring which the duty of ameliorating the con- dition of the negroes in the colonies was confided (but in vain) to the local legislatui-e, the imperial parliament at length resolved to put an end, from 1st August, 1834, to the system of slavery itself — -R^ich was can-ied into effect by an Act passed in 1833 (p). To justify this measure, however, it was thought necessary to award to the slave proprietors the smn of twenty millions sterling, in compen- sation for the loss of service sustained, — and also to inter- pose a certain period of probation during which the slaves, (m) Several of our statutes gave West India Colonies delineated," sanction to this system, as already by the late James Stephen, Esq. established by the local laws of the 1824. colonies (see Forbes v. Lord Coch- (o) 47 Geo. 3, st. 1, c. 36. The rane, 2 Barn. & Cress. 4G9) ; yet foreign slave trade, viz. the supply the condition of slavery has been of foreign countries with slaves, was long pronounced by our courts to abolished in 1806, by stat. 46 Geo. be repugnant to the genius of the 3, c. 52 ; and the supply of our own municipal law of England ; see the conquered colonies had been pre- case just cited, and the case of So- viously forbidden by order in coun- mersett, 11 St. Tr. 340; Lofft. 1. cil in 1805. (n) See "Slavery of the British (;;) 3 & 4 Will. 4, c. 73. 112 INTRODUCTION. instead of passing suddenlj into absolute libeii-y, should be considered as apprentices, and held in that qualified species of subjection to their former masters. But in the result, the masters themselves found it expedient to aban- don the system of apprenticeship before the prescribed time had expired ; and, by acts of their own legislatm-e throughout the different colonies, admitted their appren- tices into the state of piu*e freedom at a period somcAvhat earlier than they would otherwise have been entitled to its enjoyment {q). Our possessions in India are also entitled, fi'om their superior extent and importance, to specific notice. In 1708 two rival associations existed in England for the J^ur- poses of East India traffic ; but in that year they were consolidated into one by Act of Parliament (r), Avith an ex- clusive privilege of trading to the East Indies aud_other specified places (5); — a privilege afterwards renewed by many successive grants. This body was originally incor- porated by the name of " The United Company of Mer- chants of England trading to the East Indies," but convenience attached to them the shorter appellation of " The East India Company," which afterwards became by express provision their proper legal style (t). In the pro- gress of their well-knoA\ai histor}^, they crushed upon the Indian peninsula the power of the rival settlers from France ; and though first instituted for purposes merely {q) Besides the'Acts above cited, c. 5, c, 16, c. 82 ; 1 & 2 Vict, c, 3, see 5 Geo. 4, c. 113, s. 9; 7 Will. c. 19; 4 & 5 Vict. c. 18, as to slave 4& l\ict. c. 91, for making the slave compensation and slavery: 16 & 17 trade piracy : 5 Geo. 4, c. 113; 9 Vict. c. 86, to remove doubts as to the Geo. 4, c. 84 ; 11 Geo. 4 & 1 Will. 4, rights of liberated Africans in Sierra c. 55 ; 3 & 4 Will. 4, c. 72 ; 5 & 6 Leone : 25 &c 26 Vict. c. 40 (amended Will. 4, c. 60, c. 61 ; 6 & 7 Will. 4, by c. 90), to carry into effect the C. 81 ; 7 Will. 4 & 1 Vict. c. 62; treaty between her Majesty and the 1 & 2 Vict. c. 39, c. 40, c. 41, c. 47, United Stales of America, for the c. 83, c. 84, c. 102; 2 & 3 Vict. c. suppression of the /African slave trade. 57, c 73; 6 & 7 Vict. c. 50, c. 98 ; (r) 6 Ann. c. 17, s. 13. 7 & 8 Vict. c. 26 ; 16 & 17 Vict. c. (s) 6 Ann. c. 17, and 9 & 10 Will. 16, c. 17 ; 18 & 19 Vict. c. 85, for 3, c. 44, s. 81. farther provisions as to slave trade : (<) 3 & 4 Will. 4, c. 85, s. 111. 5 Si 6 Will. 4, c. 45 ; 6 & 7 Will. 4, S.IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 113 commercial, their policy, as administered by the gOA-emors whom they sent out, gradually led to the acquisition of immense territorial dominions, by which they became ef- fectively (though subject to the undoubted supremacy of the British cro^mi (u) ) the sovereigns of India (a:). The unexampled grandeur of this company rendered the regu- lation of its affairs, for a long period of our history, an object of the highest interest and importance to the British nation. In consequence of the prevalence of great abuses, its constitution was newly arranged in 1773 by an act of parhament(?/), prescribing the manner in which its Direc- tors Should be chosen fi-om among its members, and the quahfication which shoidd entitle a member to vote in its affairs (z). In 1784 its administration of the East was brought imder the superintendence of the executive go- vernment at home, by the estabhshment of the Board of Coramissioners for the Affairs of India, which operated as a check upon the Directors, and was afterwards generally called the "Board of Contx'ol"(M). Still however its com- mercial monopoly remained entire; but in 1813 it was provided by the act (5) then passed for the temporary re- newal of the company's charter, that the trade from all places except China, and in all commodities except tea, should be tlu'own open (vmder certain restrictions and h- mitations) to every subject of the realm. And this proved but the prelude to a still more important change, for the expediency being at length generally recognized of ad- mitting the capital of our private merchants to a free par- ticipation in every branch of the Indian traffic, an aiTange- ment was accordingly made mth the company for that purpose in 1832. This was carried into effect by the (m) See preamble to 53 Geo. 3, (;/) 13 Geo. 3, c. 63, explained and c. 155. amended by 21 Geo. 3, c. 70. {x) 7 Geo. 3, c. 57. See Gibson v. (z) 13 Geo. 3, c. 63, s. 5. East India Company, 5 Bing. N. C. (o) 24 Geo. 3, c. 25, and see 272; Mayor of Lyons v. East India 26 Geo. 3, c. 16, and 23 Geo. 3, c. 52. Company, 1 Moore, Priv. Counc. (?') 53 Geo. 3, c. 155, s. 7. Rep. 374. VOL. I. I 114 INTRODUCTION. statute 3 & 4 Will. IV. c. 85 1 under which suc h ex - clusiA'C rights of trading as the company still r etained wefe~a]5oEshed, and they were debarred fro m e ng aging for the future, in commercial transactions (c). And though the territories and other property in their pos- session, wdth the exception of St. Helena (which was by the same statute vested in the crown), were allowed to remain imder the government of the company, this was declared to be " in trust" only " for his majesty, his heirs and successors, and for the sei-vice of the go- vernment of India (c?)." And by the same act it was provided, that it should be lawfrd for his jnajesty to nomi- nate " commissioners for the affairs of India," to whom all former enactments relative to the Board of Control should in general be apphcable, and without Avhose sanc- tion no orders or despatches whatever should be sent out by The board of Directors (e). As for the local go- vernment of India, it was committed to a governor-general and a board of councillors, who, under the style of " The Governor-General of India in Coimcil" (/), were invested with a superintending authority over aU the local govern- ments called Presidencies, in all points relating to their civil and military administration (g) ; and with power to make laws for aU persons, Avhether British or native, throughout the whole of the territories, and for all servants of the company within the dominions of allied states (A); subject however to a power in the Coiu't of Directors (act- ing imder the control In the act provided), to disallow any law so made (i) ; and also subject to the superintending and paramomit authority of the imperial parhament (J). The ecclesiastical establishment of India was also remo- delled by the same act of 3 & 4 Will. IV. c. 85, and it made pro\asion for foimding two bishoprics — those of (e) 3 & 4 Will. 4, c. 85, s. 3. (g) Sect. 65. {(I) Sects. 1, 2, (h) Sect. 43. (e) Sect. 30. (/) Sect. 44. (/) Sect. 39. ij) Sect. 81. S.IV.] COUNTRIES SUBJECT TO THE LAWS OF EXGLAXD. 115 Madras and Bombay — in addition to the diocese of Cal- cutta, already established in accordance with the provi- sions of a former statute (A). The Bishop of Calcutta, however, Avas declared to be the metropolitan bishop in India, \\dth such jtodsdiction and fimctions as the sovereign by letters-patent sliould direct, suljject nevertheless to the general superintendence and re\dsion of the Archbishop of Canterbmy (Z). By the same statute the territories of India were to continue under the government of the East India Company imtil 30th April, 1854, but before the arrival oTthat time it was provided by another statute (16 & 17 Vict. c. 95) that even after that time these territories should so continue, until parliament should otherwise pro- vide. Such new provision, however, was in fact shortly afterwards made, and it was hastened by circumstances of an imexpected and disastrous kind. The Sepoy soldieiy in India, having been led early in 1857 to entertain the belief that government was about to compel them in the course of their military duty to bite cartridges greased mth the fat of certain animals (an act abhon-ent from the Hindoo superstition, and fatal to caste), broke out into open mutiny, which soon ripened into an extensive rebel- hon of the natives in general against the British poAver, in the course of which many fearful atrocities Avere com- mitted by them, and which Avas not suppressed tiU the close of 1858. Under these circumstances it appeared to parhament in the course of that year that a time had now arrived at which, for the more effectual administration of affairs, it was expedient that the croAATi shoidd take to it- self the sole and unqualified dominion OA^er India ; and by 21 & 22 Vict. c. 106 (intitided An Act for the better Government of India) it Avas accordingly pro\ ided that all powers and rights vested in the East India Company in trust for her Majesty should cease, and should become vested in her3lajesty and be exercised in her name ; and conform- {k) 58 Geo. 3, c. 15). See also the Actsreferred to, sup. p< (0 3 & 4 Will. 4, c. 85, s. 94. 10,3, n. (y). i2 116 INTRODUCTION. ably to this, tlie act was soon aftcnvards folloAYed bj a proclamation of the Queen in council to the princes, chiefs and people of India, in which, under the description of " Queen of the United Kingdom of Great Britain and " Ireland and of the Colonies and Dependencies thereof " in Europe, Asia, America and Australasia," she claimed their allegiance. This act contains — besides the estabhshment of its general principle ^m), and the determination of the functions and powers theretofore vested in the Court of Directors and Court of Proprietors in relation to the government of India (w), and the abolition of the Board of Control (o), and the pro\asion that all persons who then held offices, emplopnents or commissions, under the company in India, should thenceforth be deemed to hold them under her Majesty and be paid out of the revenues of India (/?) — a variety of enactments as to the manner in which the business to be transacted lq this coimtry, in relation to the Indian government, and the con-espondence there^rith, shoidd in futvu-e be conducted (q). But of these om- limits enable us to say no more, than that such business and cor- respondence are to be conducted by a principal secretaiy of state m coimcil (r) ; and that such council, (of which he is to be president, with a power liimself to vote (s),) is to con- sist of fifteen members imder the style of the " Coimcil of India," by way of distinction from the council of the governor-general ah-eady established in India {t) ; and that the members of the council of India are to be salaried (u), and are to hold office dimng good beha\iour (a;), but are not to be capable of sitting or voting in parhament (?/), or of acting as coimcillors at any meeting where less than five members shall be present (z). It will be expedient, (m) 21 & 22 Vict. c. 106, s. 1. {s) Sect. 21. (n) Sect. 60. (t) Sect. 7. (o) Sect. 61. («) Sect. 13. (p) Sect. 58. (.r) Sect. 11. (q) Sect. 19. (y) Sect. 12. (r) Sects. 3, 21. {z) Sect. 22. S. lY.] COUNTRIES SUBJECT TO THE LAWS OF ENGL.VND. 117 however, to mention another of the enactments of this statute, namely, that all acts and provisions then in force, imder charter or otherwise concerning India, should, sub- ject to the provisions of the statute, continue in force ; and be construed as referring to the secretary of state in council in lieu of the company and the court of directors and court of proprietors thereof (a). (a) 21 & 22 Vict. c. 106, s. 64, Among the statutes relating to In- dia which were prior to 21 & 22 Vict. c. 106, are those referred to at foot of pp. 113 — 115, supra, and the following. As to administration of justice in India, 37 Geo. 3, c. 142 ; 39 & 40 Geo. 3, c. 79 ; 4 Geo. 4, c. 71 ; 6 Geo, 4, c. 85 ; 7 Geo. 4, c. 37 ; 9 Geo. 4, c. 74 ; 2 & 3 Vict, c. 34. As to trade with India and China, 3 & 4 Will. 4, c. 93 ; 3 & 4 Vict. c. 56; 6 & 7 Vict. c. 80; 16 & 17 Vict. c. ]07, ss. 327, 329 ; 17 & 18 Vict. c. 104, s. 108. As to the appointnieni and powers of directors, the distribution and ar- rangement of the presidencies, the powers of the governor-general and the constitution of his council, and the age, qualifications and appoint- ment of persons destined to the civil or military service of the company, 5 & 6 Will. 4, c. 52; 16 & 17 Vict. cc. 95, 107 i 17 & 18 Vict. c. 77. As to natives of India found destitute in this country, 18 & 19 Vict. c. 91, s. 22. As to punishing mutiny in the service of the East India Company, &c., 20 & 21 Vict. c. 66. The statutes relating to India and China which have passed since the 21 & 22 Vict. c. 106, are the follow- ing : — (As to some of which it is observable, that, in addition to the fundamental changes made by the 21 & 22 Vict. c. 106, as to the rela- tions of India to the mother country, they make others scarcely less im- portant as to the internal constitu- tion and local government of India.) As to raising money in the united kingdom for the service of the go- vernment of India, 22 Vict. c. 11. As to the chief superintendent in China, 22 & 23 Vict. c. 9 ; 22 & 23 Vict. c. 39 ; 23 Vict. c. 5, s. 3 ; 23 & 24 Vict. c. 130 ; 24 & 25 Vict. cc. 25, 118, As to European forces in India, 22 & 23 Vict. c. 27 (amended by 23 & 24 Vict. c. 100). As to amending the Act for the better government of India, 22 & 23 Vict. c. 41. As to regulating probate and administration with respect to cer- tain Indian government securities, and respecting certain stamp duties, 23 Vict. c. 5. Removing doubts as to the authority of senior member of council of India, in the absence of the president, 23 & 24 Vict, c, 87. Extending certain provisions for Admiralty jurisdiction in the colo- nies, to India, c. 88. Making fur- ther provisions as to superannuation allowances as regards India, c. 89. Providing for the management of India stock, and of the debt and ob- ligations of the government of India, c. 102 ; and 25 & 26 Vict. c. 7. Confirming certain appointments in India, and amending the law con- cerning the civil service there, 24 & 25 Vict, c, 54. Making better pro- 1 3 118 INTKODUCTIOX. AVe liave now noticed sucli several parts of the domi- nions of the crown of Great Britain as are not Avitliin the full and proper jm'isdiction of the Enghsh laws. [As to any foreign dominions which may] happen in the course oT events to [belong to the person of the sove- reign by hereditary descent, by pm-chase or other acquisi- tion — as these do not in anywise appertaTn to the crowu of these kingdoms, they are entirely unconnected Avith the laws oT^ngland, and do not communicate vniR this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly residted from dominions on the continent of Europe ; from the Xorman territory which WiUiam the Conqueror brought mth him, and held in conjimction with the English tlirone; and fr'om Anjou, and its appendages, which fell to Henry the second by hereditary descent. They had seen the nation engaged, for near fom* himdred years together, in ruinous wars for defence of tliese foreign dominions, till, happily for this country, they were lost under the reign of Henry the sixth. They observed, that, from that time, the maritime interests of England were better imderstood and more closely pursued ; that, in con- sequence of this attention, the nation, as soon as she had rested fr-om her civil wars, began at this period to flourish all at once, and became much more considerable in Eiu'ope than when her princes were possessed of a larger territory, and her councils distracted by foreign mterests. This experience and these considerations gave birth to a con- ditional clause in the Act of Settlement, which vested the vision for the constitution of the Majesty's general forces, of persons council of the governor-general of transferred from her Indian forces, India, and for the local government c. 74. As to the pensions, &c. of of the several presidencies and pro- those who have served in her Ma- vinces of India, and for the tem- jesty's forces in India, c. 89, and porary government of India, in the 2.5 & 26 Vict. c. 27. As to esta- event of a vacancy in the o.fice of hlishing high courts of judicature in governor-general, 24 & 25 Vict. c. India, 24 & 25 Vict. c. 104. 67. As to the enlistment in her S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 119 [crown iu her present majesty's illustrious house (c), " that " in case the crown and imperial dignity of this realm shall " hereafter come to any person not being a native of this " kingdom of England, this nation shall not be obliged to " engage in any war for the defence of any dominions or " teiTitories wliich do not belong to the crown of England, " without consent of parliament." We come now to consider th e kingd om of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing Commen- taries. And this comprehends not onjy Wales and Ber- wick, of which enough has been akeady said {d), but_also part of the sea. The main or high seas are part of the realm of England, for thereon oiu' courts of admhalty have jurisdiction, as ^^^ll be shoAvn hereafter ; but they are not subject to the common law (e). This main sea begins at the low- water-mark. But between the high- water-mark and the low- water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction ; one upon the water, when it is fiill sea, the other upon the land, when it is an ebb {f). The^ territory of England is lia ble to t wo divisions ; the one ecclesiastical, the other civil {g). I. The ecclesiastical division is, primarily, into two pro\'inces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction (Ji). Each province contains divers dioceses (i), or sees of suffra- (c) Stat. 12 & 13 Will. 3, c. 2. c. i. {d) Vide sup. pp. 85, 88,93. (f) "Bishoprics or dioceses are (e) Co. Litt. 260. almost as antient as the introdnction (/) Finch, L. 78 ; Constable's of Christianity. Of those now ex- case, 5 Rep. 107 a. tant, all, (excepting seven,) were (g) As to the territorial divisions formed in Saxon or in British times, of England, some valuable informa- Of the excepted seven, five were tion will be found in the preface to created by Henry the eighth out of the Population Abstract of 1831, a portion of the confiscated property vol. i. p. xiv. of the suppressed religious houses." (/i) See further as to archbishops Report on Religious Worship, p. and bishops, post, bk. iv. pt. ii. xxxvii. I i 120 INTRODUCTION. [gan bishops (k) ;] the whole number of. whlcli, including the bishopric of the Isle of Man (I), is at present twenty- six (m). Every diocese £is^ divided into archdeaconries, each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter (;<) ;] andjeye ry rural deanery is divided into J3arislies (o). [A pai-ish is that circuit of ground which is committed to the charge of one parson, or \acar, or other minister having cure of soids therein {p). How antient the division of parishes is, may at present be difficult to ascertain ; for it seems to be agreed on all hands, that, i n the early ages of Christianity in this island, parishes were^unknovm (5'), (k) As to the term " suffragan bishops," \ide post, vol. iii. p. 12 11. (m). (I) The bishopric of Man or Sodor, (or Sodor and Man,) was formerly within the province of Canterbury, but was annexed to that of York, by statute 33 Hen. 8, c. 31. See 4 Inst. p. 285. (m) Twoof these bishoprics, (those of Ripon and Manchester,) have been created in pursuance of the Reports of " the Ecclesiastical Commis- sioners for England." (See as to Manchester, 10 & 11 Vict. c. 108; 13 & 14 Vict. c. 41 ; 23 & 24 Vict. c. 69.) And in pursuance of the recommendations of these commis- sioners, and of the statutes founded thereon, orders in council have been at various times issued regulating the episcopal incomes, and making new arrangements with respect to dioceses, archdeaconries and rural deaneries. (See as to the Ecclesi- astical Commissioners, post, vol. iii. p. 117.) (w) As to archdeacons, vide post, vol. III. p. 18. As to rural deans, ib. p. 19. (o) Co. Litt. 94. The number of parishes and population of each diocese in 1831 are given in the Population Abstract of that year, (vol. i. p. xix.) (p) " Parochia est locus in quo degit populus alicujus ecclesies." — 5 Rep. 67 a, Jeffery's case. (See Sharpley V. Overseers of Maplethorpe, 3 Ell. & Bl. 906.) It is stated in the Population Abstract of 1831, (vol.i. p. xviii.) that the number of parishes and parochial chapelries at that period in England and Wales might, for any general purpose, be safely taken at 10,700. (q) " Parochial divisions, as they " now exist, did not take place, at " least in some countries, till several " centuries after the establishment " of Christianity." — Hallam's Mid- dle Ages, vol. ii. p. 205, 7th ed. — where it is fartlier observed, that though Muratori and Fleury have referred the origin of parishes to tlie fourth century, this must be limited to the most populous parts of the empire. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 121 [or at least signified the same that a diocese does now (r). There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to co ntrib ute his tithes to whatever jpriest or church he pleased, grovjded only that he did it to some; or if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious purposes, according to his own discretion (s). Mr. Camden (t) says, England was di^dded into parishes by Archbishop Honorius, about the year 636. Sir Henry Hobart {u) lays it doAvn, that parishes were first erected by the coimcil of Lateran, which was held a.d. 1179. Each A^adely diflei'ing from the other, and both of them perhaps from the truth ; which will probably be found in the medium between the two extremes. For Mr. Selden has clearly shown (.r) that the clergy lived in common, with- out any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran to Avhich they are ascribed by Hobart. We find the distinction of parishes, nay even of mother- chiu'ches, so early as in the laws of King Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary ; that is, every man paid his own, (as was before observed,) to what church or parish he pleased. But this being liable to be attended ^\i\\\ either (r) " When the dioichia, or the {s) Seld. of Tith. 9, 4 ; 2 Inst. '' district over which the bisliop ex- 646; Slade v. Drake, Hob. 296. As " ercised his spiritual functions, was to the modern law of tithes, see " divided into lesser portions for 6 & 7 Will. 4, c. 71, et post, bk. iv. " the superintendence of his clergy, pt. ii. c. in. " a word of similar import was {t) See Camden's Britannia, vol. " adopted, paroichia. And in an- i. p. ccxxviii. " tient times, Mr. Selden thinks (u) Slade v. Drake, ubi sup. And " the words were used indiscrimi- see Bishop of Winchester's case, 2 " nately." — Chitty's Blackstone, Rep. 44 b. vol. i. p. 106, n. ; and see 3 Burn, (x) Seld. of Tithes, c. 9. Ec. L. 60, 7th ed. i5 122 INTKODUCTION. [fraud, or at least caprice, in the persons paying ; and with either jealousies or mean compliances in such as were com- petitors for receiving them ; it was now ordered by the law of King Edgar (y), that '* c[entur~omnes decimcB pri- maries eccleske ad qucun parochia pertinet.^^ However, if aii^thane, or great lord, had a church, within his oa\ti demesnes^ distinct from the mother-church, in the nature of a private chapel ; then, provided such church had a cemetery^ or consecrated place of burial belonging to it, he might allot one-third of his tithes for the maintenance of the officiating minister : but if it had no cemetery, the thane must himself have maintained his chaplain by some other means ; for in such case all his tithes were ordained to be paid to the primaria ecclesia or mother church [z). This proves that the kingdom was then generally divided into parishes, which division happened probably not all at once, but by degrees. And it seems pretty clear and cer- tain, that the boundaries of parishes were originally as- certained by those of a manor or manors ; since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon tlieir oa\ti demesnes or wastes, to accommodate their tenants in one or two adjoining lord- ships ; and, in order to have divine serAace regularlyjjer- fo rmed there in, obliged all their tenants to appropriate their tithes to the maintenance of the one officiatinp; _ , . ■ . ^ O minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general ; and this ti'act of land, the tithes Avhereof were so appropriated, formed a distinct parish, — which will well enough accoimt for the frequent Intermixture of parishes one A^dth another. For if a lord had a parcel of land detached fi'om the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly-erected church (y) C. 1. King- Canute, c. 11, about the year (0 C. 2. See also the Laws of 1030. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 123 [with the tithes of those disjointed lands, especially if no church was then built in any lordship adjoining to those outlying parcels. Thus parishes were gradually formed, and parish chui'ches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of in-eligious and careless owners, or w^ere situate m forest and desert places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extra-parochial ; and their tithes are now by immemoriaj custom payable to the king, instead of the bishop, in trust and confidence that he will distribute them for the general good of the Church («),] As a parish is an ecclesiastical division, so the persons Avho bear the chief authority in a parish, as such, viz. the rector, (or vicar, or perpetual curate,) and churchwardens, are also of an ecclesiastical character: and the natnre of their offices and duties is a subject that consequently belongs not to the present place, but to that division of the Avork in which we shall have occasion to treat of the law of the Church (Z>). It is material, however, to ob- serve, here, both as to parishes and parochial officers, that though primarily and properly they have relation to eccle- siastical purposes, yet there are some secular aspects in which they also require to be considered. For there has been a gradual tendency, more pai'ticidarly in modern times, to treat a parish as a civil, not less than an eccle- siastical di^dsion. Thus the collection of the poor-rate, or flmd for the relief of the poor, and in a general point of view, its application also, is parochial ; and the case is the (a) 2 Inst, 647 ; Bishop of Win- ligious houses or antient castles. Chester's case, 2 Rep. 44; Wright (Vol. i. p. xxii.) See 20 Vict. c. 19, V. Wright, Cro. Eliz. 512. In the an Act to provide for the relief Population Abstract of 1831 more of the poor and other purposes in than two hundred extra-parochial extra-parochial places. And as to places are mentioned, and it is stated the repair of the highways in such that they arc usually found to have places, 25 & 26 Vict. c. 61, s. 32. been the site of royal palaces, *€- (6) Vide post, bk. iv. pt. ii. . ' "^ ^ '" "' I 6 124 INTRODrCTION. same with respect to several other species of local taxa- tion (c). The affairs of a parish, as such, (whether civil or ecclesiastical,) are regulated in vestry, which is, ]3ro- perlj spealong, an assembly of the minister, church- wardens, and parishioners, ( viz. panshione rs contributing to public burdens id) ;) and Avhich, fi*om being commonly- held in the vestry adjoining or belonging to the church, takes its name from thence, as the place itself does from the priest's vestures, which are usually deposited there (e). The vestr}^is summoned, or called together, by the church- Avardens, with the consent of the minister (^) ; who has been generally considered^ as entitled, when present, to preside at the meeting {g) : and its principal rights and duties are those of investigating and controlling the expenditure of the parochial frmds, and electing certain of the parochial officers, though there are various other matters in which it jjossesses an authority (Ji). We here speak of its original character at common law : but its nature is liable to modi- fication in particular places by force of special custom or enactment (i) ; and is regulated besides by the general Vestry Act7 58 Geo. III. c. 69 (j),— amended by 59 Geo. III. (c) See 23 & 24 Vict. c. 51, pro- shall be provided within the parish, viding for an annual return of taxes, And by 24 & 25 Vict. c. 125, pro- rates, toll and dues levied for local visions are made for the purchase purposes ; in which, however, the by the overseers with the consent ^oor's-ra. Clcrkenwell, 1 Ad. & Ell. Poor Law Board; but that the same 317. shall be held in such other room as {j) Known as "Sturges Bourne's S.IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 125 c. 85, and by 16 & 17 Vict. c. ^5. B y these statutes (w EicIi extend uot however to the city of London or Soiithwark) a vestry is not to be summoned except on three days' notice (A) ; and when it meets, a chairman is to be appointed, imless the rector, vicar, or perpetual curate, is present ; and the chairman shall have the cast- ing vote, and sign the minutes of the proceedings. They also contain pro\asions as to the right of voting ; which is adjusted upon a certain scale, having relation to the amoimt in which the voter is assessed to the rehef of the poor(Z). The constitution of vestries is moreover in some places regulated by 1 & 2 WiU. IV. c . 60 (m) ; which pro- vides for the election by the rate payeis, of a certain number of vestrjTnen and auditors, luider whose management the parochial accounts are to be kept and audited {n). This statute has no apphcation, however, to parishes not form- ing part of a city or toAvn, and not having more than 800 rate payers : and the adoption of its aiTangements is in no case compulsory : no parish being subject to them unless it voluntaiily consents to place itself mider the Act. There is a statute also of 59 Geo. III. c. 12, which empowers parishes to establish vestries of a certain description for the management of the poor ; and, as far as their rehef is concerned, the bodies so appointed supersede the authority of the ordinary parish officers : though they are themselves, on the other hand, by a subsequent enactment, made subject to the control of the Poor Law Board (o). Act." See Reg. v. D'Oyhj, 12 A. E. 157. & E. 139. (") R. V. St. Pancras Trustees, 5 (/f ) By 7 Will. 4 & 1 Vict. c. 45, Nev. & M. 219 ; R. i;. Vestry of St. the notice for calling a vestry is to Mary-le-bone, 5 Ad. & El. 2G8. By be affixed on or near the church 18 & 19 Vict. c. 120, s. 1, the stat. door, without any publication (as 1 & 2 Will. 4, c. 60, is repealed as to formerly) in the parish church. the metropolis ; and vestries of a new (l) As to voters in arrear of rates, constitution created there, see 16 & 17 Vict. c. 65. As to the (o) See 4 & 5 Will. 4, c. 76, ss. manner of voting, see R. v. Rector 21, 54; 10 & 11 Vict. c. 109, s. 10 ; of Birmingham, 7 Ad. & El. 254, Queen v. Green and others, 21 L. J, (m) Known as "Sir J. Hobhouse's (M. C.) 137. See also 13 & 14 Vict. Act." See Reg. v. Hetlger, 12 A. & c. 57, enabling the Poor Law Board, \i 126 INTEODUCTIOX. On the sulyect of parishes it oiilj remains to be ob- served, that, by certain Acts lately passed for extending church accommodation, and making more eflfectual _pro- vision for the ciu'c of sovils (n), — it is proAaded^ Tliat by such authorities and under such circumstances, and Avith such consents, as therein specified, any part or parts of any parish may be constituted a separate district (o), for spiri- tual piui^oses ; and that any parish may also be di^aded into two or more distinct and separate parishes, for all ecclesiastical purposes whatsoever (p). In pursuance of which pro^nsions many such new constitutions and di\a- sions have, for pm-poses of that description, accordingly taken place (g). And thus much for the ecclesiastical di\asion of this kingdom. II. [The ci\al division of the temtor^^ of England is into counties, of those comities into hundreds, of those him- upon application of the church- wardens, pursuant to a resolution of vestry, in any parish where the population exceeds 2000 by the then last census, to make an order for the appointment of a paid vestry clerk, whose duties the act defines. («) The most important of these statutes are 58 Geo. 3, c. 45 ; 59 Geo. 3, c. 134; 6 & 7 Will. 4, c. 77; 3 & 4 Vict. c. 113 ; 6 & 7 Vict. c. 37; 7 & 8 Vict. c. 94; 19 & 20 Vict. CO. 55, 104. (See also as to division into separate benefices, 1 & 2 Vict. c. 106, s. 16; 2 & -3 Vict. c. 49, s. 6.) A further account of these statutes will be found post, bk. iv. pt. II. c. IV. (o) See 6 & 7 Vict. c. 37, s. 10 ; 7 &; 8 Vict. c. 56, s. 6, as to the re- gistration of a map or plan of the boundaries of districts formed under these Acts. (p) Some of the Acts also au- thorized the establishment, within these divisions, of a species of select vestry for ecclesiastical purposes (see 59 Geo. 3, c. 131, s. 30; 3 Geo. 4, c. 72, s. 10). But the select vestries authorized by these Acts are abo- lished by 14 & 15 Vict. c. 97, s. 23. (q) With respect to parishes, it may be proper also to notice the useful provisions of certain late sta- tutes (see 2 & 3 Vict. c. 62, ss. 34 — 36; 3 & 4 Vict. c. 15, s. 28; 8 & 9 Vict. c. 118, s. 39; and 12 & 13 Vict. c. 83) for adjusting {prospec- tively, see R. V. Madeley, 15 Q. R. 43) the antient boundaries between parishes and townships, or defining new boundaries. There is also the Stat. 5 &. & Vict. c. 18, authorizing the sale of parish property and pay- ing parish debts out of the poor rate. The 19 & 20 Vict. c. 50, enabling parishioners, &c. to sell advowsons held by or in trust for them ; and the 23 & 24 Vict. c. 30, enabling two-thirds of the ratepayers of a parish to make rates for maintain- ing public walks, &c therein. S.IV,] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 127 [dreds into titlnngs or to\\Tis(r).] This di\*ision is of remote and imdefined ^ntiquitj ; and was not peculiar to England, [similar distributions ha^dng been in use among several nations of the continent (s). As to the tithings, thej were so called, from the Saxon, because ten free- hoI3[ers~witIi their families composed one. These all dwelt together, and were sureties or free pledges to the king, for the good behavioiu' of each other ; and if any offence was committed in their district, they were bound to hare the offender forthcoming (t). And therefore antiently no man was suffered to abide in England, above forty days, unless he were enrolled in some tithing or de- cennary' (m). One of the pnncipal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithingman, the headborough, (words which speak their~own et}-mology,) and in some coimties, the borsholder, or borough's-ealder (a;), being supposed the discreetest man in the borough, town, or tithing. Tithings, towns, or vills, are of the same signification in law ; and are said to have had, each of them, originally a chiu'ch and celebration of divine service, sacraments and burials (y): though that seems to be rather an ecclesiastical (r) A general survey of Great " obscure, to his contrivance, till his Britain, Berwick, and the Isle of " fame has become almost as fabu- Man was authorized by 4 & 5 Vict. " lousin legislation as that of Arthur c. 60, an Act continued by 24 & " in arms." — Ibid. 402 ; et vide Co. 25 Vict. c. Q5 till December, 1866. Litt. by Harg. 168 a, n. (6). (s) Hallam's Middle Ages, vol. ii. («) Flet. 1, 47. This in the Laws p. 389, 7th edit. The division has of King Edward the Confessor, c. been ascribed to Alfred, but Mr. 20, is very justly entitled " suwOTa ef Hallam questions his claim to the '' maxima securitas, per quam omnes distinction, and observes that coun- " statu firmissimo stistinentur ; — qucr. ties are mentioned in the Laws of " hoc modofiebat, quod sub decennali Ina. " It is not surprising," he " fidejussione debebavi esse universi, afterwards remarks, " that the g^eat " <^c." " services of Alfred to his people in {u) Mirr. c. 1, s. 3. " peace and in war should have led {x) Jac. Diet. v. Headborough. " posterity to ascribe every institu- {y) Co, Litt. 115 b. " tion, of which the beginning was 128 INTRODUCTION. [tlian a civil distinction. The -svord town(z) or vill is in- deed, by the alteration of times and language, now become a generical term,] com j)relien ding imder it several species and varieties. Taken in this sense, towns are distinguished from each other as being either corporate or not corjiorate : the townsmen foiining, in the first kind, a corporation, that is, a society, with certain legal properties and capacities, on the nature of which we shall treat at large in a subse- quent di\asion of these Commentaries; and shall at the same time consider the provisions of the act for regidating municipal coi-porations, {5 &. 6 AVill. IV. c. 76,) by the effect of which, all towns of this description are now placed under one imifoi'm plan of internal government (a). There are also market-toAvns, that is, toA\nis which are en- titled to hold markets ; and there are others which have not that franchise. And, lastly, to-v^ms are di\4ded into cities, boroughs, and common towns. The cities of this kingdom are certam towns of principal note and import- ance, all of which either are or have been sees of bishops ; yet there seems to be no necessary connexion between a city and a see (b); and it is certain, that [though the bishopric be dissolved, as at Westminster (c), yet still it remaineth a city (^).] A borough is a city or other town that sends burgesses to parliament (e), a pri\alege the (z) As to the legal meaning of the of Edward the sixth. Elizabeth, by word ''town," see Elliot v. South authority of parliament, turned it Devon Railway Company, 2 Exch. into a collegiate church, subject to a 729 ; Ex parte Incumbent, &c. of dean. — Chitty's Blackstone, vol. i. Brompton, 22 L. J., N. S. (Ch.) 281. p. 109 (n) ; 2 Burn, E. L. 542, 7th (a) As to municipal corporations, edit. ; Co. Litt. by Harg. 109 b, vide post, bk. iv. pt. iii. c. i, n. (3). (b) See 1 Woodd. 302; Jac. (rf) Co. Litt. 109 b. Diet. v. City. (e) 1 Bl. Com. 114; Litt. s. ]fi4; (c) Westminster was one of the Co. Litt. 108 b. See also the Parlia- new bishoprics founded by Henry mentary Reform Act, 2 Will. 4, c. the eighth out of the revenues of the 45, s. 79. The word however was dissolved monasteries, and was made originally used in a more extensive a city by express creation. It was sense, see Co. Litt. by Harg. 108 b, dissolved as a see, and restored to n. (4). In Jacob's Law Dictionary the bishopric of London in the reign the terra "borough" is taken to S, IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 129 nature of which Ave shall more fully explain hereafter, in that 23ai-t of the work which relates to Parliament (/). According to Sir Edward Coke {g), there were in his time, m Englan^and Wales, 880.3 towns, or thereabouts. To several of them [there are small appendages belonging, called hamlets ; which are taken notice of in the statute of Exeter (Ji), wherein frequent mention is made of " entire vills," " demi-\alls," and " hamlets." Entu^e \alls. Sir Henry Spelman (^) conjectures, to have con- sisted of ten fi-eemen or frank-pledges, demi-\alls of five, and hamlets of less than five. These Httle collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers ; in which last case they are, to some piu'pose in law, looked upon as distinct townships. These towns, as was before hinted, contained each originally but one paiish and one tithing ; though many of them now, by the in- crease of inhabitants, are divided into several parishes and tithings ; and, sometimes, w^here there is but one parish there are two or more vills or tithings. _ C5 As ten famihes of fi-eeholders made up a town or tithing, so ten tithings composed a superior division, called a hmi- dred, as consisting of ten times ten famihes. The hundred is governed by a high constable or bailiff; and formerly there was regidarly held in it the himdi-ed court for the trial of causes, though now fallen into disuse (K). In some of the more northern counties these hundreds are called wapentakes (^).] mean a town sending burgesses to {g) Co. Litt. 116 a. Y&rWaxnent and not hei7ig a city. But {li) 14 Edw. 1. see the authorities first cited; also Co. (?) 01088.274. Litt. 109 a. In the Municipal Cor- {Is) As to the hundred court, vide poration Act, 5 &!. 6 Will. 4, c. 76, post, bk. v. c. iv. "borough" is used in a sense pecu- {I) Seld. in Fortesc. c. 24. '^ Et liar to that statute ; and expresses a " quod Angli vacant hundredum, corporate town, whether sending re- " comitatus Yorkshire, Lincolnshire, presentatives to parliament, or not. " Nottinghamshire, Leicestershire, et (/) As to the parliament, vide " Northamptonshire, vacant wapenta- post, bk. IV. pt. I. c. I. " chium." — (Wilk. Leg. Ang. Sax, VOL, I. K 130 INTRODUCTION. As to tlieir origin, vre may remark that liimdreds [seem to have obtained in Denmark (?w); and we find that in France a regulation of this sort was made above two hun- dred years before; set on foot by Clotharius and Chil- debert, with a view of obhging each district to answer for the robberies committed in its own division (w). These divisions were, in that country, as well military as civil, and each contained a hundred freemen, who were subject to an officer called the centenarius ; a numl^ of which centenarii Avere themselves subject to a superior officer called the coimt or comes (o). And indeed, something like this institution of hundreds may be traced J)ack as far as the antient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England: for both the thing and the name, as a teii-itorial assemblage of persons, from which after- wards the territory itself might probably receive its de- nomination, were well known to that warlike people, " Centeni ex singulis pagis sunt, idque ipsum inter suos " vocantur ; et quod primo numerus fuit, jam nomen et honor " est ip)." An indefinite number of these hmidreds make up a county or shfre. Shfre is a Saxon word signifying a di^^- sion ; but a county, comitatus, is plainly derived fr-om comes, the count of the Franks; that is, the earl or alderman, (as the Saxons called him,) of a shfre, to whom the govern- ment of it was entrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English, Ll. Edw. c. 33.) And the passage be observed), the hundred is, by 7 & proceeds to explain why they are 8 Geo. 4, c. 31, and 17 & 18 Vict. c. so called, viz. because the people at 104, s. 477, obliged to compensate a public meeting confirmed their persons damnified by the riotous and union with the governor by touch- tumultuous demolition of churches ing his weapon or lance. — Christian's and certain kinds of buildings and Blackstone, vol.i. p. 115, note; (and machinery, or by plunder of wreck, see Cowell's Diet. v. Wapentake.) (o) Montesq. Sp. L. 30, 17. (»») Seld. Tit. of Honour, 2, 5, 3. (p) Tacit, de INIorib. German. 6. (n) Thus in this country (it may S.IV.] COUNTRIES SUBJECT TO THE LAAVS OF ENGLAND. 131 [the sheriff, shrleve, or shlre-rceve, signifying the officer of the sliire: upon whom, by process of time, the civil administration of it is now totally devolved. In some coimties there is an intermediate division, between the shire and the hundreds, as lathes in Kent and rapes in Sussex iq), each of them containing about three or four hundreds a-piece (r). These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. AA here a county is di^dded into three of these intermediate jurisdictions, they are called trithings (s), wh ich were antiently governed by a trithing-reeve. These trithings stiU subsist in the large county of York, where by an easy corruption they are denominated ridings ; the north, the east, and the west riding. The number of counties in England and Wales have been different at different times ; at present they are forty in England and twelve in Wales (0.] It seems probable that the realm Avas originally divided into counties, Avith a Aaew to the couA^enient administration of justice ; the judicial business of the kingdom having in former times been chiefly dispatched in local courts, held in eachnSrifferent county, before tHe sheriif, as its principal {q) The rapes of Sussex are said Abstract, 1831, vol. i. p. xv.) to have been military governments («) Wilk. Leg. Ang. Sax. LI. EtUv. in the time of the Conqueror ; the c. 34. lathes of Kent to have been civil (/) A particular place, parcel of jurisdictions, and of earlier date. — one county, is sometimes detached (Population Abstract, 1831, vol. i- from it, and surrounded by another. p. XV.) By 7 & 8 Vict. c. 61, these detached (r) For some purposes connected parts are annexed, for all purposes, with magisterial business, counties to the counties of which they form are severed into divisions. (See 9 a part, for the purpose of parlia- Geo. 4, c. 43 ; 10 Geo. 4, c. 46 ; 6 & 7 mentary representation. As to the Will. 4, c. 12 ; and 22 & 23 Vict. jurisdiction of magistrates with re- c. 65.) The number of places in spect to detached parts of counties, England and Wales where petty see 2 & 3 Vict. c. 82, and 21 & 22 sessions or divisional meetings are Vict. c. 68 ; and as to the union of usually held, were lately returned liberties with counties, see 13 & 1 1 as amounting to 609.— (Population Vict. c. 105. k2 132 INTRODUCTION. officer (a-). These antient tribunals, indeed, have long since fallen into great decay, and retain notliing of their fomier consequence ; the important courts lately established imder the name of County Courts, though similar in name, being in fact of a very different character and jurisdic- tionX^). Yet the distnbution into counties is to this day materially connected, (though in a different manner,) with the course of judicial proceedings. For trials of disputed facts are still ordinarily conducted in the county where the cause of action arose, or the offence was committed (z) : viz. before the judges of the superior courts of common law, who take periodical circuits throughout England and Wales for the trial both of civil and criminal cases; or before the county justices of the peace, who exercise a jm'isdiction, in cases of the latter description, at their quarter sessions. Another important object connected vn^th the distribution into counties, is that of parliamentary representation, inasmuch as not only the more important towns of the kingdom, but every county also, sends to the House of Commons its own members, — called knights of the sliire, — Avho represent their respective counties, as the other members do their respective towns ; though by a new arrangement, the larger counties are now subdivided, each portion forming a se^^rate county (so far as this purpjose (.t) Hickes, Thes. Diss. Epist. ; theless, be ordered by the Queen's Reeves's Hist. Eng. L. vol. i. pp. Bench to be there tried, if it shall 6, 7. appear to the latter court, that it is {y) As to these modern County " expedient to the ends of justice" Courts, vide post, vol. iii. p. 395 that this course should be taken, et seq. And the statute 25 & 26 Vict. c. 65, («) By 4 & 5 Will. 4, c. 36, a contains similar provisions in re- new court was established, called ference to persons subject to the the Central Criminal Court, for trial Mutiny Act, charged with having of offences committed in London committed murder or manslaughter and Middlesex, and certain parts of on a person so subject. And these Essex, Kent and Surrey ; pnd by provisions may be considered as by 19 & 20 Vict. 0. 16, persons charged way of exception, to the principle with offences committed out of the stated in the text, jurisdiction of such court may, never- S. IV.] COUNTRIES SUBJECT TO THE LAM^S OP ENGLAND. 133 is concerned), and sending its separate representative (6). For the object of local taxation, too, the diWsion into comities is of practical effect and importance ; for as each parish is subject to a rate for relief of the poor, so is every coiintj to a connty rate, which is levied on the occupiers of land under the authority of various acts ofparhament(c), an^ applied to many miscellaneous purposes (rf). [Three of these counties, Chester, Durham and Lan- caster, are called counties palatine. The two former ai'e such by prescription or immemorial custom ; or at least as old as the Norman conquest (e); the latter was created by King Edward the third, in favoiu- of Henry Plantagenet, first Earl and then Duke of Lancaster (/"); whose heiress being married to Jolin of Gaunt, the king's son, the fi-an- chise was greatly enlarged and confii-med in parhament, to honour John of Gamit himself (^); Avhom, on the death of his father-in-law, the king had also created Duke of Lan- caster (A). Counties palatine are so called a palatio, be- cause the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancaster, had in those counties jura regalia as fidly as the king hath in his palace; regalem potestatem in omnibus, as Bracton ex- presses it (z). They might pardon treasons, murders and felonies; they appointed all judges and justices of the (b) 2 Will. 4, c. 45, ss. 12, 13, 14, mons), with the tables annexed to and see 24 & 25 Vict, c. 112, ss. 1, 7. that Report, Appendix C. Among (c) See 22 Hen. 8, c. 5 ; 12 Geo. the purposes to wliich the rate is 2, c. 29; 55 Geo. 3, c. 51. As to applied, are the maintenance of the borrowing money on mortgage of rural police, lunatic asylums, gaols, county rate in Middlesex, 8 & 9 and bridges. Vict. c. 32. As to the assessment (e) Seld. Tit. Hon. 2, 5, 8. and collection of the county rate (/) Pat. 25 Edw. 3, p.. 1, m. 18 ; generally, 7 & 8 Vict. c. 33 ; 15 & 16 Seld, ibid. ; Sandford's Gen, Hist. Vict. c. 81 ; 21 & 22 Vict. c. 33. 112, 4 Inst. 204. See also 5 & 6 Will. 4, c. 76, s. 92 ; {g) Cart. 36 Edw. 3, n. 9. 17 & 18 Vict. c. 71, as to borough (h) Pat. 51 Edw. 3, m. 33; Case rates in the nature of county rates. of Duchy of Lancaster, Plowd, 2ir>, (d) See Report of County Rate 7 Rym. 138. Commissioners, 16 June, 1836 (i) L. 3, c. 8, s. 4. (printed by order of House of Com- 134 INTRODUCTION. [peace ; all writs and indictments ran in their names, as in other counties in the king's ; and aU offences were said to be done against their peace, and not, as in other places, contra pacem. doniini regis (Ji). And indeed by the antient law, in all peculiar jimsdictions, offences were said to be done against his peace iii whose court they were tried; in a coiu't leet, contra pacem domini ; in the court of a cor- poration, contra pacem hallivorum ; in the sheriff's court or touni, contra pacem vice-comitis(l). These palatine privileges, so similar to the regal independentjiirisdictions usurped by the great barons on the continent during the weak and infant state of the first feodal kingdoms in Europe {m), were m all probabihty originally granted to the counties of Chester and Durham, because thej bor- dered upon inimical comitries, Wales and Scotland; in order that the inhabitants, having justice administered at home, might not be obhged to go ovit of the county, and leave it open to the- enemy's inciu'sions; and that the owners, being encoui*aged by so large an authority, might be the more watclifiil in its defence. And upon this ac- count also there were formerly two other coimties palatine, Pembrokeshire and Hexhamshire (the latter noAV united with Northmnberland), but these were abolished by parha- ment ; the former in the twenty-seventh year of Henry the eighth, the latter in the fourteenth year of Elizabeth. In the twenty-seventh year of Henry the eighth, like^rise, the powers before mentioned of owners of coimties pala- tine were abridged ; the reason for their continuance having in a manner ceased (n).] And within a recent period, many important alterations have taken place in regard to the administration of justice in the counties palatine, tending to assimilate them in that point to the rest of England. For by 11 Geo. IV. & 1 WiU. IV. c. 70, the jurisdiction of the court of session of the county palatine of Chester was abolished, and the county subjected in all (A) 4 Inst 205. . (»«) Robertson, Cha. V. i. 60. (/; SeUl. in Hcng. Magn. c, 2. {u) i Inst. 205. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 135 tilings to tlie jurisdiction of the superior courts at West- minster; and by various statutes of later date, the practice and proceedings in the courts of common pleas and chan- cery of the counties palatine of Lancaster and Durham, are regidated and made conforaiable in general to those of the sujQmor courts just mentioned (o). It is also to be remarked, that of the counties palatine none now rem ains in the hands oT^a^ubject. For [the earldom of Chester, as Camden testifies, Avas united to the crownby Henry the third, and has ever since given title to the king's eldest son;] and the palatine jurisdiction of Durham, which was vested until a recent period in the BisEop~of Durham for the time being, is now taken from him by 6 & 7 WiU. IV. c. 19 (amended by 2r& 22 Vict. c. 45), and vested as a separate fi-anchise and royalty in the ero^Mi. As to the county palatine or duchy of Lan- caster, it [was the property of Henry Bohngbroke, the son of John of Gaunt, at the time when he wrested the crown fi-om King Eicliard the second, and assumed the titleoFKingHenry the fourth. But he was too prudent to suffer this to be rmited to the crown ; lest if he lost one, he should lose the other also. For as Plowden {p) and Sir Edward Coke (5') observe, " he knew he had the duchy " of Lancaster by sure and indefeasible title, but that his " title to the croAvn was not so assured : for that after the " decease of Richard the second the right of the crown " was in the heir of Lionel Duke of Clarence, second son " of Edward the third ; John of Gaunt, father to this " Henry the fourth, being but the fourth son." And therefore he procured an Act of parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, Avith all their royalties and (0) See 4 & 5 Will. 4, c. 62 ; 2 c. 27, s. 10 ; 23 & 24 Vict. c. 38, Vict. c. 16; 13 & 14 Vict. c. 43 ; s. 2; c. 126, ss. 12,40—42; 25 & 26 15 & 16 Vict. c. 76, ss. 229, 230— Viet. c. 42. 234; 17 & 18 Vict. c. 82, c. 125, {p) P. 215. ss. 100, 101 — 104; 18 & 19 Vict. c. (/?) 4 Inst. 205. 15, c. 45, c. 67, s. 8 ; 21 & 22 Vict, K. 4 136 INTRODUCTION. [franchises, should remain to him a nd h is heirs for ej^^r ; and slioidd^rcmainj descend, be administered and gw'^rned in nice manner as if he never had attained the regaHlig- nityT'and thus tEej descended to his son and grandson, Henry the fifth and Henry the sixth : many new tenito- ries and privileges being annexed to the duchy by the former (r). Henry the sixth being attainted in tlie first year of Edward the fom'th, this duchy was declai'cd in parliament to have become forfeited to the crown (s), and at the same time an Act was made to incorporate the duchy of Lancaster, to continue the county palatine — which might otherwise have determmcd by the attainder (t), — and to make the same, parcel of the duchy : and, further, tovest the AA-hole in King Edward the fomlh and his heirs^ Jwiffs of England, for ever ; but imder a separate guiding and governance from the other mheritances of the crown. And in the first year of Henry the seventh, another Act was made to resume such part of the duchy lands, as had been dismembered from it in the reign of Edward the fourth ; and to vest the inheritance of the whole in the king and hisTieirs for ever, as amply and largely, and in like man- ner, form and condition, separate fr'om the crown of Eng- land and possession of the same, as the three Henries and~Edward the fourth, or any of them, had and held the same(^<).] (r) Pari. 2 Hen. 5, n, 30 ; 3 Hen. if this motion were well founded, it 5, n. 15. might have become a very curious (s) Fisher?;. Batten, 1 Ventr. 155. question at the time of the Revolu- {t) 1 Ventr. 1157. tion in 1688, in vyhom theright of the (a) Some have entertained an duchy remained after King James's opinion (see Plowd. 220, 1, 2; Lamb. abdication, and previous to the at- Archeion, 233 ; 4 Inst. 206 ;) that, tainder of the pretended Prince of by this Act, the right of the duchy Wales. But it is observable, that in vested only in the natural nnd not in the same Act, the duchy of Cornwall the political person of King Henry is also vested in King Henry the the seventh, as formerly in that of seventh and his heirs, — which could Henry the fourth ; and was descend- never be intended in any event, to be ible to his natural heirs, independent separated from the inheritance of the of the succession to the crown. And, crown. And indeed it seems to have S. IV.] COUNTEIES SUBJECT TO THE LAWS OF ENGLAND. 137 The isle of Ely was never a county palatine, tliongli sometimes erroneously called so. It was, however, a royal franchi se; th e Bishop of Elj^ having Jbeen for merly enti- tled, by grant of King Henry the first, to jura regalia within^ the distrijct, whereby he^exercis^d a jurisdiction over all causes as well criminal as civil {x). But by 6 & 7 Will. lY. c. 87, this secular authority of the bishop is taken away and vested in the croAvn. [There are also counties corporate, which are certain cities and toAvns, some with more, some with less territory annexed to them ; to which out of special grace and favour the kings of England have granted the privilege to be counties of themselves ; and not to be comprised in any otTier comity ; but to be governed by their oaati sheriffs (?/) and other magistrates, so that no officers of the county at largeTiave any power to intermeddle therein {z).'] As they constitute no part of the counties at large in Avhich they are locally situate, so they had formerly, in general, no share in voting for the members to serve for those counties in parliament (a). But J;liirteeu of the number are now been understood very early after the in order and government, but united statute of Henry the seventh, that in point of inheritance. We may the duchy of Lancaster was by no notice here that by 18 & 19 Vict, means thereby made a separate in- c. 58, the chancellor and council of heritance from the rest of the royal the Duchy of Lancaster are enabled patrimony, since it descended with to sell and purchase land on behalf the crown to the half-blood in the of her Majesty, in right of the instances of Queen Mary and Queen Duchy. Elizabeth ; which it could not have {x) 4 Inst. 220; Grant v. Bagge, done, as the estate of a mere Duke 3 East, 128. of Lancaster, in the common course (y) As to the appointment of of legal descent. The better opinion sheriffs of counties corporate, see therefore seems to be that of those 5 & Q Will. 4, c. 76, s. 61. judges, who held (Plowd. 221), that, (x) Their names are given in notwithstanding the statute of Henry Russell's Reform Act, p. 5 ; and in the sevcntli (which was only an Act the Population Abstract of 1831, of resumption), the duchy still re- vol. i. p. xiv. And see 3 Geo. 1, mained as established by that of c. 15; 5 & 6 Will. 4, c. 76, ss. 61, Edward the fourth, separate from 109. the other possessions of the crown (a) Russell's Reform Act, p. 5. K 5 138 INTRODUCTION. expressly incliulccl witliin their respective counties, so far as regards the right of election for knights of the shire (h). To which we may add, that by 38 Geo. III. c. 52, all causes of action arising and offences committed in a county coi'porate may be tried in the next adjoining county at lar^-e (c) ; a regulation from which certain towns and cities indeed were at first excepted, but almost the Avhole of these exceptions have been since repealed by the Act for regu- lating municipal corporations {d). Tlius much of the countries subject to the laws of Eng- land ; the consideration of which involves, in a general point of view, that of the persons also, to whom these laws are applicable. For all persons found Avithin these terri- tories fall under the operation of these laws, though in different degrees : British subjects— that is, persons born within any pai*t of the dominions of the crown, and in some cases their descendants also, though bom in foreign parts, and persons naturalized by Act of parliament — being in a frill and absolute sense entitled to the rights conferred by these laws, and liable to the obligations they impose ; but aliens (or those who are not British subjects) in a limited sense only, as we shall have occasion more particularly to explain hereafter (e). (b) 2 Will. 4, c. 45, s. 17. cc. 61, 62, 98), the population of (e) See also 14 & 15 Vict. c. 55, England and Wales (including the ss. 19, 21 — 24 ; and c. 100, s. 23. islands in the British seas), enume- {(l) 5 & 6 Will. 4, 0. 76, s. 109. rated on that day, amounted to Some farther provisions as to cottn- 20,205,504; of Scotland, at the same ties corporate are contained in 51 date, 3,061,351 ; and of Ireland, Geo. 3, c. 100; 60 Geo. 3 & 1 Geo. 5,764,543 ;— showing that the aggre- 4, c. 4, s. 6; c. 14, s. 3 ; 7 Geo. 4, gate number of persons then in Great c. 64, s. 25 ; 9 Geo. 4, c. 61 ; 5 Si 6 Britain and Ireland, amounted to Will. 4, c. 76, s. 113; 2 & 3 Vict. 29,031,398. This is exclusive of c. 72; 17 & 18 Vict. c. 35. the army, navy, and merchant sea- (c) Vide post, bk. iv. pt. i. c. ii. men abroad on that day ; the num- It may be remarked here, that by her of whom is estimated, in the the last census, taken on the Sfh census tables, as about 275,900. April, 1861 (under 23 & 24 Vict. NEW COMMENTARIES THE LAWS OF ENGLAND. BOOK I. OF PEESONAL RIGHTS. In a disquisition of sucli extent and variety as that on wliich we are about to enter, it is obviously of tlie first importance to lay do^ra a proper preliminary aiTangement of the subject ; and the plan of division which appears to be most suitable to a treatise of this description, is one founded on a consideration of the natiu'e of municipal law in the abstract, and of the objects or purposes towards which it is directed. It will be necessary, therefore, to recur for a moment to the views taken of this subject in a preceding part of the work. We have seen that mimicipal law is a rule of civil con- duct prescribed by the supreme power in a state (a) ; whose authority to prescribe it has been referred to the contract implied in civil society, that its members should submit to certain restraints of their natm-al freedom, in order to secure to each the enjoyment of defined liberties and ad- vantages: and these we have comprehended tmder the general name of rights (b). It results from these conside- rations, that, in every country, the true and proper objects of the law consfst in the establishment and maintenance^f (a) Vide sup. p. 2G. (h) Vide sup. p. 30. 140 BOOK I. — OF PERSONAL RIGHTS. the rights, severally due to the different^membersof the commiinity. The idea of rights howeyer naturally suggests the cor- relative one of wrongs ; for every right is capable of being %'iolated. A right to receive payment for goods sold (for example) imphes a Avrong on the part of him who owes, but witliholds, the price ; a right to \\\q in personal secu- rity, a wrong on the part of him who commits personal violence. And, therefore, while in a general point of view the law is intended for the estabhshment and maintenance of rights, we find it on closer examination to be deahng both with rights and wrongs. It first fixes the character and definition of rights, and then, with a view to_their effectual security, proceeds to define -wrongs, and to de- vise the means by which the latter shall be prevented or redressed. These considerations form the most convenient basis upon which to constinict the principal dirision of the laws of England; and we shall therefore sever them (like former waiters (c) ) into two portions, one of which re- gards Rights, and the other Wrongs. But, again, if rights be analyzed, they wdll be foimd to consist of several kinds. For first, they are such as re- gard a man's own person ; secondly, such as regard his dominion over the external and sensible things by which he is surrounded ; thirdly, such as regard his private rela- tions, as a member of a family ; fom*thly, such as regard his social state or condition, as a member of the commu- nity : the first of which classes may be designated as per- sonal rights, the second, as rights of property^ the third, as rights in private relations, and the fom-th, a^ public rights. In these divisions of rights, it is to be observed, that we everywhere mean to include the converse or recij)rocal consideration of duties. For whatever is due to one man or set of men, is necessarily due /ro/n another. Thus the (c) Hale and Blackstone; see the Laws of England, and Blackstone's Preface to Hale's Analysis of the Comm. vol. i. p. 122. BOOK I. — OF PERSONAL RIGHTS. 141 right of one man to receive fi'om another the price of a commodity sold, casts upon the latter the duty of paying that price ; and the general right of each individual to live in personal seciu'ity, implies the converse duty on the part of others not to subject him to any violence. The party too, who possesses the right, is in general himself subject to some resulting duty. Thus the people have a right to live imder the form of government established by law, and are imder a corresponding duty of submission to that government. In the discussion of rights, therefore, it is often necessary to speak also of duties. Indeed, it is mider the aspect of duties principally, that some rights require to be considered. To avoid, however, any misapprehension from the use of the term " duties," we may remark that there are some duties which have no connection Avith rights in the sense which we have affixed to the latter expression ; and of such duties our law consequently takes no cognizance. These are, such as the law of God or conscience prescribes, but the^violation of Avhich by the indiA-idual is attended ■udth no direct_mis^chief to others. Thus pubHc sobriety is a duty recognized by the law, haiTng regard to the right of each citizen to be protected fi-om disgusting or conta- minating exliibitions of vice ; but private sobriety is not enforced by any legal sanction ; because secret intoxica- tion, though equally opposed, with open drunkenness, to conscience and the laAv of God, is no \dolation of any human right, nor its commission, if l)y any means detected, a fit subject for human punishment. Wrongs also may be subdiA-ided ; but as regards these, we are necessarily led to adopt a different principle of dis- tribution. For the leading distinction here depends not on the character of the right ^dolated, but on the party who is supposed to sustain injury from its violation. According to the view which our law takes of this subject, the viola- tion of a right may in some instances amount to an injiuy to the particidar individual only, but in others it may take 142 BOOK I. — OF PERSONAL RIGHTS. the character of an injiny to the public at large (d). "VAHicn -viewed in the first aspect, it is usually called a civil injury , when in the last, a crime. Thus the -wdtliholding of money due, is a wrong to the indi\ddual ; and consequently a ci%-il injury ; but it is considered as not aflPectmg the public ; and therefore it is no crime. On the other hand to de- prive a man of his money by theft or robbery, is held to be a wrong to the piiblic, and therefore a crime ; though it is also a ci^dl injiuy, if considered in relation to the damage which the party indi-^adually sustains. The con- siderations which tend to determine whether a given spe- cies of wTong shall be treated as an injiuy to the indi- vidual, or to the pubHc, or both, constitute a subject which it would be prematm-e to enter upon in this place, and which belongs to a later portion of the treatise. It is sufficient at present to have thus stated the general nature of the distinction between ci^dl injuries and crimes, and to remark that it is one of great practical importance ; for the law deals very differently with the two kinds of wrong ; the former being merely a subject for redress, the latter for •punishment. The extensive subject imder consideration appearing thus natm-ally to resolve itself into the several dirisions above indicated, we shall adopt them for the purpose of the present work ; and om' method, or order of discussion, will be as follows : — Book I. Of Personal Rights. II. Of Rights of Property. III. Of Rights in Private Relations. IV. Of Public Rights. V. Of Civil Injuries ; including also the modes of Redress which the law provides for them. VI. Of Crimes ; comprising also the modes of Criminal Prosecution. ( ■ certain statutes ; as in 3 & 4 Will. 4, (e) Shep. Touch. 90 ; Raine v. , • , .,, , , ,, „„„ c. 106, (for regulatinff the law of in- Alderson, 1 Arnold, 329. . ' ^ . . heritance,) where it is provided, that, (/) Blackstone here adds, " ex- so far as the enactments of that sta- cept in the instance of wa*«»- ft^ -^ CHAP. II. —OF TENURES. 193 " tliey cannot be removed fi'om tlie land wliile tliey do the *' service due ; and these villein-socmen are properly called ^' ^ ^-* '^ glehcB ascriptitii. They perform villein services, but " such as are certain and determined." This account, illustrated as it is by other authorities, proves that there antiently existed (as before remarked) four principal kinds of lay teniu-e. And that they were as follows — servltium militare, that is knight-service, or, in law-French, chivalry or service de chivaler, answering to the fief dhaubert of the Normans (e), — where the servdce was free, but uncer- tain : liherum socagium (fi'ee socage), where it was not only fi'ee, but certain : purum villenagium (pure villenage), where it was base in its nature, and uncertain : and lastly, villenagium privilegiatum (or villein socage), where it was base but certain ; which seems principally to have pre- vailed among those who are above describe^l as " tenants of jdie. king's demesnes." The four kinds of tenm'e above enmnerated, however, in process of time were described as only three, viz. knight- service, free socage, and copyhold ; Avhich last comprises both tlie species of villenage to which Bracton refers. These three subsisted in England tiU the middle of the seventeenth century, and the tAvo last subsist to this 1. [The first, most universal, and esteemed the most honourable species of tenui'C, was that by knigkt-servic^,~\ which [differed in very few points, as we shall presently see, from a pure and proper feud, being entirely mih- tarj, and the general effect of the feudal establishment in England.] To make a tenm-e by knight-service, it was necessary that the tenement in point of quantity should amount to twelve ploughlands (/) ; which was called a knight's fee, feodmn militare (g) ; ^nd^the value (e) Spelm. Gloss. 219. Tenure carucata terra, -was a.s much as one by "knight service," is expressly plough could plough in a year; Co. called "Jief d'hauhert" in the Mir- Litt. G9 a. rour (c. 2, § 27.) {^g) 2 Inst. SDG. (/) 2 Inst. 596. A jjjoughland, VOL. I. O 194 BK. II. OF RIGHTS OF mOPERTY. — PT. I. THINGS REAL. [of which is stated in 1 Edw. II. at £20 per annum (i). And he who held this proportion of land (or a Avhole feej^ by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon (A); which attendance was liis reditus or retiu-n, liis rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only boimd to attend twenty days, and so in proportion (V). And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to ; the other fruits and consequences of this tenure being fr-audiilently super- induced, as the regular (though unforeseen) appendages of the feudal system. This tenure of knight-sei'vice had aU the marks of a s trict and regvdar feud : it was granted by words of a pure donation, dedi et concessi (m) ; was transferred by investi- tm-e or dehvering corporal possession of the land, usually called "livery of seisin;" and was perfected by homage and fealty (w).] . It also drew after it the following conse- quences, some of which, as we have seen (o), were ordinary feudal incidents, and therefore in general observance, not in England only, but throughout a large portion of the continent (^). 1. In tenure by chivahy the land on the death of the (i) 2 Inst. 596 ; Co. Litt. 69 a. England they were distinct. Co. (A) " Mr. Selden contends that a Litt. by Harg. 68 a, n.(l). " knight's fee did not consist of land (o) Vide sup. p. 182. " of a fixed extent or value, but was (/j) The local extent of the feudal " as much as the king was pleased to law is pointed out in Hallam's Mid. " grant, upon the condition of having Ages, vol. i. pp. 200— 203, (7th edit.,) " the service of one knight. Tit. of where its regular machinery and " Hon. p. 2, c. 5, ss. 17 and 26." — systematic establishment are con- Christian's Blackstone, vol. ii. p. 62 sidered as chiefly applying " to the (n). " dominions of Charlemagne and to (i) Litt § 95. " those countries which afterwards (m) Co. Litt. 9. " derived it from thence." Den- (n) As to homage and fealty, vide mark, Sweden, Bohemia, and Hun- sup. pp. 181, 182; Co. Litt. 64a, 67b. gary are particularly mentioned as Foreign jurists frequently blend ho- countries not influenced by the feu- mage and fealty together, but in dal system. CHAP. II. — OP TENUEES. 195 tenant passed by descent to liis lieii", for the practice of granting feuds jure^ hcereditario lias been in use amongst us ever since the Norman conquest (9) ; and in this descent sons succeeded before daughters, an elder son before a younger (r). 2. If the heir in chivalry [was under the age of twenty- one, being a male, or fourteen, being a female, the lord was entitled to the wardship of the heir^ and was called the guardian in chivalry (s). This wardship consisted in having the custody of the body and lands of such heir, without any accoimt of the profits, till the age of twenty- one in males, and] fourteen £in females. For the law supposed the heir-male unable to perform knight-service till twenty-one : but as for the female,] Sir E. Coke re- marks, that she might at fourteen govern an household, and marry a husband, who might do knight's service. [The lord therefore had no wardship, if at the death of the ancestor the heir male was of the full age of twenty- one, or the heir-female of fourteen ;] yet, if she was then imder fom*teen, the lord might not only keep her in ward till she attained that age, but if she remained unmarried, he might keep her land in his custody two years longer by viftue~of the statute of Westm. I., 3 Edw. I. c. 22 (t). [This wardship, so far as it related to land, though it was not, nor could be, part of the law of feuds, so long as they were arbitrary, temporary, or for life only ; yet, when they became hereditary, and did consequently often de- scend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feudal principles to have been un- reasonable. For the wardship of the land, or custody of (q) Reeves's Hist. Eng. Law, vol. pp.429, 215 ; vol.i.p. 190, (7th edit.) i. p. 36, (0 Litt. s. 103; 2 Inst. 204; (r) Hale's Hist. C. L. c. 11. Blackstone states the guardianship (s) JFard.fhip and Marriage were of females to have lasted till sixteen. not ordinary feudal incidents, but But see Coleridge's Blackstone, vol. nearly peculiar to England and Nor- ii. p. G7. m andy. — Haliam, Mid. Ages, vol. ii. o2 19G BK. II. OF RIGHTS OF mOrERTY. — FT. I. THINGS REiVL. [the feud, Avas retained by tlie lord, that he miglit out of the profits thereof provide a fit person to supj^ly the in- fant's services, till he slioidd be of age to perform them himself: and, if we consider the feud in its original im- ., _ 5 port, as a stipend, fee, or reward for actual service, it could not be thought Ti^'d that "the lord should watlihold the stipend, so long as the service was suspended : though un- doubtedly to oiu' EngHsh ancestors, where such a stipen- diarj' donation was a mere supposition or figment, it car- rietl abundance of hardship ; and accordingly it was re- lieved by the charter of Henry the first, before mentioned, which took this custody ii'om the lord, and ordained that the custody, both of the land and the children, shoidd be- long to the widoAV or next of kin. But this noble immu- nity did not continue many years. The wardship of the body was a consequence of the wardship of the land ; for he who enjoyed the infant's es- tate was the properest person to educate and maintain him in his infancy : and also in a political view, the lord was most concerned to give his tenant suitable education, in order to qualif)^ him the better to perfonn those sei^vices which in his maturity he was bound to render. ^Vlien the male heir arrived to the age of twenty-one, or the heir female to that of sixteen, they might sue out their livery or ouster lemain{u); that is, the delivei"y_^ of then' lands out of their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profits of the land ; though this seems expressly contrary to Magna Charta{x). However, in consideration of their lands having been so long in ward, they were excused all] the reliefs; and the king's tenants all the primer seisins, also to be hereafter mentioned (y). [In order to ascertain the profits that arose to the crowTi by these first fruits of tenui-e, and to grant the heir his liveiy, the itinerant jus- tici^, or jiiitrces in e}Te, had it foi-merly in charge to make (u) Co. Litt. 77 a, iy) Co. Litt. 77 a. (a-) 9 Hen. 3, c. 3. CHAP. II. — OF TENUHES. 197 [inquisition concerning tliem by a jury of the county, commonlyjcalled an inquisitio post mortem (z) ; which was ins tituted to jiquire (^at the death of any man of fortune) the value of his estate, the teniu-e by which it was holden, and who, and of what age, his heir was ; thereby to as- certain the relief and value of the primer seisin, or the wardship and Hveiy accruing to the kuig thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance; it being one of the principal accusations against Empson and Dudley, the wicked engines of Henry the seventh, that by coloiu' of false inquisitions they compelled many persons to sue out hvery from the croT^ni, who by no means were tenants thereimto (a). And afterwards a comi; of wards and Hveries was erected, fir conducting the same inqumesTn a more solemn and legal manner {h). W hen tlie heir thus came of full age (c) he was to re- ceive the order of knighthood, and was compellalale to take it upon liim, or else pay a fine. For, in these heroical times, no person was qualified for deeds of arms and chivalry who had not received this order, which was con- ferred "uath much preparation and solemnity. We may plainly discover the footsteps of a similar custom, in what Tacitus relates of the Germans, who, in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance ; which ceremony is sup- posed to have been the original of the feudal knighthood (c?). This prerogative of compelhng the vassals to be knighted, (a) Hoveden, sub Rich. 1. Commissioners in the commissions (a) 4 Inst. 198, issued by Edward the sixth and (i) St. 32 Hen. 8, c. 46 ; 33 Hen. Queen Elizabeth, was not limited 8, c. 22. to the king's tenants. And see 16 (c) BIackstoneaddshere(vol.2, p. Car. ],c. 20. 69), "provided he hekl a knight's fee [d) " In ipso condlio vel principum in capite under tlie crown ;" but Mr. aUqiiis, vel pater, vclpropijvjuus, sciito Christian observes, that Lord Coke frameaque juvenemoinant. Hacapiid does not make that distinction in his illos toga, hie primus juventce honus : Commentary on the Stat, de Milit. (2 ante hoc dumus pars videntur ; v,i>x Inst. 593), and lliat the power of the rcipubliae." — De ?.lor. Germ. c. 13. 1 98 BK. II. OF RIGHTS OF PEOPEIITY. — rx. I. THINGS EE.VL. [or to pay a fine — as expressly recognized in parliament by the statute de Militibus, 1 Eclw. II. — was exerted as an expedient for raising money by many of om* best princes, particidarly by Edward the sixth and Queen EUzabeth; but yet was the occasion of heavy murmm-s when exerted by Charles the first: among Avhose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch and the legal exertion of prerogative. However, among the other con- cessions made by that unhappy prince, before the fatal recoiu'se to arms, he agreed to divest himself of this flower of tlie crown, and it was accordingly abolished by statute 16 Car. I. c. 20.1 3. But there was stiU another piece of authority which the guardian was at hberty to exercise over his infant wards; viz. the right of marriage{e), Avhich signifies the power, which the lord or guardian in chivahy had, of dis- posing of his infant ward in matrimony. For, he might tender to his infant tenant, when of the age of fom^een, a suitable match without disparagement, or inequahty ; which thelnfant, if a male, coidd not refuse and many elsewhere, without forfeiting to the lord double the value which the lord might have obtained for the alhance, duplicem valorem maritagii; nor could a female refuse, without entitling him to horn her lands by way of penalty, till she attainedthe age of twenty-one. And even without tender of a match, he was entitled in every case, on the ward's coming of age, to the single value which he might have obtained for the rnarriage (/). [This seems to have been one of the greatest hardships of our antient tenures. There were indeed sub- stantial reasons why the lord shoidd have the restraint and controid of the ward's mamage, especially of his female ward; because of their tender years, and the danger of such female wards intermarrying with the lord's enemy (if/): (e) See Co. Litt. 88, n. (11), by 70 b ; Palmer's case, 5 Rep. 126 b ; Harg. ; Reeves's Hist. vol. i. p. IIC. Co. Litt. 82 a. (/) Lord Daicy's case, 6 Rep. (5) Bract. 1. 2, c. 37, s. 6. CHAP. II. — OF TENURES. 199 [l)ut no tolerable pretence could be assigned why the lord should have the sale or value of the marriage. Nor indeed is this claim of strictly feudal original; the most probable accoiuit of it seeming to be this: that by the custom of Normandy the lord's consent was necessary to the mar- riage of his female wards (A); which was introduced into England, together with the rest of the Norman doctrine of feuds: and it is likely that the k)rds usually took money for such their consent, since, in the before-cited charter of Henry the first, he engages for the future to take nothing for his consent ; which also he promises in general to give, provided such female ward were not married to his enemy. But this among other beneficial parts of that charter being disregarded, and guardians still continuing to dispose of their wards in a very arbitrary unequal manner, it was pro\aded by King John's great charter, that heirs should be married without disparagenient, the next of Idn having pre\aous notice of the contract (i); or, as it was expressed in tKe first draught of that charter, " ita maritentur ne disparagentur, et per consilium propinquorum de consan- guinitate sua^ky But these provisions in behalf of the relations were omitted in the charter of Henry the third: wherein (/] the clause stands merely thus — '' hcsredes ma- ritentur absque disparagatione : " meaning certainly, by hceredes, heirs female, as there are no traces before this to be foimd of the lord's claiming the marriage of heirs male (m) ; and as Glanvil expressly confines it to heirs female (w). But the king and his great lords thenceforward took a handle (fi-om the ambiguity of this expression) to clai m them both, sive sitjmasculus sive fcemina, as Bracton more than once expresses it(o): and also, as nothing but dispa ragem ent was restrained by Magna Charta, they (A) Gr. Cust. 95. tagium seem ex vi termini to denote (i) Cap. C, edit. Oxen. the providing of a husband. {/{) Cap. 3, ib. (n) L. 7, c. 9 and 12, and 1. 9, (0 Cap. 6. c. 4. (to) The words mnritare and maii- (o) I/. 2, c. 38, s. 1. 200 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS RE^VL. [thouglit themselves at liberty to make all other^dvantages that they could^). And aftcr\\^ards this right of selling the ward in marriage, or else recei\dng the price or value of it, was exjDressly declared by the statute of MeY ton(q); which IS tKe first direct mention of it perhaps to be met ■with, in GUI' o^Yn or any other laAv.] 4. The tenant in chivalry was also liable to aids. These in England [were principally three : first, to ransom the lord's_person, if taken prisoner; a necessary consequence of the feudal attachment and fidelity: insomuch that the neglect of doing it, whenever it was in the vassal's power, was, by the strict rigour of the feudal law, an absolute forfeiture of his estate (r). Secondly, to make the lord's eldest son a knight : a matter that was formerly attended with great ceremony, pomp and expense. This aid coidd not be demanded till the lord's heir was fifteen years old, or capable of bearing arms (s) ; the intention of it being to breed up the eldest son and heir apparent of the seigniory to deeds of arms and chivahy, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion ; for daughters' portions were in those days extremely slender, few lords being able to save much out of their income for this purpose : nor could they acquire money by other means, being wholly con- versant in matters of arms; nor, by the nature of their tenm-e, could they charge their lands with this, or any other incumbrances. From bearing their proportion to these aids, no rank or profession was exempted : and there- fore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden)and the marriage of his female descendants (i). And one cannot but observe, in this particular, the great resemblance which the lord and vassal of the feudal law, bore to the patron and client of the (p) Wright's Tenures, 97. (s) 2 Inst. 233. (?) 20 Hen^S, c, 6^ (t) Philip's Life of Pole, 1. 22-3. {r) Feud. 1. 2, t.24. CHAP. II.— OF TENURES. 201 [Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, -with regard to the matter of aids, there were three which were usually raised by the client ; viz. to marry the patron's daughter; to pay his debts; and to redeem his person from capti^dty(M). But besides these antient feudal aids, the tj-ranny of lords byclegrees exacted more and more ; as, aids to pay the lord's debts (probably in imitation of the Romans), and aids to enable him to pay aids or rehefs to his superior lord ; Brom which last indeed the king's tenants in capife were, from the natiu-e of then' tenm-e, excused, as they held immediately of the king, Avho had no superior. To prevent this abuse. King John's Magna Cliarta (y) ordained, that no aids be taken by the king of Ms tenants in capite \A\\\- out consent of parhament, nor in any wise by inferior lords, save only tlie three antient ones above mentioned. But this provision was omitted in Henry the tlurd's charter, and the same oppressions were continued till the twenty- fifth year^FEdAvard the first, when the statute called Con- firmatio Chartarum was enacted ; which i n thi s respect revived_King John's charter, by ordaining that none but the antient aids slioidd be taken.] These ordinances, however, related to the species of aids only ; the quantity of each aid was provided for by other statutes. [King Jolin^s charter indeed ordered, tliat all aids taken by in- ferior lords shoidd be reasonable (w)-,'] as well as that the aids taken by the king of his tenants in capite should be settled by parhament {x). But they were never completely adjusted till the statute Westm. I. (3 Edw. I. c. 36), and 25 Edw. III. (stat. 5), c. 11, the former of which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth (m) " Erat autem hacinter utrosque Paul. Manutius de Senatu Romano, qfficiorum vicissitudo — ut clientes ad c. 1. collocandas senatorum filias de suo con- {v) Cap. 12, 15. ferrent ; in esris alieni dissolutionem (w) Ibid. 15, gratuitam pecuniam erogarent ; et ub (a:) Ibid. 14. hoslibus ill bcllo captos redlinereiit." — 202 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. part of the annual value of every loiiglit's fee, for making the eldest son a knight, or marrjnng the eldest daughter : and the latter did the same with regard to the kiner's tenants in capite. [The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was therefore never ascertained.] 5. The tenant in cliivahy was hable besides to relief. [This was looked~upon, very justly, as one of the greatest grievances of teniu-e ; especially when, at the first, it was merely arbitraiy and at the will of the lord ; so that, if he pleased to demand an exorbitant relief, it was in eflPect to disinherit the heir (x). The Enghsh iU brooked this consequence of their new adopted poHcy ; and therefore WiUiam the Conqueror by his laws(y) ascertained the relief, by directing, in imitation of the Danish heriots, that a certain quantity of arms and habihments of Avar should be paid by the earls, barons, and vavasours respectively j and if the latter had no arms, they should pay 100s. "VYiUiam Rufiis broke through this composition, and a^ain demanded afbltrary imcertain reliefs, as due by the feudal laAvs ; thereby in effect obhging every heir to new piu'- chase or redeem his land (z) : but his brother, Henry the fii'st, by the charter before mentioned, restored his^ father's law ; and ordained that the rehef to be paid should be according to the law so established, and not an arbitrary redemption («). But afterwards, when, by an ordinance in the twenty-seventh year of Henry the second, called the " assize of arms," it was proA^ded that every man's armoiu' should descend to his heir, for defence of the realm ; andTiTthereby became impracticable to pay these acknow- ledgments in arms, according to the laAvs of the Conqueror; the composition was universally accepted of 100s. for every knight's fee, as we fin3 it ever after established (&). But (x) Wright's Tenures, 93. suajn sicut faciehat tempore fratris met, (y) Wilkins's Leges Anglo-Sax. sed legitima et justa relevatione rele- LL. Guil. Con. cc. 22, 23, 24. vahit earn." — Text. Roffens. cap. S*. (z) 2 Roll. Abr. 514. (i) As to what was a "knight's (a) " Herres von redimet ferrnm fee" vide sup. p. 193. CHAP. II. — OF TENURES. 203 [it must be remembered (c), that this rehef was only then payable, if the heir at the death of his ancestor had attained his full age of one and twenty years.] 6. The tenant in chivalry was also Hable to the pay- ment o£ primer seisin, which was, However, a burthen [only incident to the Hng's tenants in capite, and not to those who held of inferior or mesne lords {d). It was a right wliich the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir, (provided he were_of full age,) one whole year's profits of the lands, if they were in immediate possession ; and half a year's pro- _q__ fits, if the lands were in reversion expectant on an estate • for^ life (e). This seems to be little more than an addi- tional relief, but gromided upon this feudal reason ; that, by the antient law of feuds, immediately upon the death of a vassal the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it and receive investiture ; during which interval the lord was entitled to take the profits ; and unless the heir claimed within a year and a day, it was by the strict law a for- feitm'e(/). This practice, however, seems not to have long obtained in England, if ever, with regard to tenure im.der inferior lords ; but as to tenures in capite, the prima seisina was expressly declared, imder Henry the third and Edwardjthe second, to belong to the Idng by prerogative, in contradistinction to other lords (^). The king was en- titled to enter and receive the whole profits~or tTie land, till livery was sued ; which suit being commonly made within a year and a day next after the death of the tenant, in pursuance of the strict feudal ride, therefore the king used~to~take, as an average, \\\q first fruits, that is to say, (c) Glanv. 1. 9, c. 4 ; Litt. § 112. tlie relief. — Hallani, Mid. Ages, vol. ().] Manors of antient demesne accordingly comprise, to this day, both copyholders in the proper and common sense of the term, and also such pri-vdleged tenants as above de- scribed (c), who are alone properly caUed tenants in antient demesne (d). As to these, though their services, like those (0 F. N. B. 14, 16 ; Crowther v. 3 & 4 Will. 4, c. 74, ss. 4, 5, 6. Oldfield, Salk. 3(J4. (a) F. N. B. 11. («) C. 60. (b) Ibid. 14. (x) F. N. B. 228. (c) F. N. B. 11 M., 12 B; Co. (y) 4 Inst. 269. Cop. s. 32. (z) Doe V. Roe, 2 Burr. 1046; (d) Third Real Property Rep. 13. Alden's case, 5 Rep. 105 ; and see 230 BK. II. OF RIGHTS OF PROrERTY. — I'T. I. THINGS REAL. of pure \'illeiiis, were originally base, yet (as appears by the account of them just given) they were distinguished fi-om the latter, in that [their services were fixed and detemiinate ; and that they could not be compelled (hke pm'e villeins) to relinquish their tenements at the lord's ■will, or to hold them against their own ; " et ideo^'' says Bi'acton, " dicuntur liberV^ Britton also, from such their freedom, calls them absolutely sokemans, and their teniu*e \sokemanries ; which he describes to be " lands and tene- *' ments, which are not held by knight-service, nor by grand " serjeanty, nor by petit, but by simple services ; being, " as it were, lands enfranchised by the king or his prede- " cessors fi-om their antient demesne (i)." And the same name is also given them in Fleta (k).'] Tenants in antient demesne, like common copyholders, require admittance by the lord to perfect their title ; and they hold according to the custom of the manor, though not ad voluntatem dornini (/). Customary freehold (the other variety to which we re- ferred) exists in many parts of the kingdom. The evi- dences of title are to be fovmd, as in pure or common copyhold, u^jQ the com-t rolls ; and the entries declare the holding to be according to the custom of the manor, but it is not said to be at the vnll of the lord (m). The customs of these manors are subject to great variety. _ But in general the incidents of customary freehold are similar to those of common copyhold (n). (i) C. 66. though distinguished from the com- (Ar) L. 1, c. 8. mon kind by many of its incidents. (0 2 Bl. C. 101; and ace. Co. See Graham w. Jackson, 6 Q. B. 811 ; Cop. s. 32 ; but see Third Real Passingham, app. Pitty, resp. 17 C. Property Rep. p. 13. B. 313. (m) Co. Cop. s. 32; see Third («) As to the state of the law with Real Property Rep. p. 20 ; Co. Liti. respect to the devise of customary by Harg. 52 b, n. (1 ). There is also freeholds before the stat. 7 Will. 4 & a kind of customary estate called 1 Vict. c. 26, see the Third Real tenant right, said to be peculiar to Property Rep. p. 22 ; Doe v. Llewel- the north of England, and which len, 5Tyrw. 899; Hodgson «. Merest, falls, like other customary estates, 9 Price, 55(i. But by the 3rd section under the general class of copyhold, of that statute, the jiower of devising CJIAF. II. — OF TENLTRES. 231 [Mention lias hitherto been made of lay tenures onl}- ; because there is still behind, one other species of tenure reserved by the statute of Charles the second, which is of a spiritual nature, and called the tenure in frankal- moign. IV. Teniu'e in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a rehgious corporation, aggregate or sole, holdeth lands of the donor to them and their suc- cessors for ever (o). The ser\'ice which they were bomid to render for these lanHs was not certainly defined : but only, in general, to pray for the souls of the donor and his heirs, dead or alive ; and therefore they did no fealty, which is incident to all other services but this (jp), be- cause this divine service was of a higher and more exalted natm-e (y). This is the teniu'e by which almost all the antient monasteries and religious houses held their lands ; anSTby which the parochial clergy, and very many eccle- siastical and eleemosynary foundations, hold them at this dayj[F) ; the natiu-e of the service being, upon the Reforma- extends to all customary freehold. remedy of the parson for recovering There has been much controversy of his glebe, &c. in vphich the point upon the question whether the free- of inquiry always was " utrum tavtum hold, in this description of tenure, terree sit libera eleemosyna pertinens is vested in the tenant, or (as in the ad ecclesiam ipsius, an laicuin feo- case of common copyhold) in the dum." — Bract. 1. 4, tr. 5, c. 1. It is lord ; see Blackst. Law Tracts, Cons. true, indeed, that in the case of a on Copyhold; 2 Scriven, 679, 3rd parson the inheritance is said to be edit, and the cases there cited ; in abeyance, and the parson entitled Third Real Property Rep. 20. As for his life only (vide post, p. 2H), to antient demesne, it is clear that and this at first sight appears in- the freehold is in the tenant ; 2 Inst. consistent with the nature of frank- 325 ; 2 Scriven, 678, (n). almoign, which always implies a gift (o) Litt. s. 133. in perpetuity: but the difficulty is (p) lb. s. 131. removed by the remark of Bracton {q) lb. s. 135. (ibid. c. 2), "nihil clamare poterit (r) See Third Real Property Rep. nisi nomine ecclesim sucb, quia in ec- p. 7. That Blackstoiie is correct in clesiis parochialibus non fit donatio stating this as the tenure of the paro- persona sed ecclesite." The inlierit- chial clergy, is confirmed by the Ian- ance, according to this view, resides giiage of the asswa Mfraffi, the antient not in himself, but in his church. 232 BK. II. OF RIGHTS OF rROPERTY. — FT. I. THINGS REAL. [tion, altered and made conformable to the pm-er doctrines of the Church of England. It was an old Saxon tenm-e, and continued under the Xorman revol ution, through^tlTe great respect that was sho^Ti to religion^ amdrehgious men in antient times. ^Miich is also the reason that tenants in frankalmoign Averc disdiaru'cd of all otlici' scr\ ices, except the trinoda 7zec«.N77«s, of repairing the L i ul i ways, building castles, and re])elling invasions (,s): just as the Druid.-, among the anticnt lii'itoiis. hadi omnium rerum im- munitatem {t). And, even at present, this is a tenm-e of a nature veiy distinct from all others, being not in the least feudal, but merely spiiitual. For if the se r vice _be neglected, the law gives no remedy by distress or other- •wi&c to the lord of whom the lands are holden, but merely a complaint to the ordinary or visitor to correct it^ (u). "WliereiiTit materially differs from what was c alled tenure hy divine service : in which the tenants were obliged to do some >i)eeial divine services in certain ; as to sing so many masses, to distribute such a sum in alms, and the like ; which, being expressly defined and prescribed, coidd \vith no land of propriety be called /ree alms; especially as for tlus, if imperformed, the lord might distrain, mthout any complaint to the visitor [x). All donations in fi-ankal- moign are indeed now out of use ; for, since the statute of Quia emptores, (18 Edward I.,) none but the king can give lands ito be holden by this teniu-e (?/). So they are only mentioned hecoxxSsQ frankalmoign is excepted by name in the statute of Charles the second, and therefore subsists in many instances at this day.] (And see Litt. s. 646.) The tenure (?/) Litt. s. 140. By this statute no of the parochial clergy, however, will subject may grant lauds in perpetu- be of this kind only where the grant ity to hold of himself; (ibid.) From was made in the antient form, to which it follows, that none can grant hold ut in liberd ehemosym. See in frankalmoign ; for (as Littleton Wats. C. L. 373; Plowd. 242; 1 afterwards remarks) none may hold Inst. 94 b. in frankalmoign, but of the grantor («) Seld. Jan. 1, 42. and his heirs, (s. 141,) and the estate [t) Csesar de Bell. Gal. 1. 6, c. 13. in frankalmoign is always in perpe- (k) Litt. s. 136. tuity.— Co. Litt. 94 b. {x) Litt. s. 137. CHAP. II. — OF TENURES. 233 Having made these observations with respect to tenures in general, it may be now proper to add, that in proceed- ing ftuther to investigate the natiu-e and properties of coi-poreal hereditaments, we shall for the present suj)pose them held by the ordiTiary tenure of free socage, or free- hold ; and the reader may dismiss the subject of copyhold fi'om his consideration, till we arrive at a later part of the treatise, when we shall have occasion to devote a separate clia|)t(_'r to the more particular examination of property h olden by that teniu'c (z). (z) Vide post, bk. ii. pt.i. c. xxii. It may be desirable to mention here, that as regards some matters of ge- neral interest, there is now no dis- tinction between freehold and copy- hold fn point of ))ractical effect ; the two tenures lining jilaced by modern statutes on the same footing, as far as these subjects are concerned. These are the qualification to vote at elections of members of parliament for counties ; —andt the qualifivation to se rve on ju ries. See, as to the former, 2 Will. 4, c' 45, (the " Reform Act" of 1832,) s. 19; as to the latter, 6 Geo. 4, c. 50, s. 1. 234 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTER III. OF FREEHOLD ESTATES OF INHERITANCE. \ The second point to be considered witli regard to corporeal heredltamenrs is tlie nature of the estates which may be hadm such of them as are of free temu'e(a), reserving for subsequent consideration the subject of coi'poreal heredita- ments held in base tenure (b). [An estate in land signi- fies such interest as the tenant hath therein ; so that if a man grants all his estate in Dale to A. and his heirs, every- thing that he can possibly grant shall pass thereby (c). It is called in Latin status : it signifying the condition or circimistance in which the owner stands with regard to his property.] And here it is material, in the first place, to remark that some kind of actual interest or ownership is imphed in the term ; for a bare possibility, (such, for example, as the ex- pectation of the eldest son of succeeding, upon his father's decease, to the inheritance of his lands,) a\t11 not satisfy the legal idea of an estate (rf). Nor wiU a mere jjower amoimt to an estate ; as if a man by will orders his land to be sold by his executors : for they will in such case take neither riglit nor title in the land, but only a bare autho- (a) Vide sup. p. 177. text; the other a possibility coupled (6) Vide post, bk. ii.pt. I. c. XXII. with an interest. The latter may (c) Co. Litt. 345 a. without impropriety be considered {d) See Jones «. Roe, 3 T. R. 93 ; as an estate (though an estate in Doe V. Tomkinson, 2 Mau. & Sel. contingency), and may now, by the 170. There are two kinds of possi- express provision of 8 & 9 Vict. c. bility in law: — one a bare possibi- 106, s. 6, be disposed of by deed. lity, such as referred to in the -> ) CHAP. III. OF FEEEIIOLD ESTATES OF INHERITANCE. 235 rity {e). And the same may be said of a mere revocable licence or permission to make a certain use of land (/). But, on the other hand, there are various descriptions of actual interest to which the term apphes. The leading distinction to which estates are subject is that of legal and equitable estates; the first being properly cognizable in the com-ts of common law, though noticed also in the coiui;s of equity ; and the second being properly cognizable in the latter coiu^s, and not even noticed, generally speak- ing, in the former (^). It is of legal estate alone (which is the original and primary idea) that we shall have occasion at present to speak ; and we piu^ose to consider it [in a threefold view : first, Avith regard to the quantity of interest which the tenant has in the tenement ; secondly, with regard to the time at which that quantity of interest is to be enjoyed ; and, thirdly, with regard to the number and connection of the tenants. Fii'st, with regard to the quantity of interest which the tenant has in the tenement, this is measiu'ed by its dura- tion and extent.] Thus, either the ownership is to subsist in the tenant diuing his o^vn hfe, or the life of another man ; or it is vested in the tenant and his descendants after him ; [or it is circiunscribed within a certain niunber of years, months, or days ; or, lastly, it is infinite and unlimited, being vested in the tenant and his representa- tives for ever. ^ And this occasions the primary division of estates into such as are freehold, and such as are less than freehold. ~\ A freehold estate — liberum tenementum, or fi*ank tene- ment, as it w as formerly called— is an estate either of (e) Co Litt. 265 b; Co. Litt. 113a, 574; Taplin v. Florence, 10 C. B. n. (2). 764. (/) See R. V. Mellor, 2 East, (g) Sanders on Uses, 8 ; Bac. Us. 189; Wood i;. Leadbitter, 13 Mee. 77 ; 2 Fonbl. 257. And see Alpass w. & W. 838; Perry v. Fitzhowe, 8 Watkins, 8 T. R. 516; Hardr. 469; Q. B. 757 ; Hewitt v. Isham, 7 Exch. Miirley v. Sherron, 8 Ad. & El. 654. 77; Rotfey v. Henderson, 17 Q. B. 236 BK.II. OF EIGHTS OF rROPEETY. — rX. I. THINGS REAL. inheritance, or for life, in lands or tenements of free tenure (A) V andTt is material to our proper conception of it to remark, that at the common law, and prior to certain alterations in our system to be hereafter explained, an estate^f this description in hereditaments corporeal could in general be created or transfen-ed only by the ceremony called livery of seisin, attended watli proper words of dona- tion (i) : A\ hich ceremony consisted, as its name imports, of a solemn dehvery of possession ; and is iii fact the feudal investiture of which we spoke in the last chapter. This method (which is still capable of being used) is called 2i feoffment ; and the parties betAveen whom it takes placeare called the feoffor and the feoffee. By the com- mon law, the donation ^-ith which the liveiy is accompanied might be merely oral ; but now, by the Statute of Frauds, (20 Car. II. c. 3,) it must be expressed by some instrument in Amting, imder the signature of the feoffor or of his agent by A\Titing lawfully authorized. It ap})('aT> bv our definition, that estates of freehold may be classed as Ix-iiig [cither estates of inheritance, or estates not of inheritance (A)] ; and these two kinds will each be considered in their order. An estate of inheritance is where the tenant is not only entitfeSTto enjoy the land for his own hfe, but where, after his death without having disposed of it, it is cast by the {h) The tenure itself,_we may re- tion of freehold is, that it is " such co llect, is expressed by the same term " an estate as is conveyed by livery offreehold ; (vide sup. p. 214, n.) "of seisin" — 2 Bl. Com. 104; but As to the definition here given of he adds, that as estates of inherit- freehold estate, it is according to Co. ance, or for life, and no other, are Litt. 4.3 b, where it is laid down that conveyed with this solemnity, there- " tenant in fee, tenant in tail, and fore no others are properly free- " tenant for life, are said to have a hold. "frank tenement, a freehold, so (?') Co. Litt. 49 a. Astotheman- " called, because it doth distinguish ner of making livery, see Doe v. " it from terms of years, chattels Taylor, 5 Barn. & Ad. 575. " upon uncertain interests, lands in (k) Edward Seymour's case, 10 " villenage, or customary or copy- Rep. 97 b. " hold lands." Blackstone's defini- CHAP. III. — OF FREEHOLD ESTATES OF INHERIT^VNCE. 237 law upon the persons who successively represent him in perpetuum in right of blood (/) according to a certain estabhshed order of descent, which we shall have occasion hereafter to explain (m). These persons are called his heirs, and himself their* ancestor. An estate of inheritance is otherwise called a fee (n). [The tiaie meaning of the word fee, feodum, is the same "^\'ith that of feud or fief, and in its original sense_it_ is taken in contradistinction to allodium (o) ; which, as we have seen, is a man's own land, which he possesseth merely in his own right, mthout OAving any rent or service to any superior. This is property in its highest degi'ee, and the owner thereof hath absolutum et directum dominium. But feodum, or fee, is that which is held of some superior, on condition of rendering him service ; in which superior, the idtimate property of the land resides. This allodial pro- perty no subject in England has, it being a received and now undeniable principle in the law, that all the lands in England are holden mediately or immediately of the crown. T he sovereig n therefore, o nly, hath a bsolutum et directum dominium (p) ; but all subjects' lands are in the nature o{ feodum or fee, whether derived to them by de- scent from their ancestors, or pui'chased for a valuable consideration ; for they cannot come to any man by either of those ways, unless accompanied AAath those feudal clogs wliich were laid upon the first feudatory Avhen it was origi- nally granted. This is the primary sense and acceptation of the word fee. But, as Sir Martin Wright very justly observes (5-), the doctrine " that all lands are holden " ha^dng been for (Z) Co. Litt. 237 b. (0) As to allodial property; vide (m) As to the law of descent, vide sup. p. 178. post, bk. II. pt. I. c. XI. (/}) " PriEdium domini regis est di- (n) " Fee simple " and " inheri- recUtm dominium, cujus nullus est tance " are used as convertible author riisi Deus." — Co. Litt. 1 b. terms, Litt. s. 9; Litt. s. 1; Flet. (?) Of Ten. 148. 0;c. 5, s. 27. 238 BK. II. OF RIGHTS OF PROPERTY. — FT. I. THINGS REAL. [so many ages a fixed and undeniable axiom, our English la-\v}'ers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradis- tinction to allodium or absolute property, -vrith which they haye no concern ; but generally use it to express the con- tinuance or quantity of estate. ^Jee, therefore, in general, signifies an estate of inheritance (r), being the highest and most extensive interest that a man can have in a feud. AnTin no other sense than this is the king said to be seised in fee, he being the feudatory of no man(s).] Estates of iulieritance are either estates in fee simple or estates In Jee tailii). I. An estate in fee simple {u) is that which a man hath to hold to him and his heirs general (a:), that is, his heirs both lineal and collateral, male and female ; and this is often called an " estate in fee," without the addition of the word " simple" {y) ; though, as abeady explained, a " fee" more properly signifies any estate of inheritance. Where a man claims an estate in fee simple in possession in a cor- poreal hereditament {z), the precise technical expression is as follows : that he is " seised in his demesne as of fee," {in dominico suo ut de feodo) ; the words in dominicq, ox^ in his demesne," signif^dng that he is seised as owner of the (r) I^itt. s. 1 ; Flet. 1. 5, c. 5, s. 27. («) As to this estate, see Co. (s) Co. Litt. 1 b. Litt. 1 a— 18 b. (^) "An estate of inheritance is (j:) Wright's Tenures, 147; Co. either fee simple or fee tail." — Ed- Litt. 1 b. It is to be observed that ward Seymour's case, 10 Rep. 97 b. we are treating at present of natural Et vide Litt. s. 13; Co. Litt. 1 b, persons only. Artificial persons, or 19 a, 27 b ; Vaughan, 27.3. Black- corporations, of whom we shall have stone divides inheritances into such occasion to speak hereafter, hold as are absolute (which he considers estates in fee simple, to them and as equivalent to fees simple) and their successors. Co. Litt 8 b. such as are limited, of which he con- (y) Litt. s. 293. siders fees tail as forming a species. («) Where the subject is incorpo- (2 Bl. Com. 104.) But the authori- real, or the estate expectant on a ties in favour of the division in the precedent freehold, the words "in text (which is the more usual one) his demestie" are omitted. Com. Dig. greatly preponderate. Pleader (C. 35). CHAP. III. — OF FREEHOLD ESTATES OF INHEEITANCE. 239 land itself, and not merely of the seigniory or services (a) ; and the words " as of fee " importing that he is seised of an estate of inheritance in fee simple, and also (in reference to the original meaning of the term fee) that he is not the absolute or allodial ovvTier, but holds, feudally, of a supe- rior lord(&). The quality of being always holden of a superior lord (the natm^e of which was ftdly explained in the Chapter on Tenures) is incident to every estate in fee simple belonging to a subject ; but the tenm-e is no longer (as formerly) of the person from whose immediate grant the fee is derived, but of the person to whose seigniory it has of antient time belonged. This is by the effect of the statute of Quia emptores (18 Edw. I. c. 1), wliich was passed to put a stop to the practice of the subinfeudation of the fee simple (c). For, according to that practice (which was antiently al- lowed}7a new relation of lord and ten ant was, up on each (o) Blackstone considers these words "in liis demesne," as sig- nifying that it is " his property, as belonging to him and his heirs for ever."— 2 Bl. Com. 105. But this assigns no meaning to them beyond wliat would belong to the other words with which they are con- nected. Lord Coke understands the word demesfie, when used in this par- ticular connection, to signify de main or of the ha7id, because it is applied only to corporeal or tangible subjects of property. Co. Litt. 17 a. But the Latin term dominicum is opposed to this derivation ; for it is evidently to be traced to dominus. On the other hand, there is abundant au- thority for holding that dominicum properly signifies the land which the feudal lord retained to his own use for susteiitation of his household, as distinguished from what he granted out on services ; and that the true sense of seisin in demesne, is that given in tjie text. Thus it is laid down in Fleta, 1. 5, c. 5,s. 18 — "Est dominicum proprie terra in mensam assignata, ^c." And again, " Poterit unus tenere in feodo quoad servitia, sicut dominus capitalis, et non in do- viinico — alius in feodo et dominico, et non in servitio, sicut libere tenensalicu- jus," (s. 26.) And Bracton, in treat- ing of the assisa utrum, says, " refert qualiter fuit seisitus, utrum scilicet in dominico, vel servitio." — Bract. 1. 4, tr. 5, c. 2, s. 2. As for the exclusive appropriation of the term to tangible possessions, that is referable merely to the circumstance, that what the lord applied to the use of his house- hold naturally consisted of property of that description, and not of in- corporeal and intangible subjects. (6) 2 Bl. Com. 105. (c) As to subinfeudatioHj vide sup. pp. Uy, 191. 240 BK. II. OF RIGHTS OF PROPEIITY. — FT. I. THINGS REAL. successive alienation of the fee, continually created be- tween tEe alienor and alienee ; and the latter consequently held of tlie fonner, and not of the chief lord under whom the alienor himself held. But this being foimd prejudi- cial to the interests of the chief lords, by exposing them to tTie fi'equent loss of their escheats, wardships, and mar- riages, the statute in question was passed for their pro- tecTion (irT) ; directing that upon all sales or feoffinents of land in fee simple, the feoffee shall hold the same, not_of his immediatenPeoffor, but of the next lord paramount, of whom such feoffee himself held ; and by the same ser- vices (e). Since this statute (/"), therefore, the vendor or grantor of land in fee simple has no longer been able to convey it to be holden of himself, but the grantee must take it to hold of the same seignior}- to which the fee im- mediately belonged when the statute passed {g), — unless something shoidd have since occiuTed to alter the teniu'e. Where, fi'om the lapse of time, no badges of tenure under any subject can now be traced, the land will be considered as holden immediately of the cro^^^l(/i), and by the service of mere fealty ; which is the least and lowest service jthe law can create (i), and which being noAv never exacted, has become a merely nominal obHgation(A). But in many instances a private lord can still be shown to be entitled to the immediate seigniory ; the idtimate one, as formerly remarked, being in all cases vested in the sovereign. A fee simple is the most extensive estate of inheritance (d ) 2 Inst. 66, 500. the tenants in capite, where they held (e) lb. 505. ut de honore, and not ut de corond. (/) It is said that the stat Quia (Wright's Tenures, 163; Taylor v. emptores did not extend to the king's Hoi-de, Burr. 108.) As to the dis- own tenants in capite, but that the tinction between these two tenures like law was afterwards declared as in capite, vide sup. p. 190. to them by the statute De Preroga- (g) Bradshaw v. Lawson, 4 T. R. tiva Regis, (17 Edw. 2, c. 6,^ and 34 443. Edw. 3, c. 15. See 2 Bl. Com. 91. (h) Booth, 135. It would seem, however, that the stat. (i) Co. Litt. 98 a. Quia emptores did in eflfect apply to (/,) Co. Litt. by Harg. 68 b, n. (5). CHAP. III. OF FREEHOLD ESTATES OF INHERITANCE. 241 that a man can possess in land(Z) ; it is tlie entire property therein (m) ; and to a fee simple (as indeed to most other estates) is attached — as an inseparable incident — the right ofalienation (n), at the mere pleasure of the tenant, to the full extent of the interest which is vested in the tenant himself, or for any smaEer estate. If he alienes to the full extent of his interest, or, in other words, conveys away the fee simple, it foUows of course that the ahenee takes an estate to himself and his own heirs, answerable to that which the original tenant had to him and his heirs. [The fee simple or inheritance of lands and tenements is generally vested and resides in some person or other, though divers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two hves, the fee simple remains vested in the grantor and his heirs ; and afler the determination of those years or Hves, the land "reverts to the grantor or his heirs, who shall hold it again in fee. Yet sometimes the fee may be in abei/- ance(o),'] that is, only in remembrance, intendment, and consideration of the law (p) ; there being no person in esse, in whom it can vest and abide ; though the law con- sidefsTTas always potentially existing. This may be ex- emphfied in [the case of a parson of a church, who hath only an estate therein for tlieTerm of his life, and the in- (Z) Litt. s. 11; Co. Litt. 18 a; et vide sup. 231, n. Vaughan, 269. (/)) Blackstone (vol. ii. p. 107) (w) Butler's Fearne, p. 13 (note); considers abeyance as also import- Co. Litt. 18 a; 2 Saund. 388 b; ing" expectation," and Co. Lkt. 84:2]), Machell «. Clarke, Lord Ray. 779; is to the same effect. Yet Lord Coke 2 Inst. 336 ; Edward Seymour's himself afterwards remarks that the case, 10 Rep. 97 b. fee simple may be in perpetual abey- (n) Litt. s. 360; Co. Litt. 223 a; ance (as in the case of a parson) 1 Cr. Dig. 20. " without any expectation to come (o) As to the doctrine of abeyance, in esse." Co. Litt. 343 a. Littleton's see Co. Litt. 341 a, 342 b ; Litt. 646, exposition, therefore, which is that 647; Butler's Fearne, p. 360, 9th followed in the text, seems to be the ed. ; 1 Prest. Est. 503; Camoys' more correct ; (see Litt. s. 646.) Peerage Case, 5 Bing. N. C. 763 ; VOL. I. R 242 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [lieritance remains in abeyance (q). And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is_in abeyance, luitiT a successor be named, and jthen it vests in the suc- cessor (r). The word "heirs" is necessary in the grant or donation, in order to make a fee or inheritance. For if the land be given to a man for ever, or to him and his assigns for ever, thlsTests in him but an estate for life (5). This very great nicety about the insertion of the word "heu's" in all feoff- ments and grants, in order to vest a fee, is plamly a rel ic of the feudal strictness, by which it was requii'ed that the form of the donation should be punctually pursued ; or that, as Ci'aig(0 expresses it in the words of Baldus, *' donationes sint stricti Juris, ne quis plus donasse -prcesuma- tur quam in donatione expi'esserit." And thei'efore, as the personal abihties of the donee were origmally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his o^vu person, and subsisted no longer than his hfe ; vmless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his lieii's.] But this rule has some exceptions — and particularly does not extend to devises by will ; in which, as they were in- troduced at the time when the feudal rigoiu' was apace wearing out, a more hberal construction has always been allowed : and therefore by a devise to a man for ever, or to one and his assigns for ever, or to one in fee simple, the de\dsee, (even before the late Act of 7 Will.. IV. & 1 Vict. c. 26,) was construed to have an estate of inhentance ; for the intention of the devisor was sufficiently plain from the words of peipetuity annexed, though he had omitted the (q) Litt s. 646. Lord Coke, bow- (r) Litt. s. 647 ; Co. Litt. 342 b. ever, holds that a parson has for (s) Litt. s. 1 ; Wright v. Dowley, some purposes a fee simple quali- 2 W. Bl. 1185. fied ; Co. Litt. 341 a. (t) L. 1, t. 9, s. 17. CHAP. III. — OF FEEEHOLD ESTATES OF INHERITANCE. 243 legal words of inheritance (w). But if tlie devise were to a man and " liis assigns," without annexing words of per- petuity, there the devisee was, at one time, held to take only an estate for life ; for it did not appear that the de- visor intended any more. A new rule of construction, however, is now pro^aded, by a positive law, for all such cases; for by the statute just mentioned (sect. 28), it is pro- vided, that where any real estate shall be devised without w6rds~of limitation, it shall be construed to pass the whole interest of which the testator had power to dispose, unless the contraiy intention shoidd appear by the will. ^statesln fee simple are divided into three sorts (x) : — I, fee simple absolute (that isT^ree from all qualification or condition) ; 2, fee simple qualified or hose ; 3, fee simple conditional, — a di^dsion which relates, it is to be ob- served^ to the quality, not the quantity, of the estate ; for {u) Thus, too, (even before the new Will Act,) a devisee of an in- definite estate, if he was charged personally with the payment of debts or legacies, was held to take the fee. Secus, if the estate devised to him was so charged. See Doe d. Sams v. Garlick, 14 Mee. & W. 698. (.r) This division of fees simple is given by Lord Coke as the common one in his time (Co. Litt. 1 b) ; and is followed by Mr. Justice Powell, in Idlet). Cooke, (Lord Raym. 1148,) and by the Court of King's Bencli in Martini). Strachan, (reported 5 T. R. 107, in notis.) It is to be observed, however, that the two last classes are both referred by Lord Coke to a more general head of fees simple deter- minable {a term still in frequent use). See Edward Seymour's case, 10 Rep. 97 b, where estates of inheritance are distributed with great clearness and precision, as follows: — First, they are either fee simple or fee tail. Estates in fee simple are either absolute (i. e. indeterminable) or de- terminable. Those which are deter- minable are either derived out of an estate in fee simple absolute, or derived out of an estate in fee tail. The first of these are created either by way of condiiion-^s upon mortgage), or by way of limitation (as if A. enfeoffs B. of the manor of D. to hold to him and his heirs so long as C. has heirs of his body) ; the first sort being called fees simple conditional, the second, fees simple limited and qua- lified. The fee simple derived out of an estate tail. Lord Coke exemplifies by the case where tenant in tail bar- gains and sells to W. H. and his heirs ; where W. H. takes an estate in fee simple, as long as the tenant in tail has heirs of his body, derived out of the estate tail. See also Walsingham's case, Plowd. 557 ; Willion V. Berkley, ibid. 241. r2 244 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. it is laid dovm by Lord Coke that in the latter respect, both fees qualified and fees conditional are equivalent to fees simple absolute (y). 1. The first (or fee simple absolute} requii-es no jparti- cular remark ; the two others involve considerations of greater intricacy. 2. [A base (or quahfied) fee is such a one as has a quali- fication subjoined thereto, and wliicli must be determined •whenever the qualification annexed to it is at an end (z). As^ in the case of a grant to A. and his heirs, tenants of the manor of Dale ; in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entu'ely defeated. So, when Henry the sixth granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle ; — here John Talbot had a base or qualified fee in that dignity, and the instant he or his heirs qioitted the seigniory of this manor, the dignity was at an end (a).] This estate is a fee simple, because it is limited to the heirs general, and may by possibihty endure for ever ; yet, as that duration de- pends upon the conciuTcnce of collateral circumstances, which quahfy the donation, it is therefore not an absolute, but a qualified or base fee (b). 3. A conditional fee seems properly to comprise every fee simple granted upon condition (c), but the term is usually (y) Co. Litt 18 a. as a determinable fee derived out {%) As to these fees, see Lord of an estate tail ; vide sup. p. 243, Cardigan v. Armitage, 2 Barn. & note {x). And in the Act for Abo- Cress. 202. lition of Fines and Recoveries, 3 & (a) Co. Litt. 27 a. 4 Will. 4, c. 74, its meaning is by (6j It is proper to observe, with express provision confined (so far as respect to this term of base fee, that that act is concerned) to the estate it has usually a more restricted ap- created by the alienation of the plication, viz., to that species of tenant in tail where the issue are qualified fee which is created where barred, but those in remainder or tenant in tail conveys his estate by reversion are not. bargain and sale to another and his (c) Edward Seymour's case, 10 heirs, and which Lord Coke describes Rep. 97 b. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 245 understood to refer to that partlctdar species called a con- ditional fee at the common law. [A conditional fee at the common law, was a fee re- strained] in its form of donation [to some particular heirs, exclusive of others : " donatio stricta et coarctata (d) ; sicut certis hcBredibus, quibusdam a successione exclusis :'''' as to the heirs of a man's body, by which only his lineal descend- ants were admitted, in exclusion of collateral heirs ; or, to the heirs male of his body, in exclusion both of collaterals and lineal females also (e).] We say restrained in the form of donation ; because, in point oFlegal effect, such a gift was construed by the judges of former days, as con- ferfihg not merely an estate descendible to parti cidar heirs, but ^ Tee simple, though a fee s imple subject to condi- tion (jO. For they held that a gift to a man and the heirs of his body [Avas a gift upon condition that it should revert to the donor, if the donee had no heirs of hisT)ody {g).'\ They therefore called it a fee vsimple, on condition that he had issue. [So that, as soon as the grantee had any issue born, his estate was supposed,] by the performance in some sense of the condition (^), to be- come absolute ; at least for these three pm-poses: — 1. [To enable the tenant to aliene the land, and thereby to bar not' only his own issue, but also the donor of his interest in the reversion (i). 2. To subject him to forfeit it for treason, which he could not do, tiU issue born, longer than {d) Flet. 1. 3, c. 3, s. 5. 1) ; Willion v. Berkley, Plowd. 241. (e) Blackstone remarks here, (vol. (/») It was performed, says Lord ii. p. 110,) that there are strong Coke, "to some intent;" (Nevil's traces of such particular limitation case, ubi sup.) in our earliest Saxon laws, from («) " The reason thereof," says which he cites the following : — " Si Lord Coke, " was, because he having quis ierram hareditariam haheat, earn " a fee simple, and having issue, his non vendat e cognatis hcBredibus suis, " issue could not avoid the aliena- si illi viro prohibitum sit, qui earn ab " tion, because he claimed fee sim- initio acquisivit, ut ita facere iie- " pie, whereof his father might bar queat." — LI. iElfred. c. 37. " him." Nevil's case, ubi sup. ; Co. (/) Nevil's case, 7 Rep. 34 b. Litt. 19a; 2 Inst. 333 ; and see Doe ig) Stat, de donis, (13 Edw. 1, c. v. Clark, 5 B. & Aid. 461. 246 BK. II. or KIGHTS OF mOrERTY. — PT. I. THINGS REAL. [for liis OAvn life ; lest thereby the mlieritance of tlie issue, and reversion of tlie donor, might have been defeated (A). 3. To~empower him to charge the land T\ith rents, com- mons, and certain other incumbrances, so as to bind his issue (Z)« And this was thought the more reasonable, be- cause, by the birth of issue, the possibiHty of the donor's reversion was rendered more distant and precarious : and his interest seems to have been the only one wliich the law, as it then stood, was solicitous to protect, without much regard to the light of succession intended to be vested in the issue. However, if the tenant didnot^in fact aliene the land, the course of descent was not altered b^ this perfomiance of the condition (m) : for if the issue had after- wards died, and then the tenant or original grantee had died without making any alienation, the land,] by force of the condition, [must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fees- simple took care to alTehe as soon as they had performed the condition by havmg issue ; and afterwards re-pur- chased the lands, which gave them a fee simple absolute, that would descend to the heirs general, according to the coiu'se of the common law. And thus stood the old Islw with regard to conditional fees :] a subject of no_^eat practical importance, this land of gift ha\dng been long since constru ed (as we shall presently see) in a difterent manner . But, as Lord Coke observes (w), these things, [though they seem antient, are yet necessary to be knoAvn ; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such-like in- heritances, as are not within the statutes of entail (o), and therefore remain as at the common law.] (k) Co. Litt. 19a; 2 Inst. 334. (o) As to the things capable of {I) Co. Litt. 19 a. being entailed, see Co. Litt. by {m) Nevil's case, 7 Rep. 31 b ; Harg. 20 a, n. (3), n. (5); Moore v. Willion V. Berkley, Plowd. 247. Lord Plymouth, 7 Taunt. 614. {n) Co. Litt. 19 a. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 247 II. The subject of conditional fees leads us, by a natural introduction, to our second general division of estates of inheritance (p) — namely, estates in fee-tail, or, as they are more concisely termed, estates tail. An estate tail {g) is that which a man hath to hold to him and the heirs of his body, or to him and particular heirs of his body ; being, as to the form of donation, the same kind of estate that Ave have just been considering luider the name of fee-simple conditional (r) ; for in that hght, as we have seen (s), it was at first contemplated. But by force of the statute to be presently mentioned, and of the judicial construction which that statute received (t), another character has been long attached to it in point of legal effect : — viz. that of an estate tail ; the incidents or consequences of which are very different from those of a fee conditional. The history of the change is as follows : — [The inconveniences which attended a Kmited and fet- tered inheritance were probably what induced the judges to give way to the subtle finesse of construction (for such it imdoubtedly was,) by which the dispositions in question were construed as conditional estates in fee simple (m). But, on the other hand^ the nobility (who were willing to pei^pe- tuate their possessions in their ovpn families), in order to put a stop to thispractice, prociu-ed the statute of Westminster the second (x), commonly called the statute De donis con- ditioriaTibus, to be" made ; which paid a greater regai'd to the private will and intentions of the donor, than to the (p) Vide sup. p. 238. " possibility, viz. if the donee and {q) As to this estate, see Co. " his issue also should die without Litt. 18b — 28 b. " issue; 2, if he, having a fee sim- (r) Willion v. Berkley, Plowd. " pie, should not have power after 237. " issue to aliene, it would be in a (s) Vide sup. p. 245. " manner a perpetuity, and a re- {t) 2 Inst. 335. " straint of alienation for ever, which (m) "The policy of the law," says " the common law for many causes Lord Coke, "was to give power, " will not suffer." (Nevil's case, 7 " after issue, to aliene for two causes Rep. 34 b.) " — 1, that the estate of a purchaser (.r) 13 Edw. 1, (stat. ],) c. l,m;ide " should not be avoided by a remote a.d. 1285. 248 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [propiiety of such intentions, or any public considerations whatsoeverT]' This statute enacted that from thenceforth the will of the donor be obsen^ed secundum formam in carta doniexpressam ; and that the tenements so given (to a man and^he heirs of his body, or the heirs male of his body^ or the like) sliould, notwithstanding any alienation bv the donee, go to his issue, if there were any ; or, if issue failed, should revert to the donor or his heirs. [Upon the construction of this act of parhament, the judges detennined that the donee had no longer a_ con- ditional fee-simple ; but they di\aded the estate into two parts (y), lea^ang in the donee a new kind of particidar estate, which they denominated si fee-tail (z) ; and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue (a). And hence it is that Littleton tells us (6), that tenant in fee-tail is by \artue of the statute of Westminster the second.] This expectant estate or reversion of the donor, is con- sidered as of a different natiu-e from the right which be- longed to the donor of a fee conditional: for his reverter was only in possibility, being dependent on the contingency of the estate's determining by force of the condition (c); (y) 2 Inst. 335 ; Willion v. Berk- " viz. a fee tail." (Willion v. Berk- ley, Plowd. 241 ; Butler's Fearne, ley, ubi sup.) 382, (n.), 9th edit. "When the (a) The expression /ee ^atV or /eo- " statute," says Dyer, C. J., "re- (/urn /a/Ziaf«m, was borrowed from the " strained the donee from aliening feudists ; (see Craig, 1. 1, t. 10, s. 24, " the fee simple or from doing other 25;) among whom it signified any " acts which he that has a fee simple mutilated or truncated inheritance; " may do, it was presently taken being derived from the barbarous " that the fee was not in him ; for it verb taliare, to cut ; from which the " would be idle to adjudge it in him French tailler and the Italian tag- " when he could not do any thing Hare are formed. — Spelm. Gloss, ad " with it ; and therefore it was taken verb. Feodum. " by collection and implication of (a) 2 Inst. 335. " the act, that the fee simple con- (b) S. 13. " tinued in the donor : so that he (c) 2 Inst. 335 ; Co. Litt. 22 a. '' has one inheritance, viz. a fee See the remarks on this subject in " simple, and the donee has another Bac. Abr. tit. Remainder and Re- " inheritance of an inferior degree, version. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 249 but the reversion of the donor of an estate tail is the residue of the fee, and therefore a fixed or vested interest. By the exj^ress pro^-ision of the statute De donis, the ahenation of the tenant in tail was not to defeat the suc- cession of the issue, or the reversion of the donor and his heirs. It was not, however, other^vise restrained; nor was his ahenation a void act, — for his leases, though liable to be defeated after his death by those claiming under the entail, were in other respects effectual ; and if he conveyed his estate to another and his heirs, the alienee took a hase feejd^, that is to say, a fee-simple to hold as long as the tenant in tail Hved or had heirs of his body. But this estate was determinable on the death of the tenant in tail and the failiu-e of his issue ; and even on his death, might be avoided by the entry of the issue (e). [Estates-tail are either special or general. Tail-general is where lands and tenements are given to one and the he irs of his hody hegoiien : which is called tail-general, because, how often soever such donee in tail be married, his issue in general, by all and eveiy such marriage, is, in successive order, capable of inheriting the estate-tail jaer formam doni{f). Tenant in tail-special is where the gift is restrained to] the heirs of the donee's body by a j)ar- ticular person ; [as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten; here no issue can inherit, but such special issue as is engendered between them two ; not such as the husband may have by another wife : and therefore it is called special tail. And here we may observe that the (d) Vide sup. p. 244. tail in possession, if made by certain (e) Co. Litt. by Butler, 331 a, n. modes of conveyance, was a discon- (1) ; Machell v. Clarke, Ld. Raym. tinuance, which took away the entry 778; Salk. 618, S. C. ; Seymour's of the issue (Co. Litt. 328 a ; 2 Inst, case, 10 Rep. 97 b; Walsingham's 335) ; as to which, vide post, bk. ii. case, Plowd. 557; Goodriglit v. pt. i. c. xix. Shilson, Burr. 1703. An alienation (/) Litt. ss. 14, 15. of the land, however, by tenant in 250 BK. TI. OF RIGHTS OF PROPERTY. — PT. I. THINGS UBAL. [words of inheritance (to him and his heirs) give him an estate in fee ; but they being heirs] of his body, pliis makes it a fee-tail; and the person being also limited on whpm such heirs shall be begotten, (viz. Mart^ his present wife) this makes it a fee-tail special. Estates in "general" and '^special" tail, are fiu'ther diver- sified bj the distinction of sexes in such entails ; for bothjof them may either be in tail male or tail Jemale. As if lands be given to a man and his heirs male of his body begotten, this is an estate in tail male general ; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And in case of an entail male, the heirs female shall never mherit, nor any derived from them ; nor e converso, the heirs male, in case of the gift in tail female {g). Thus, if the donee in tail male hath a daughter who dies lea^vdng a son, such grandson in tliis case cannot inherit the estate-tail ; for he cannot deduce his descent wholly by heirs male (h). And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates-tail, the one in tail male, the other in tail female ; and he hath issue a daughter, which daughter hath issue a son ; this grandson can succeed to neither of the estates ; for he cannot convey his descent wholly either in the male or female line (i). As the word heirs is necessary to create a fee, so in fiirther imitation of the strictness of the feudal donation, the word body, or some other words of procreation (A), are ne- cessary to make it a fee-tail, and ascertain to what heu's in particular the fee is limited. If therefore either the words of inheritance or words of ^procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As if the grant be to a man and the issue of his body, to a man and his seed, to a man and his children (g) Liu. ss. 21, 22. (i) Co. Litt. 25 b. {h) Ibid. s. 24 ; Co. Litt. 25 b. (k) Beresford's case, 7 Rep. 40, CHAP. III. — OF FEEEHOLD ESTATES OF INHERITANCE. 25 1 [or offspring ; all these are only estates for life, for there are wahthig the words of inheritance, "his heirs" (/). So, on the other hand, a gift to a man and his heirs male, or heirs female, i& an estate in fee-simple, and_^not in fee-tail; for there are no words to ascertain the body out of which they shall issue ;] which is indispensable to an estate of the latter description (m); and every estate in fee, which is not in tail, must of necessity be fee-simple (n), as all fees consist either of one kind or the other (o). Upon such a gift too, as last supposed, heirs both male and female shall inherit (jo); for a descent in fee-simple is inconsistent (by our definition (q) ) with a restriction to heirs of either sex. It is to be ob- served, however, that in last wills and testaments a greater indulgence is allowed as to the manner of expounding the donation (r)l and In tliese instnmients therefore [an estate- tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of expression (s)^ sufficient to indicate an intention^to re- strain the inheritance to the descendants of the devisee. [There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law ; which are estates in libera maritagio, or frankmar- riage.'\ These are defined to be, where tenements are given to aT^man, on his marriage with the daughter or cousin of the donor, to hold in frankmarriage (t). [Now Iby such gift, though nothing but the word franh- marriage is expressed, the donees shall have the tenements to them and the heirs of their two bodies begotten ; that is, they are tenants in special tail. For this one word, (?) Co. Litt. 20 ; Frogmorton v. (o) Vide sup. p. 238. Wharrey, 2 W. Bla. 728; 3 Will. {p) Co. Litt. 27 b. 125, 144, S. C. {q) Vide sup. p. 238. {m) Litt. sect. 31 ; Co. Litt. 7 a; (r) Vide sup. p. 242. Abraham v. Twigg, Cro. Eliz. 478 ; (s) Co. Litt. 9 b, 27 a; see Mellish Earl of Oxford's case, W. Jones, v. Mellish, 2 B. & Cr. 520 ; Doe d. 105. But if the grant be by the Jearrad v. Bannister, 7 M. & W. Crown, such grant is void. — Ibid. 298; Good v. Good, 7 El. & Bl. 295. Co. Litt. 27 a. (0 Litt. s. 17. («) Co. Litt. 27 b. 252 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. \_frankmarriage, does ex vi termini not only create an inheritance, like the v^ordi frankalmoign, but likewise liraits that inTieritance ; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no sersdce but fealty ; for a rent reserved thereon is void, until the fourth degi'ee of consanguinity be passed between the issues of the donor and donee {t).'\ We have seen that lands cannot now be conveyed in fee- simple to be holden of the grantor ; but that the teniu'e must be of him to whose seigniory the fee belongs (m). It is otherM^se, however, with respect to a gift in tail. For if a tenant in fee-simple grants an estate tail out of it, (the reversion remaining in the donor,) the donee in tail shall hold of the donor, by fealty and such other ser^dces as may be reserved ; or if none be reserved, then by fealty and such other sen-ices as the donor himself renders to the next lord paramovmt (x). But the tenm-e thus created between the donor and donee in tail, differs from that between the tenant in fee-simple and the chief lord ; the latter being described as a perfect, the former as an imper- fect tenure {y). [Thus much for the nature of estates tail: the establish- ment of which family law, as it is properly styled by Pigott {z), occasioned infinite difficulties and disputes (a). Children grew disobedient Avhen they knew they coidd not be set aside : farmers were ousted of their leases made by tenants in taU; for if such leases had been valid, then under (0 Liu. ss. 19, 20. The reason 93 a, 143 a, 68 b, n. (5), by Harg. ; given by Littleton is, that after the 2 Inst. 505 ; Willion v. Berkley, fourth degree the issues of the donor Plowd. 237; Bingham's case, 2 and donees were capable by the law Rep. 92 b. Before the statute of of the church of intermarrying. As Quia emptores, the rule was the same to the prohibited degrees in marriage, as to alienations in fee simple, (2 according to the different modes of Inst. 501.) computation in the civil and the (y) Co. Cop. s. 31. canon law, vide post, bk. ii pt. ii. («) Com. Recov. 5. c. VII. ; bk. III. c. II. (a) Chudleigh's case, I Rep. («) Vide sup. p. 239. 131 b. (j) Litt. s. 19; Co. Litt. 23 a. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 253 [colour of long leases tlie issue might have been vii-tually disinherited : creditors were defrauded of their debts ; for if tenant in tail could have charged his estate -with theii* pay- ment, he might also have defeated his issue, by mortgaging it for as much as it was worth : innmnerable latent entails Avere produced to deprive pm-chasers of the lands they had faii-ly bought ; of suits in consequence of which our antient books are full : and treasons were encoiiraged ; as estates- tail were not hable to forfeitiu'e longer than for the tenant's life. So that they were justly branded as the source of new contentions and mischiefs iuiknoA\Ti to the common law, and almost universally considered as the common gr ievanc e of the realm (b). But as the nobihty were ahvays fond of the statute De donis, because it presei-^'cd their family estates from forfeiture, there was little hope of pro- ciuing a repeal by the legislature ; and therefore, by the connivance of an active and pohtic prince, a method was debased to evade it. Nearly two hundred years intervened between the making of the statute De donis and the application of common recoveries to this intent, in the twelfth year of Edward the fourth (c)yTN'hich were then openly declared by the judges to be a suificient bar of an estate tail {d). For though the coiu-ts had, so long before as the reign of Edward the third, Yexy frequently hinted their opinion that a bar might be effected upon these principles (e), yet it never was earned into execution, till Edward the fourth, observing (in the disputes between the houses of York and Lancaster) how Kttle effect attainders for treason had upon families, whose estates were protected by the sanctuary of entails,] con- trived (/), that Taltarum's case should be brought before (6) Co. Litt. 19 b; Hunt i;. Gate- Rep. 37, 38. ley, Moor, 156; Mary Portington's (/) Pigott, 8. Blackstone (vol. ii. case, 10 Rep. 38. p. 117) says he suffered it to be (c) A.D. 1472. brought, but the expression of Pi- (), that is, any (l) Vide sup. p. 147. (o) See 2 BI. Com. 35. (m) Vide sup. p. 252. (p) As to waste, see further post, (n) Co. Litt. 143 a, 23 a, 93 a. bk. v. c. viii. See also 19 & 20 Vict. 68 b, n. (5), by Harg.; Litt. s. 132. c. 120, ss. 2, 11, enabling the Court CH. IV. — OF FREEHOLD ESTATES NOT OF IXHERIT.AACE. 263 spoil and clestniction wliicli he does, or alloAvs to be done, to the premises during his tenancy, to the injiuy of the person entitled to the inheritance ( 5'). A nd there ar e two kinds of waste, either voluntary or 2)er missive ; the first by the tenant's voluntary act, as where he pulls down a wall, or cuts dowTi timber ; the other by his default, as by suffering a wall to fall down for want of necessary repair (r). Estates for life or years are sometimes made, however, watFan exp ress clau se^ that the tenant shall hold the land without impeachment of waste; which has the effect of re- lieving him (generally) fi'om this restraint (s). 2. A person entitled to the possession of any settled estate, as tenant for life, or for term of years determinable wdth his life, or for any gi'eater estate, — either in his own right, or in right of his wife, — is now enabled by the pro- \dsion of statute 19 & 20 Vict. c. 120, before mentioned (t), to make effectual leases of the same, or any pai-t thereof, unless the settlement contains an express declaration to the cohtraiy ; but subject to such exceptions and provi- sions as in the statute contained, and for a term not ex- ceeding twenty-one years (m). 3. [Tenant for life, or his representatives, shall not be preju diced by the determination of his estate,] where such of Chancery in certain cases, and 10 b; Pyne v. Dor, 1 T. R. 55 ; Ash- subject to certain conditions, to au- ton r. Ashton, 1 Ves. sen. 254; Bur- thorize leases of settled estates for gess y. Lamb, 16 Ves. 174; Lush- any purpose, whether involving ington v. Boldero, 6 Madd. 149 ; v?aste or not; or a sale of such Morris v. Morris, 15 Sim. 505; 1 estates or of any timber (not being Fonb. Eq. 33, n. ornamental timber) growing thereon. (t) Sup. p. 257. (q) Co. Litt. 53 ; 2 Bl. Com. 281 ; (w) 19 & 20 Vict. c. 120, s. 32. 3 Bl. Com, 223. As to the meaning of the terms (r) As to the liability of tenant '* settlement " and " settled estate " for life for permissive waste, see for the purposes of this Act, and the Chitty's General Practice of the date of the settlements to which it Law, vol. i. p. 38G. applies, vide sup. p. 258, n. {t) and (s) See Herlakenden's case, 4 n. (u). Rep. 63 a; Dowman's case, 9 Rep. 264 BK. TI. OF RIGHTS OF PROrEETy. — PT. I. THINGS REAL. deteiTnination is sncTdoii mid unforescGn. [Therefore, if a tenant for liis own life sows tlie lands, and dies before hai'vest, his executors s hall have the emblements (x), or pro- fits of the crop : for f he estate was determined by the act of God (y). The representatives therefore of the tenant for life shall have the emblements, to compensate for the labour and expense of tilling, maniunng, and sowing the lands, — and also for the encoiu'agement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost secm-ity and privilege that the law can give it. "VVlierefore, by the feudal law, if a tenant for life died between the beginning of September and the end of February, the lord, who Avas entitled to the reversion, Avas also entitled to the profits of the whole year ; but if he died between the beginning of March and the end of August, the heirs of the tenant received the whole {z). And fifom hence our law of emble- ments seems to have been derived, but Avith very con- siderable improvements. So it is also, if a man be tenant for the life of another, and cestui que vie, or he on Avhose lifethe land is held, dies after the com sown ; — the tenant pur autre vie shall haA^e the emblements. The same is also the nde, if a life estate be determined by the act of law. Therefore, if a lease be made to husband and Avife during coverture (which gives them a determinable estate for life), and the husband soavs the land^ and afterAA-ards they are divorced, the husband shall have_the emblements in this case ; for the sentence of divorce is the act q£ law (a). But if an estate for life be determined by the tenant's own act, (as by forfeiture for waste committed, (x) As to emblements generally, 634 ; Cooper v. Woolfit, 2 H. & N. see Co. Litt. 55 a, 55 b; Graves v. 122. Weld, 5 Barn. & Ad. 105 ; Davis v, {y) Blackstone notices here, by Eyton, 7 Bing. 154. As to emble- way of additional reason, the maxim ments as between the exentor and that actus Dei 7iemini facit injuriam. devisee, see Shep. Touch, by Preston, (2 BI. Com. p. 122.) p. 472 J Williams on Executors, p. (z) Feud. 1. 2, t. 28. (a) Gland's case, 5 Rep, 116. CII. IV. — OF FEEEHOLD ESTATES NOT OF INHERITANCE. 265 [or if a tenant diu-ing Avlclowhood tliinks proper to marry,) in these, and similar cases, the tenants, ha^one thus de- termined the estate by their o"uti acts, shall not be entitled to take_the_j!mblements(5). The doctrine of emblements extends^ not only to com sown, but to roots planted, or other annual artificial profit ; but it is otherwise of fimit trees, grass, and the like, Avhich are not planted an- nually at the expense and labour of the tenant, but are either a permanent or natiu-al profit of thie^ earth (c). For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit ; but merely with a prospect of its being usefiil to himself in ftitiu-e, and to fiitiu'e successions of tenants. The advantages also of emblements are jjarticvdarly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11. For aU per- sons who are presented to any ecclesiastical benefice, or to any ciril office, are considered as tenants for their own lives, unless the contrary" be expressed^ in the form jof draiation. 4. A fourth incident to estates for life relates to the under-tenants or lessees. For] by the common law [they have the sahie, nay greater indulgences than their lessors, th e original t enants for life. The same, for the law of estovers and emblements, Avith regard to the tenant for life, is also law with regard to liis under-tenant, who re- presents him and stands in his place {d) : and_greater, for in those cases where tenant for life shall not have the em- blements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As in the case of a woman who holds durante viduitate : her taking husband is her o^\u act, and there- fore deprives her of the emblements ; but if she leases her estate to an imder-tenant, who sows the land, and she then (i) Knevett v. Pool, Cro. Eliz. Abr. 728. 461 ; 1 Roll. Abr. 727. (d) Co. Litt. 55 b. (c) Co. Litt. 55 a, 55 b ; 1 Roll. 266 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. [marries, tliis her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her (J).] And as regards tenants at rack rent (c), hold- ing fjmns or lands under landlords entitled for life or other uncertain interest, the statute law has noAV provided a still more ample jn-otection; it being^ enacted by 14 & 15 Vict. c. 2o, s. 1, that where in such cases the lease or tenancy shall determine by the death or by cesser of the estate of the landlord, the tenant shall, instead of claims to emblements, continue to hold until the expira- tion of the then current year of his tenancj^; and shall then quit upon the terms of his lease or holding, in the same manner as if his tenancy were determined by ef- fluxion of time or other laAMful means during the continu- ance of his landlord's estate : and the succeeding owner shall be entitled to recover, (as the landlord could have done if his interest had continued,) a fair proportion of the rent for the period elapsed from the termination of the landlord's interest to the time of quittmg: and the suc- ceeding OAvner and tenant respectively shall be entitled, as against each other, to all the benefits, and be subject to the terms, to which the landlord and tenant respectively would have been entitled or subject in case the tenancy had determined in manner aforesaid at the expiration of such ciuTent year: pro^-ided always, that no notice to quit shall be necessary or required by or from either party to determine any such holding and occupation as aforesaid. [The lessees of tenants for life had also, at the conmion law, another most unreasonable advantage ; for, at the death of their lessors, the tenants for life, these under- tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the laj^ quarter-day, or other day assigned for payment of rentja). T o remedy which it is enacte d by 11 Geo . II. (b) Co. Litt. 55 b. c. xxiii. (c) As to the nature of tenancy (d) Clun'scase, 10 Rep. 127. at rack rent, vide post, bk. ii. pt. i. CH. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 267 [c. 19, s. 15(e), that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a rateable proportion of rent, from the last day of payment to the death of such lessor:] and also by 4 & 5 Will. 4, c. 22 {f), that where any lease sliaU determine on the death of the person making the same (though he may not have been strictly tenant for life ); or on the expiration of the life or lives for which he was entitled ; — a proportion of the rent shall in like manner be recoverable by his executors or ad minist rators, or by him- self, as the case may Ijc ((/). II. [The next estate for life is of the legal kind, as con- tradistingiiished fi'om conventional : viz. that of tenant in tall after the possibiliti/ of issue extinct (h). This happens where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue ; or, having left issue, that issue becomes extinct : in either of these cases the sm'vi\ang tenant in sj^ecial tail becomes tenant in tail after possibility of issue extinct. As where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue (^) : in this case the man has an estate tail, which cannot possibly descend to any one ; and therefore the law makes use of this long periphrasis as absolutely necessary (e) See Jenner v. Morgan, 1 P. cupier, obtain leave to effect such Wms. 392; Ex parte Smith, 1 improvements, and have the expense Swans. 337. thereof charged on the inheritance. (/) See Lock v. De Burgh, 15 (See also 9 & 10 Vict. c. 101 ; 10 & Jur. 9()1. 11 Vict. c. 11 ; 11 & 12Vict. c. 119; (g) As to tenants for life, or for 12 & 13 Vict. c. 100; and 13 & 14 years determinable on life, and some Vict. c. 31.) persons under particular disabilities, (h) As to the estate of tenant in it is (for the particular purpose of tail after possibility of issue extinct, facilitating improvements by way of see Co. Litt. 27 b — 28 b ; Lewis drainage) j)rovid('d by 8 & 9 Vict. c. Bowles's case, 11 Rep. 79 b ; Wil- 56 (repealing and re-enacting, with liams v. Williams, 12 East, 209 ; 15 alterations, 3 & 4 Vict. c. 55), that Ves. 419 ; Piatt v. Powles, 2 Mau. they may, by petition to the Court & Sel. 65, of Chancery and consent of the oc- (i) Litt. s. 32. 268 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [to give an acleqnate idea of his estate. For if it had called him barely tenant in fee-tail special, that woiild not hare distinguished him from others ; and besides he has no longer an estate of inheritance, or fee (A), for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only re- lated to tlie present fact, and Avoidd not have excluded the possibility of fritiu'e issue. Had he been styled tenant in tail without possihility of issue, this would exclude time past as well as present, and he might under this descrip- tion never had any possibility of issue. No definition therefore could so exactly mark him out as this of tenant in tail after possibility of issue extinct, which, (with a precision peculiar to oiu* own law,) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone. This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to springy; for no limitation, conveyance, or other human act, can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the mheritance once vested in them (J). A possibility of issue is always supposed to exist in law, unless ex- tinguished by the death of the parties; even though the donees be each of them an hmidred years old(w). TEis^estate is of an amphibious natm-e, partaking partly of an estate tail, and partly of an estate for life.] For besides the name of tenant in tail, the tenant is so far in the condition of a tenant in tail properly so called, as to be dispunishable, (that is, not answerable,) for waste {n) ; (A-) Bowles r. Berrie, 1 Rrll. Rep. (m) Co. Litt. 28 a. 184; Lewis Bowles's case, 11 Rep. (w) Co. Litt. 27 b ; see Whitfield 80. V. Bewitt, 2 P. Wms.240 ; Williams (0 Co. Litt. 28 a. v. Williams, 12 East, 209. CH. IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. 269 and he formerly possessed some other of the privileges of a tenant in tail, connected with branches of the law which have now become extinct (o). But, on the other hand, his estate in a general point of view, has always been con- sidered as equivalent to an estate for life only (p) ; and therefore the law permits a tenant in tail of this descrip- tion and an ordinary tenant for hfe, to make mutual aheua- tion of their estates, by that particular method of convey- ance called an exchange; which can take place, as we shall see hereafter (q), only in the case of estates that are equal in their natm-e. III. An estate bj/ the curtesy of England (r), is that to which a man is by law entitled, on the death of his wife, in the lands and tenements of which she was seised, diu-- ing tlic man-iage, in fee simple or fee tail; provided he had issue by her born ahve during the marr iage , and cap a- ble of inheriting her estate : in this case he shall, on the death of his wife, hold the lands for hisTHeTas tenant by the ciu'tesy of England (s). If the lands, however, be in gavelkind, the rule is so far different that he shall hold no more than a moiety, and that only while he Hves unmar- ried ; and, on the other hand, his title attaches whether he had issue born or not^(^). This estate is said, in the Mirrour (u), to have been in- troduced by King Henry the first; and, notwithstanding its appellation, was not pecuhar to this realm (x): [for it (o) Co. Litt. 27 b ; Lewis Bowles's Hams, 45 n. (5), 46, n. (q), 382 a, b ; case, 11 Rep. 80 a. Buckworth v. Thirkell, 3 Bos. & (p) By 19 & 20 Vict. c. 120, s. 1, Pul. 652, n. it is expressly provided, that a tenant (s) Ibid. in tail after possibility of issue ex- (t) Robins. Gavelk. bk. ii. c. 1 ; tinct, shall be deemed a tenant for and see Co. Litt. 30 a. life for the purposes of that Act. (a) Cap. 1, s. 3. (q) As to an exchange, vide post, (i) It is said by Blackstone (vol. bk. II. pt. I. c. XVII. ii. p. 126, citing Craig, 1. 2, t. 19, s. (r) As to an estate by the curtesy, 4) to have also obtained in Scotland, see Co. Litt. 29a — 30b ; Menvill's where it Vias ailed Curlalitas; (see case, 13 Rep. 23 ; 2 Saur.d. by Uil- also Co. Liit. 30 a.) And Blackstone 270 BK.II. or RIGHTS OF PKOPEETY. — PT. I. THINGS REAL. [also appears to have obtained in Normandy (y ) ; and Avas likewise used among the antient Almains or Germans (z). And yet it is not generally apprehended to have been a consequence of feodal tenure (a), though some substantial feodal reasons may be given for its introduction. For if a woman seised of lands hath issue by her Imsbaud, and dies, the husband is the natural guardian of tlie child, and as such is in reason entitled to the profits of the lands in order to maintain it ; for which reason the heir apparent of a tenant by the curtesy, could^ notHbie in ward to the lord of the fee dm-ing the life of such tenant (6). As soon therefore as any child was bom, and the father began to have a permanent interest in the lands, he became one of the pares^curtis, did homage to the lord, and j\^a_s_called tenant by ihQcmte&jJ^nitiate; and this estate, bein^ once vested in him by the bu*th of the child, was not suffered to determine by the subsequent death or coming of age of the infant.] It may be proper to add that he was con- sidered to hold not of the infant, but of the next lord of the fee (c). [There are foiu- requisites necessary to make a tenancy by the cmiesy : mamage, seisin of the ^\i^e, issue {d), and death of the A\afe(e):] — 1. The marriage must be legal; hence infers that probably our word the consnetudo et lex AngUce. But curtesy signified an attendance by though the term may have been de- the husband on the lord's court, (or rived from a notion that the estate curia,) in capacity of his vassal or was peculiar to the law of England, tenant in respect of the wife's land. it is clear that the supposed pecu- Tenant by curtesy is said, however, liarify did not in fact exist, by Littleton, to be so called, "be- (y) Grand Coustum. c. 119. " cause this is used in no other realm (z) Lindenbrog. LL. Alman. t. 92. " but in England only," (Litt.s. 35.) (a) Wright's Ten. 194, And the manner in which he is de- (b) F. N. B. 143. scribed in the old pleadings, " Te- (c) 2 Inst. 301 ; Paine's case, 8 7iaunt per lei d' Eiigleterre," (Year- Rep. 36 (a). Book, Trin, 1 Edw, 2,) seems to (d) The requisite of "issue," does confirm that etymology. See also not exist in lands held in gavel- Co. Litt. by Harg. 33 a, n. (5), and kind, vide sup. p. 269. the Patent Roll, of Hen. 3, there (e) Co. Litt. 30 a. cited, which speaks of this estate as CH. IV. — OF FEEEHOLD ESTATES NOT OF IXHERITAKCE. 271 SO that if either void ipso facto, or avoided by a divorce, no'^tate by the ciu-tesy can in either case be claimed (y). 2. [The seisin of tlie ^vife must be an actual seisin, or possession, of the lands: not a bare right to possess, which is a scishi in law, but an actual possession, which is a_seisin in deed {g). 3. The issue must be bom alive. Some have had a notion that it must be heard to cry, but that is a mistake. Crying, indeed, is the strongest evidence of its being bom ahve ; but it is not the only e\4dence (K). The issue also must be bom dm-mg the life of the mother ; for if the mother dies in labour, and the C cesarean operation is performed, the husband in this case shall not be tenant by the curtesy ; because, at the instant of the mother's death, he was clearly not entitled, as ha\"ing had no issue bom, but the land descended to the child while yet in the mother's womb; and the estate being once so vested, shall not afterwards be taken from it (i).] The issue must also be such as is [capable of inherituig the mother's estate (K). Thereloi'e, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the ciu-tesy ; because such issue female can never inherit the estate in tail male(Z). The time when the issue was bom is immaterial, provided it were during the covertui-e : for whether it were born before or after the wife's seisin of the lands, and whether it be H\dng or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the cur- tesy {m). The husband by the birth of the child becomes, as~was before observed, tenant by the curtesy initiate {n), and may do many acts to charge the lands ; but his estate is not consummat e till, 4. The death of the wife, which is (/) See Rennington i;. Cole, Noy, (j) Co. Litt. 29 b, 29. (fc) Litt. s. 52. ig) Co. Litt. 31 a, 29 a. {I) Co. Litt. 29 b. {h) Dyer, 25 ; Paine's case, 8 {m) Ibid. Rep. 34. (n) Ibid. 30 a. 272 BK.II. OF RIGHTS OF PROPERTY. — PT.I. THINGS REAL. [the last requisite to make a complete tenant by tlie cm'- tesy(o}.] To complete oiu* vicAV of tliis species of interest, it must be added that by tlie statute 19 & 20 Vict. c. 120, so often referred to, which enables tenants for life, of settled estates, to make effectual leases for twenty-one years, subject to the exceptions and proAdsions in the act contained, a simi- lar power is also conferred upon tenants by the curtesy of unsettled estates {p). IV. An estate in dower {a), jit the common law, is the portion which a woman, on the death of her husband, is by that law entitled to claim in his lands and tenements (r). Tliis portion amounts to the third part of them (in value) ; and it is to be assigned to her, to hold dm'ing the temi of her natural life ; except the lauds be gavelkind, in which case she is entitled to a moiety ; but subject,_in this instance, to the condition of remaining chaste and un- married (s). [Dower is called in Latin by the foreign jurists doarium, but by Bracton and oiu' EngHsh ^Triters dos : which among the Romans signified the marriage portion, which the Avife brought to her husband ; but with us is implied to signify tliis kind of estate, to which the cIatI law, in its original state, had nothing that bore a resemblance : nor indeed is there anything in general more different than the regulation of landed property, according to the Enghsh and Roman laws. Some (t) have ascribed the introduction of dower (o) Co. Litt. 30 a ; see Jones v. Stoughton v. Leigh, 1 Taunt. 402 ; Davies, per cur., 5 H. & N. p. 779. Ray v, Fung, 5 B. & Aid. 561 ; (p) 19 & 20 Vict. c. 120, s. 32. Moody r. King, 2 Bing. 447; Rex It is conferred also on tenants of v. Northweald Bassett, 4 Dow. & Ry. unsettled estates, in right of a wife 276 , Jones v. Jones, 2 Tyrw. 531. seised in fee. Ibid. (r) Co. Litt. ubi sup. {q) As to dower, see Co. Litt. (5) 2 Bl. Com. 129 ; Robins. 30 b— 41a; Rowe v. Bower, 2 N. Gavelk. bk. ii. c. 2. R. 1 1 Blatter v. Blatter, 1 Bcott, 82 ; {t) Wright's Ten. 192. Colleton V. Gareb, 6 Simon, 19; en. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 273 [to tlie Normans, as a branch of their local tcniu-cs ; thougli we cai inot ex pect any feudal reason for its invention, since it* was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system, (wherein it is called triens, tertia, and dotalitium,) by the Emperor Frederick the second {x), who was contemporary with our King Henry the third. It is possible, therefore, that it might be with us the relic of a Danish custom ; since, according to the historians of that country, dower was in- troduced into Denmark by Swein, the father of om* Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals {y). HoAvever this be, the reason which om' law gives for adopting it, is a very plain and sensible one : viz., for the sustenance of the wife, and the nm-tm-e and educa- tion oriSie younger children {z). In treating of this estate, let us first consider who may be endowed ; secondly, of what she may be endowed ; thirdly, the manner how she shall be endowed ; and fourthly, how dower may be barred^, or otherv^dse defeated. 1. [Who may be endowed. She must be the actual wife of the party at the time of his decease.] If there be a dissolution of the man-iage (or, as it was formerly called, a divorce a vinculo matrimonii), she shall not be endowed ; foviiBi nullum matrimonium, ibi mdla dos (a). But a judi- cial separation (or, as it was formerly called, a divorce a mensa ei thoro) doth not destroy the dower (Z>); no, not even for adultery itself, l)y the common law(c). [Yet now, by the statute of Westminster the second {d), if a woman voluntarily leaves (which the laAv calls eloping (x) Craig, 1. 2, t. 22, s. 9. 33 a.) {y) Mod. Un. Hist, xxxii. 91. (i) Co. Litt. 33 a, 33 b. («) Bract. 1. 2, c. 39, s. 1 ; Co. (c) Sidney v. Sidney, 3 P. Wms. Litt. 30 b. 276. Yet, among tbe antient Goths, (a) Bract. 1. 2, c. 39, s. 4. But an adulteress was punished by the she does not lose her dower merely loss dotalitii et trientis ex bonis mohi- Lecause the marriage was voidable, if libus viri. (Stiernh. 1. 3, c. 2.) there be no actual divorce ; (Co. Litt. {d) 13 Edw. 1 (stat. 1), c. 34. VOL. I. T 274 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [from) lier husband, find lives Avith an adulterer, slie shall lose her dower, unless her husband be voluntarily recon- ciled to her (a). It was formerly held that the wife of an idiot might be endowed (Z>) : but — as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot many, being incapable of consenting to any contract, — this doctrine cannot now take place. By the antient law, the wife of a person attainted of trea- son or felony could not be endowed ; to the intent, says Staunforde (c), that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may : though Britton (d) gives it another turn, viz. that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. IV. c. 12, abated the rigour of the common law in th is p articidar, and_j,llowed the mfe her dower. But a subsequent statute (e) revived this se_verity ag^ainst the widows ^f traitors, who are now barred of their dower, but not the widows j)f felons (/). J Finally, [thejwife^ must be above nine years old at her husband's death, otherwise she shall notJbe^ndowed(^) : though in Bracton's time the age was indefinite, and dower was then only due " si uxor possit dotem promereri, et virum sustinere {h).^^^ 2. We are next to inquire, of what she may be endowed. (a) 2 Inst. 435; see Hethering- marriage, so as to render it a bind- ton V. Graham, 6 Bing. 135. ing engagement, until she is twelve, (i) Co. Litt. 31a. nor a man until he is fourteen years (c) P. C. b. 3, c. 33. of age. (Co, Litt. 33 a.) But even (d) C. 110. an inchoate and imperfect marriage, (e) 5 & 6 Edw. 6, c. 11, s. 13. from which either of the parties at (/) Until a recent period, an alien the age of consent may disagree, will woman, married without the royal be accounted in law, after the death licence to a British subject, could of the husband, as a lawful marriage not be endowed ; Co. Litt. by Harg. quoad dotem ; that is, provided the 31 b, n. (9); but see now 7 & 8 wife was above nine years of age at Vict. c. 66, s. 16. Et vide post, the husband's death. — Ibid, bk. IV. pt. I. c. II. {h) L. 2, c. 39, s. 3. {g) A woman cannot consent to CH. lY. — OF FREEHOLD ESTATES NOT OF INHERITA^X'E. 275 And supposing no act to have been done to defeat or abridge lier riglits, the widow Qs by law entitled to be endowed nf all lands and tenements of which her~nusl)an(l Avas seised in fee simple or fee tail at any time dm-ing the coverture, and of which anj^ issue, which sh e might have had, might_bj possibility have been_he]^ (i). Therefore, if a man seised in fee simple hath a son by his first Avife, and after manies a second wife, she shall be endowed of his lands ; for her issue might by possibihty have been heir, on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body, begotten on Jane his wife ; though Jane may be endowed of these lands, yet if Jane dies, and he manies a second wife, that second wife shall never be endowed of the lands entailed ; for no issue that she could have, could by any possibility inhent them (k). A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable (/) ; for it is not in the wife's power to biing the husband's title to an actual seisin, as it is in the husband's power to do vnth. regard to the wife's lands : which is one reason wiry he shall not be tena ntby the curtesy but of such lands whereof the wife, or he him- se lf in hern ght, was_a ctually se ised in deed(w).] As to the nature, however, of the lands and tenements of which she may be endowed, there are some few cases noticed in our books, where her title~does not^attach : among others, that of a castle maintained for the necessaiy defence of the realm ; for that ought not to l)e divided, and the public must be preferred to the private interest (n). 3. Next, as to the manner in which a woman is to be endowed. There were formerlyfive sj)ecies of dower : 1. [Dower by the comm o n la w^ or that Avhich has been (i) Litt. ss. 36, 53. (m) Co. Litt. 31 a. (k) Litt. s. 53. (n) Co. Litt 31 b ; see Gerard v. (/) See 3 & 4 Will. 4, c. 104, s. 3. Gerard, 3 Lev. 401, T 2 27G BK.IT. OF RIGHTS OF riiOPERTY. — PT. I. THINGS REAL. [already described. 2. Dower hj particular cust om (p) ; as that the wi fe should have half the husband's lands, or in some places the whole, and in some only a quarter.] 3. Dower de la j^Ius belle, of Avlilch no more needs be said than that it was a consequence of the military tenures, and that it was abolished with them {(j). 4. [Dower ad ostium ecclesiajr)) which was where^tenant in jfee simple^of fidl age, openly at the church door, Avliere all mamages were formerly celebrated, after affiance made, and ( Sir Edward Coke in his translation of Littleton adds) troth plighted between them, endowed his_wife with the whole, or such quantity as he pleased, of^ hi^_jands, at the same time specifying and ascertaining the ^me ; on "\vhich the wife, after her hus1)and's death, miglit enter ^^-ithoiit^ftirther ceremony.] And 5. Dower ex assensu patris (y), [which was only a species of dower ad ostium ecclesice, made when the husband's father was alive, paid the son by his consent, expressly given, endowed his wife with parcel of h is father's lands.] But both the latter descriptions of dower, having been abolished by a recent act of parliament, have now (like^Sower de la plus l)elle) ^isap]3 eared fto m ou j sys- terc\{t). We need only cons ider,! tTierefore, the method of proceeding to enforce a claim of dower at the com mon /gw^wl uch of the two that remain is the only usiial species. [By the old laAv, grounded on the feudal exactions, a woman could not Be endowed A^-ithout a fine paid_to the lordy"neither could she many again Avithout his licence, lest sITo should contract herself, and so convey part of the fcucTJ to the lord's^nemy (w\ This licence the lords took care to be well paid for ; and, as it seems, woidd some- times force the dowager to a second marriage, in order to (75) Litt. s. 37. This species ob- belle, Co. Litt. 38 a ; 2 Bl. Com. 132. tains(forexam'.,le)inga!e77-i«f/laiKis, (r) Litt. s. 39. of which the dowre s s take s a moie/i/. (s) Ibid. s. 40. (See Robins, on Gavelk. bkriiTc. 2.) (t) 3 & 4 Will. 4, c. 105. s. 13. (q) See as to dower de la plus (u) Mir. c. 1, s. 3. en. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 277 [gain tlie fine. But to remedy these oppressions, it was provided by Magna Charta {x), that the widoAv shall not be distrained to marry afresh, if she chooses to live without a husband (?/) ; but shall not however marry against the con- sent of the lord ; and^ fm-ther, that nothing shall be taken for nssignnieiit of llie Avidow's dower, but that she shall remain in her husband's capital mansion-house for forty days afler hTs death, during which time her dower shall be assigned. These forty days are called the Avi dew's quaran- tine,^ term made use oFln laAv to signify the numl^er of forty days, whether applied to this occasion or any other (2^). ^ The particidar lands to be held in dower must be as- signed by the heir of the husband, or his guardian {a) ; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the landsTo holden. For the heir by this cnti-y becomes tenant thereof to the lord, and the widow is immedi ate tenant t o the heir (b), by a kind of su])infcudation or und er- tenancy, completed by this investiture or assignme nt : which tenure may still be created notwithstanding th e statute of Quia emptores, b ecause the heir parts not wi th the fee simple, bu t only with an estat e for life T If the heir or his guardian do not assign the Avidow her dower within the te rm oi quarantine, or d o assign it unfairly, she has her remedy at law] by action of dower, [and the sheriff is appointed_to ^ssign it (c). I f the thing of w hich she is {x) Cap. 7. land in England. (f/) Blackstone says it was also {a) Co. Litt. 34 b, 35a. provided that she should " pay no- (&) Gilb. Ten. 173. thing for her marriage." But this (e) Co. Litt. 34 b, 35 a. See fur- seems to be an incorrect interpreta- ther as to the remedy at law, post, tion of the statute; see Reeves's bk. v.c. xi. If the heir (being under Hist. Eng. Law, vol. i. p. 242; Cole- age), or his guardian, assigned more ridge's Blackstone, vol. ii. p. 135, than she ought to have, this was for- n. (15). merly remedied by writ of admea- (2) It signifies, in particular, the surement of dower. (See F.N. B. 148 ; forty days which persons coming Finch, L. 314; stat. Westm. 2, 13 from infected countries are obliged Edw. 1, c. 7.) But this writ is now to wait, before th?y are permitted to abolished. Besides the remedy at 278 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [endowed be divisible, her dower must be set out by metes andHboim^s : but if it be indivisible, sbe must be endowed specially ; as oF tlie third pi-osentation to a church, the third toll-dish of a mill, the third part of thej[)rofits_of an office, the third sheaf of tithe, and the like (c?).] 4. Lastly, we are to inquire how dower may be barred, or other^dse defeated. [A widow may be ban-ed of her dower not only by elopement] and adultery, [divorce, the treason oFher husband, and other disabilities before men- tioned, but also by detaining the title-deeds or evidences of the estate fi'om the heir, mi til she restores them (e).] A woman might also, Avliile fines and recoveries were in force, be barred by these assurances, as she now may by the new method of conveyance appointed by the stat. 3 & 4 WilhlV. c. 74, in substitution for a fine or recovery, in the case of a mari'ied Avoman. And another method of barring djower is Jjyjointure, ^sregulat^d by the stat. 27 Hen. VIII. c . 10 ( jO — a subject on which some fiirther explanation may here be desirable. \_K jointure — which, strictly speaking, signifies a joint estate, limited to both husband and wife(^),] but in its more usual form is a sole estate limited to the wife only expectant upon a life estate in the husband — [is thus de- fined by Sir Edward Coke(/0: — " A competent livelihood " of freehold for the wife, of lands and tenements ; to take " effect presently, in possession or profit, after the decease " of ~tEe husband ; for the life of the w5e at least." This law (which is exclusively in the (e) Anne Bedingfield's case, 9 Court of Common Pleas), the Court Rep. 15 b. of Chancery also exercises a juris- (/) Vernon's case, 4 Rep. 3 b; diction over dower, and will proceed Earl of Buckinghamshire v. Drury, to set it out on the application of 3 Bro. P. C. 492. the widow ; but if her title is dis- {g) See Dennis's case, Dy. 248 a; putcd it must first be established at Vernon's case, ubi sup. Duchess law. See Haddock's Pract vol. i. p. of Somerset's case, Dy. 97 b. 242; Spence's Equitable Jurisdic- (A) Co. Litt. 36 b; seeCresswellu. tion of Court of Chancery, p. 653. Byron, 3 Bro, C. C. 362. {(J) Co. Litt. 32 a. CH. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 279 [description is framed from the piirview of the stat. 27 Hen. VIII. c. 10, before mentioned, commonly called the Statute of Uses, of which we shall speak fully hereafter. At pre- sent it is sufficient to observe, that before the making of that statute the greatest part of the land of England was conveyed to iises, the property or possession of the soil being vested in one man, and the use or profits thereof in another ; whose directions, with regard to the disposition thereof, the former Avas in conscience obliged to folloAv, and migFFhe compelled by a coiu't of equity to observe. Now, though a husband had the use of lands in absolute fee simjjle, yet the wife was not entitled to any dower therein, he not being seised thereof; wherefore it became usual, on maiTiage, to settle by express deed some special estate to the use of the husband'andrhis wife, for their lives, in joint- tenancy or jointure ; which settlement would be a provision for the wife in case she survived her husband. At length the Ktatufce of Uses ordained that such as had the use of lands' should, to all intents and piirjDOses, be reputed and taken to be absolutely seised and possessed of the soil itself. In consequence of which legal seisin, aU wives would have become dowable of such lands as w^ere held to the use of their husbands, and also entitled at the same time to any special lands_that might be settled in jointure, had not the sa me^statute provided] thaf,'upon the husband's making jor procm-ing to be made fsuc h an estate in jointm-e to the wife before man-i age, she shall be for ever precluded fi'om her dower (i). But then these fom- requisites must be punc- tually observed. — 1. The jointure must] be limited to (A) [take effect immediately on the death of the husband. 2. It must be for*"Ker^wn life at least, and not pur autre vie, or for any term of years, or^ other smaller estate. 3. It (0 Vernon's case, 4 Rep. 1, 2. suggested by Mr. Justice Coleridge. (/c) In Blackstone it is said that — Coleridge's Blackstone, vol. ii. it "rrmst take effect, &c." This p. 138. alteration of Blackstone's text is 280 BK. II. OF RIGHTS OF PROFERTY. — FT. I. THINGS REAL. [must be made to herself, and no other in trust Jbr her. 4. It must be made,] and must appear by the deed to be (7), [in satisJEaction of her ■s\-liole dower, and not of aiiyjiar- ticular part of it. If the jointm-e be made to lier after marriage, she has her election after her h usband's death, and may either accept it, or refitse it and betake herself to her doAver at common law; for she was not capable of con- senting to it dm'ing covertiu'e. And if, by any fraud or accident, a jointxire made before marriage (w) proves to be on a bad title, and the jointress is exacted, or tmiied out of possession, she shall then, by the proAasions of the same statute, hare her dower pro taiito at the common law(n). There are some advantages attending tenants in dower that do not extend to jointresses ; and so vice versa, join- tresses are in some respects more privileged than tenants in dower. Tenant in dower, by the old common law, is subject to no tolls or taxes ; and hers is almost t he on ly estate on which, when derived from the king's debtor, the king cannot distrain for his debt, if contracted during the coverture (o). But, on the other hand, a "nndow may enter at once, without any formal process, on her jointm-e land; whereas no small trouble, and a tedious method (0 Tinney t;. Tinney, 3 Atk. 3. dotis nomine acccperunt, tantas ex suis (m) See Beard i'. Nuthall, 1 Yern. bonis, astii?ialione facta, cum dotibus 428. communicant. Hujus omnis pecunia («) Settlements, previous to mar- conjunctim ratio habetztr, fructusque riage, seem to have been in use servantur. Uter eorum vita superavit, among the antient Germans, and ad eum pars utriusque cum fructibus their kindred nation the Gauls, Of superiorum temporum pervenit." The the former Tacitus gives us this ac- dauphin's commentator on Caesar count: — " Dotem non uxor marito, supposes that this Gaulish custom sed uxori maritus affert : intersunt was the ground of the new regula- parentes et propinqui, et mtinera pro- tions made by Justinian with regard bant." (De Mor. Germ. c. 18.) And to the provisions for widows among Ca'sar(De Bello Gallico, 1. C, c. 18) the Romans (see Nov. 97); but has given us the terms of a marriage surely there is as much reason to settlement among the Gauls, as nicely suppose that it gave the hint for our calculated as any modern jointure : statutable jointures. — " Viri, quantas pecunias ab uxoribus (o) Co. Litt. 31 a; F. N. B. 150. CII. IV. — OF FEEEHOLD ESTATES NOT OF INHERITANCE. 281 [of proceeding', is necessary to compel a legal assignment of dower (/?).] So, thongli dower be forfeited by the treason of the husband, or by the wife's elopement and adultery, yet the title to lands settled in jointure remains, in either case, unimpcachcd(^). Independently of the bar by jointure, if the husband makes any provision for his mfe by will or otherwise, in such manner as clearly to indicate an intention that it shall be taken in lieu of dower, she mil be ban-ed of dower by her acceptance, after his death, of the provision so made ; but she is allowed her option whether she Avill accept it or not(r). D ower may also be barred by the husband taking a conveyance of his land in a form pro perly adapted to th at purpose. Of these lo rms there are several, called conve y- a nces to uses to bar dower (s); on which it is imnecessary in this place to say more than they are the contrivance of conveyancers, founded on the Statute of Uses before mentioned, intended to give the husband a clear dominion over the property he purchases, free from future claim of his wife : these fonns being so managed as to vest in him the effective ownership, but not precisely such an estate a s by the mles of law would be subject to dower. While various methods have thus for a long time past existed, in which th e -widow's right was capable of being effectually barred, it was nevertheless, up to a late period of our legal history, secure, if not ban-ed, fi'om liability to be _defe ated by any alie nation that tlie^ husband might think fit to make of the estate ; her title always remaining paramovmt to that of the alienee (^). And while dower retained its original importance, no just objection could be made to this principle, for though it operated as a clog on (p) Co. Litt. 36 b. That is (if her (r) Co. Litt. by Harg. 36 b, n. 1 ; title be disputed) hy actiott of doiver Thompson?;. Nelson, I Cox, 447; (vide sup. p. 277). As to which, Ayres d. Willis, 1 Ves. sen. 230, and see Gen. Index, in tit. " Action of see 3 & 4 Will. 4, c. 105, ss. 9, 10. Dower." (.?) Butler's Fearne, 346 — 349, (-7) Co. Litt. 37 a ; Sidney v Sid- 9th ed. ney, 2 P. Wms. 277. (0 Co. Litt. 32 a. /. 282 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the transfer of property, it was evidently essential to the full protection of the widow's right. B ut at the period to which we refer, that right had lon g sun k into compara- tive insignificance, owing, first, to the facility with which it was cnjiiililc of" l)iitig Imrred: s econdly , to the great in- crease in modern times of personal property, out of which the husband might make ample provision for the wife by way of testamentary disposition, and of wliich, if he died intestate, she became entitled to her share ; an d lastly, to the effect of the Statute of Wills, Avhich, by making real p roperty devisable, empowered him to ]:)rovidc for her b y w ill out of his real esta te. Under these circumstances there appeared to be no sufficient reason for continuing theTlTconvenient restraint which the law of dower tended to impose on the husband's alienation; and by the statute 3 & 4 AYill. IV. c. 105, it is consequently provided, that all dispositions wliich he may make of his land, (Avhether abso- lute or partial, and whether by conveyance in hisjifetime, or by will,) and all debts and incumla-ances to which such land may be subject, shall be deemed to be valid and effectual, as against his widow's nght to dower. Tlic -auic Act also gives still greater facilities than before existed, lor the 2 , barring of dower ; which it allows to be effected by a sim- ple declaration for that purpose, introduced into^ the deed by which th e land is conveyed to the husband, or into any dee d ex ecut ed b y him, or into his last \nS\. and testament. And it further enacts, that where the husband devises for his wife's benefit any part of his land that had been subject to her doAver, she shall be thereby excluded from her claim of dower, mil ess a coiitraiy intention is declared by the will : though it is othenvise as to a bequest of per- sonalty or of land on which her claim would not attach ; for, in the absence of a declaration to the contrary, that shall not be sufficient to exclude her title as dowress (.r). It is to be observed, however, that none of the provisions (x) See Chalmers v. Storil, 2 Ves. & Bea. 244 ; Dickson v, Robinson, Jacob, 503. CH. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 283 of this Act ajgply to the case of women married on or be fore 1st Jan ua ry, 18 34; and that as to these the former law consequently rem ains in its flill force. [It is curious to observe the several revolutions wliich the doctrine of dower has imdergone since its introduction into England.] The Avife's claim seems first to have ex- tended to a moiety of the husband's lands, but forfeitable by incontinency or a second marriage ; and such is still the case where the tenvire is in gavelkind iy). [By the famous charter of Henry the fii'st, this condition of A^idowhood and chastity, was only required in case the husband left any issue ( s) ; and aftenvards we liear no more of it. Un- der Henr^-the second, according to Glan"\al(a), the dower; ad ostium eccles'icB was the most usual species of dower, an3[ here, as well as in Xormaiidy(&), it was bmding upon the wife, if by her consented to at the time of marriage. JN^either, in those days of feudal rigom*, was the husband alloweoTto endow her ad ostium ecclesicB ^\i\h. more than the third part of the lands whereof he then was seised, though he might endow her with less ; lest by such Hberal endoA\Tnents the lord should be defrauded of his wardships and other feudal profits (c). But if no^ecific dotation was made at the chui'ch porch, then she was endowed hy the common law of the third part (which was caUed her dos rationaMlis) of such lands and tenements as the husband was seised of at the time of tlie espousals, and no other; unless he specially engaged before the priest to endow her of his friture acquisitions (d) : and, if the husband had no lands, an endoAvment in goods, chatt els, or money, a t t he time of espousals, w as a bar of any doAver in lan ds {y) Vide sup. p. 276, n.(o). Great Charter, edit. Oxon. p. iv. (a) "Si morluo viro ttJTor ejus reman- (a) L. 6, c. 1 & 2. serit, et sine liheris fuerit, dotem suam (b) Gr. Coustum. c. 101. hahebit ; si vero nxor cum liheris re- (c) Bract. 1. 2, c. 39, s. 6. manserit, dotem quidem habebit, darn (d) De questu suo (Glanv. ibid.,^ corpus suum legitime servaverit." — de terris acquisitis el acquireudis. Cart. Hen. 1, a.d. 1101. Introd. to (Bract, ibid.) 284 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [Avliicli lie afterwards acc[uirecl(e). In King John's Magna Charta, and the first charter of Henry the third (/), no mention is made of any alteration of the common law, in respect of the lands subject to doAver; but in those of 1217 and 1224, it is particularly pro\aded, that a Avidow shall be entitled for her doAver to the third part of all such lands as the husband had held in his lifetime {g) ; yet, in case of a specific endoAATnent of less ad ostium ecclesia>, the AAddoAv had still no poAver to AA^aiA'c it after her husband's death. And this continued to be Liaa^ during the reigns of Henry the third and EdAvard the first {h). In Heniy the fourth's time it was denied to be laAv, that a Avoman can be endoAved of her husband's goods and chattels (^) : and, imder EdAvard the fourth, Littleton lays it doAATi ex- pressly, that a woman may be endowed ad ostium ecclesicB with more than a third part (70 : and shall have her elec- (e) Glanv. 1. 6, c. 2. When spe- cial endowments were made ad os- tium ecclesicF., the husband, after af- fiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, ("quod dotat earn de tali manerio cum perii/ientiis, &c." — Bract. 1. 2, c. 39, s. 6) ; and therefore in the old York ritual, (Seld. Ux. Hebr. 1. 2, c. 27,) there is at this part of the matrimonial service, the following rubric : " saccrdos inierroget dotem mulieris ; et si terra ei in dotem detur, tunc dicatur psalmus iste, &c.' ' When the wife was endowed generally ( "ubi quis u.rorem suam dotaverit in gene- rali, de omnibus terris et tenementis" — Bract. Ibid.) the husband seems to have said, " with all my lands and tenements I thee endow;" and then they all became liable to her dower. Wlien he endowed her with person- alty only, he used to say, " with all my worldly goods, (or, as the Salis- bury ritual has it, with all my worldly chattel,) I thee endow;" which en- titled the wife to her thirds, or pars ratioiiabilis, of his personal estate ; which is provided for by Magna Charta, c. 2(5. But the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her hus- band's personalty. (/) A.D. 1216, c. 7, edit. Oxon. (g) " Assignetur autem ei pro dote sua tertia pars totius terra mariti sui qua sua fuit in vita sua, nisi de minnri dotatafuerit ad ostium ecclesice." — C. 7. Ibid. (h) Bract, ubi sup.; Britton, c. 101, 102; Flet. 1. 5, 0.23, s. 11, 12. (0 P. 7 Hen. 4, 13, 14. {k) Litt. s. 39; F. N. B. 150. CIT. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 285 [tion, after lior Imsband's death, to accept such dower, or reKise it and betake herself_toJbLer dmver at common law (/). ] " " " °^""" And now even the common law dower itself, after fall- ing by several gi'adations from its original consequence, under the influence of the causes ah-eady explained, is at length, by the statute of 3 & 4 "Will. IV. above mentioned, reduced to a ri ght o f the most precarious description, which tlie luisliand may bar or defeat at his pleasm-e; but *if he fails to exercise that power, the "wddow is still in a condition (as we have seen) to assert her title against the hen- ; to which it may be added that, by the recent statute of 19 & 20 Vict. c. 120, s. 32, she has the same no-ht, in her capacity of tenant in dower, to demise any unsettled e state for a te rm not exceeding twenty-one years, as be- longs to tenant by the curtesy X /^Q. (/) Litt. s. 41. (m) Vide sup. p. 272. 286 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTER V. OF ESTATES LESS THAN FREEHOLD. Having now investigated, in some measure, the nature of fi-eeliold estates, we arrive at the consideration of those which are less than freehold (a), and to which the law con- sequently apphes the denomination of chattels real. For it is to be imderstood that, in ovo: law, chattels (or goods and chattels) is a term used to express any kind of pro- perty which, ha\dng regard either to the subject-matter, or the quantity of interest therein, is not freeholdifi). The appellation was origuially derived from the technical Latin word catalla, which, among the Normans, primarily sig- nified only beasts of husbandry, or, as we still call them, cattle; but, in a secondary sense, was applicable to all move- ables in general, and not only to these, but to whatever was not a fief or feud; to which, among the Normans, there were two requisites, a given degree of duration as to time, and immobihty with regard to place (c). And it is in this latter more extended and negative sense that our own law adopts the term, considering as a chattel whatever amormts not to fi-eehold; which, like the Nor- man fief, requires, as we have seen, immobility in respect of the subject-matter (c?), and a given degree of duration, that is, a dui'ation for a life at least, (either absolute or determinable on contingency,) as regards the quantity of interest or estate (e). Any estate in lands and tenements, (a) Vide sup. p. 235. {d) Vide sup. p. 172. (6) Co. Litt. 118 b. (e) Vide sup. pp. 183, 261. (c) 2 Bl. Cora. 386. CHAP. V. — OF ESTATES LESS THAN FREEHOLD. 287 which amounts not to freehold, is consequently a chattel; but inasmuch as it concerns, or, according to the technical expression, savours of, the realtj(/), it is denominated a chattel real, in order to distinguish it from thmgs which have no concern Avith the realty, viz. mere moveables, and the rights connected with them; and such things as these are, on the other hand, often described as chattels per- sonal {g). Chattels of either description are inferior, it is to be ob- served, in the eye of the law, to freehold; and they form a subordinate class of property, the different species of which are subject, in many respects, to the same incidents; so that as distinguished from estates of inheritance or for life in things real, of whatever tenure, they receive the common denomination of personal estate; while these last are on the other hand described as real estate (h). As to th e inc idents by which chattels real and personal are aUied, it may be remarked, that though " l ivery of seisin " was a ceremony without which an estate of inheritance or for hfe in corporeal hereditaments of free tenm-e could not in general pass at the common law it (e), A vas no more re - quisite in the transfer of a chattel real, than in that of a chattel person al. A chattel real belongs also, on the death of the OAvner, to his executor or administrator, like a chat- tel personal, and does not descend like a freehold of in- heritance, to his heir. So the interest in a chattel real, as i n a chattel personal, may be made to commence in futurq, which, as we shall see hereafter, was not allowed at com- mon law, as to the fr'cehold in a coiporeal hereditament. Moreover, the tenant of a chattel real is not said to be seised, ^"ke the tenant of a freehold, but to be possessed only, as if it were a chattel personal. And, lastly, we m ay observe, there can be jio estate tail in a chattef reaT , (/) Co. Liu. 118 b. ((■) This rule of the common law, {g) 2 Bl. Com. p. 387. is now altered by 8 & 9 Vict. c. 106, (A) lb. 386 ; vide sup. p. 172, n. s, 2, as to which vide post, c. xvii. 288 BK. II. OF RIGHTS OF rilOPERTY. — TT. I. THINGS HEAL. 110 more than i n a c liattel personal, lout only in a jree- lio]cl(/0. [Of estates that are less than freehold, there are three sorts; ITlEstatcs for years ; II. Estates at will; III. Es- ta tes b y sufferance] I. An estate for years (Z) is Avhere a man has an inte- rest in lands and tenements, and a possession thereof by virtue of such interest, for some fixed a-nd determinate period of time ; as in the case Avhere lands are let [for the tenn of a certain nimiber of years, agreed upon between the lessor and the lessee (m), and the lessee enters there- on (w);] and tliis amounts but to a chattel real, however long the period of time for which the lands are demised ; for, in contemplation of law, no interest for a certain and determinate period of time, — even for 1000 years, — is as large as an estate for life (o), which, as w^e have seen, is the lowest description of freehold. [Though the lease be but for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of(p). And this may, not improperly, lead us into a short digression concerning the division and calculation of time by the Enghsh law. The space of a year is a determinate and weU-knoA^Ti period, consisting commonly of 365 days ; for, though in bissextile or leap-years, it consists properly of 3G6, yet by (/c) 2 Bl. Com. 398. that maketh a feoffment ; the feoffee (0 As to this estate, see Co. Litt. is he to whom it is made : the donor 43 b — 54 b. is one that giveth lands in tail ; the (m) We may hei-e remark, once for donee is he who receiveth it: he all, that tlie terminations of " — or " that granteth a lease is denominated and" — ee " obtain, in law, the one the lessor; and he to whom it is an active, the other a passi\e signi- granted the lessee. — Litt. s. 57. fication: the former usually denoting (n) Litt. 58, the doer of an act, the latter him to (o) Co. Litt. 46 a. whom it is done. The feoffor is he (p) Litt. 67. CHAP. V. — OF ESTATES LESS TITAN FREEHOLD. 289 [the stat. 21 Hen. III., the increasmg day m the leap-year, together with the precedmg day, shall be accounted for oneday_only. That of a month is more ambiguous ; there being, in common use, two ways of calcidating months ; either as lunar, consisting of twenty-eight days, the sup- posed revolution of the moon, thirteen of which make a year ; or as calendar months of unequal lengths, according to the Julian di\asion in oiu' common almanacks, com- mencing at the calends of each month, whereof in a year there are only twelve.] By the common law, a "month" is, in matters temporal, a lunar month, or twenty-eight days; in matters ecclesiastical, a calendar month (r) : though this is a rule of the most general description, and jaelds easily to exception where custom or the ob^dous meaning of parties in the particular transaction, or any other spe- cial consideration, makes it reasonable to depart from the usual construction of the term month {s). The ordinary rule, however, applies to the case of a lease. And conse- quently f a lea se for ^^ twelve months" is only for forty- eiffimveeks. But if it be for " a twelvemonth," in the sin^ilar number, it is good for the whole jear(^); for herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singidar number, a twelvemonth, is meant the whole year, consisting of one solar revolution. In the space of a day all the twenty-fourjiom's are usually reckoned (m). Therefore,] in general, [if I am bound to pay money on any certain day, I discha rge the obligation (r) See Lacon i;. Hooper, 6 T. R. " the^wordj month ' shall be deemed 226 ; Blunt v. Heslop, 3 Nev. & Per. and taken to mean 'calendar' month, 553; Simpson V. Margitson, 11 Q. unless words be added showing lunar B. 23. month to be intended." {s) Davy v. Salter, 3 Salk. 346 ; (i) Catesby's case, 6 Rep. 62 a. Rex V. Cussons, 1 Sid. 186; Hipwell {u) Co. Litt. 135 a; Maund'scase, V. Knight, 1 Y. & Col. 401. _A 7 Rep. 28 b ; Duppa v. Mayo, 1 recent Act, moreover, (13 & 14 Vict. Saund. 287 ; Burbridge v. Manners, c. 21,) ena cts, that in a ll statutes 3 Camp. 194. VOL. I. U 290 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. [if I pay it before twelve o'clock at night ; after which the following day commences.] And it is also a general prin- ciple (though one fi-om which it~Ts often necessaiy, for the sake of justice, to deviate) that, -with a ^dew to conveni- ence, the law will consider the ordinary periods of time without regard to their fi-actional parts (v). Thus half a year consists of 182 days, and a quarter of a year of 91 ; the remaining hom-s being in either case rejected ( x). [But to return to estates for years. These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, pro\dsions, or other rent, to the lessors or land- lords ; but, in order to encoiu^age them to manm-e and cultivate the groimd, they had a permanent interest granted them, not determinable at the ^^dll of the lord. And yet their possession was esteemed of so Kttle consequence, that they were rather considered as the baihffs or sen^-auts of the lord, who were to receive and accoxmt for the profits at a settled price, than as having any property of their own (y). And therefore they were not allowed to have a freehold estate 7~1but their Interest, such as it was, vested after their deaths in their executors, who were to make up the accounts of their testator with the lord and his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the antient law, be at anytime defeated] by a collusive recovery, suffered by the tenant of the freehold in an action brought against him for the purpose (z). [ While estates for years were thus precario us, it is no w^ qnder that they were usually veiy sho rt, like om- modern l eases upon rack-rent j_ and indeed we are told (a) that by the antient law no leases for more than forty years were (v) See Wright t). Mills, 4 H. & («) Co. Litt. 46 a ; 2 Inst. 321 ; N. 488. Flower v. Rigden, Cro. Eliz. 284; (x) Co. Litt. 135b; Bishop of Pledgard t;. Lake, ib. 718 ; Reeves's Peterborough v. Catesby, Cro. Jac. Hist. Eng. Law, vol. iv. p. 232. 167 ; Yelv. 100; Dy. 345 a. (a) Mirrour, c. 2, s. 27 ; Co. Litt. (y) Bac. Leases. 45 b, 46 a. CHAP. V. — OF ESTATES LESS THAN FREEHOLD. 291 [allowable : because any longer possession, especially when given without any livery declaring the nature and duration of the estate, might tend to defeat the inheritance. Yet this laAv, if ever it existed, was soon antiquated ; for we may observe, in Madox's collection of antient instruments, some leases for years of a pretty early date, which consi- derably exceed that period (b); and long tenns — for tliree hundred years or a thousand — were certainly in use in the time of Edward the tliird (c), and probably of Edward the first (d). But certainly, w hen by the stat. 21 Hen. VIII . c. 15, the termor (that i s, he Avho is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent (e), long terms began to be more frequent than bef ore ; and were after- wards extensively introduced, being foimd extremely con- venient forfiimily settlements and mortgages. Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is fi'equently called a term, termi- nus, because its dui-ation or continuance is boimded, limited and determined ; for every such estate must have a certain begiiming and certain end (f). But id cerium est, quod certum reddi potest : therefore, if a man make a lease to another, foi" so many yeai-s as J. S._ shall name, it is a good lease for years (^) ; for though it is at present uncertain, yet, when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making or de- livery of the lease (h). A lease for so many years as J. S. shall Eve, is void fi^om the Ijeginning (^') ; for it is neither (6) Madox, Formulare Anglican. (d) Stat, of Mortmain, 7 Edw. 1. No. 239, fol. 140 ; demise for eighty (e) See Ascoiigh's case, 9 Rep. years, 21 Rich. 2 ; ib. No. 245, fol, 135 ; Brediman's case, G Rep. 57. 146, for the like term, a.d. 1429 ; ib. (/) Co. Litt. 45 b. No. 248, fol. 148, for fifty years, 7 (g) Bishop of Bath's case, 6 Rep. Edw. 4. 35 b. (c) 32 Ass. pi. 6 ; Bro. Abr. t. (h) Co. Litt. 46 b. Mordaunccstor, 42 ; Spoliation, 6. (i) Co. Litt. 45 b. u 2 292 BK. II. OF rjGIITS OF rROPERTY. — FT. I. THINGS REAL. [certain, nor can ever be reduced to a certaintj^ during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale ; for this is stiU more uncertain. But a lease for tAventy or more years, if J. S. shall so long live,~br if he shall so long continue parson of Dale, is good (k) ; for there is a certain period fixed, 1)eyond which it cannot last ; though it may determine sooner, on the death of J. S. or his ceasing to be parson there.] As ah-eady observed, the word term, when applied to this description of estate, signifies the estate itself which the grant confers, and not merely the period of time specified in the grant ; [and therefore the term may expire during the continuance oFThe time ; as by siurrender, forfeiture, and the Hke. For which reason, if I grant a lease to A. for the term of three years, and after the expiration of the said term to B. for six years, and A. surrenders or forfeits his lease at the end of one year, B.'s interest shall imme- diately take effect ; but if the remainder had been to B. fi'om and after the expiration of the said " three years," or fi'om and after the expiration of the said " time," in this case B.'s interest Avill not commence till the time is fully elapsed, whatever may become of A.'s term (/).] As an estate for years w as not created, at common law, like a fi'eehold, by livery of seisin, so the tenant, in proper technical language, is not said to be seised, but to be pos- sessed. Neither for the creation of this estate is it proper to limit it to a man and his " heirs," as in the case of a freehold of inheritance. The correct limitation is to a man and to his " executors and administrators ; " though it Is sufficient if it be granted to himself only, without mention of his personal representatives ; for in these, on his death, the law Avill vest it Avithout any special words of limitation. Again, as it required no livery of seisin, so at common law this estate, for whatever length of dm*ation, might be c onstituted by mere agreement, verbal or A\Tittten, if fol- (/:) Co. Litt. 45 b. (/; Co. Litt. 45 b. CHAP, v.— OF ESTATES LESS THiVN FREEHOLD. 293 lowed lip by the entry of the grantee. But by the statute of ffau3s, 29 Car. II. c. 3 (ss. 1, 2), no lease for more than three years, or at a lower rent than two-thirds of the im- proved value of the tlnng demised, shall now be effectual, unless put into writing and signed ])y the party or his agent, lawfully authorized by \\Titing(m). And still later, by 8 ik 9 Vict. c. 106, s. 3, it is pro^-ided, that a lease required by law to be m Avriting, of any tenements or heredita- ments, made after the 1st of October, 1845, shaU be void at law, unless made by deed (n). ntFii also to be remarked, that the bare grant or agree- ment does not in itself vest a complete estate for term of years, in the grantee : it only gives him a right of entry on the tenement ; which right is called his " interest in the term," or interesse termini (o). But when he has actually so entered, the estate is then, and not before, completely vested in him. However, the interesse termini is so far in the nature of an estate, that, even before entry, the lessee may grant it over to another ; though, on the other hand, a lessee before entry is not in a condition to maintain an actibh of trespass for an hijnrj to the land (/>). [Tenant for term of years hath incident to and inse- parabIe~Irom his estate, unless by special agreement, the sa me estove rs which we formerly observed that tenant for life was entitled to {q) ; that is to say, house-bote, fire-bote, plough-bote, hay-bote (r) and the like ;] and the doctrine of waste also applies generally to tenants of either de- scription (s). (m) As to this provision, see Edge Strafford, ubi sup. t). Strafford, 1 Tyrw. 295 ; Lord Bol- {q) Vide sup. p. 262. ton V. Tomlin, 5 Ad. & El. 856. {r) Co. Litt. 41 b. (n) As to the requisites of a deed, («) As to waste, vide sup. p. 263, vide post, c. xvi. et post, bk. v. c. viii. It does not, (o) 2 Bl. C. \^\-, Plowd. 198; however, appear to be yet absolutely Doe V. Walker, 5 Barn. & Cress. settled whether a tenant for years is 111; Co. Litt. 338 a, 270 a; Neal liable, in the absence of any express V. Mackenzie, 1 Mee. & Wels. 747. stipulation on the subject, for per- (p) As to the nature of the inte- mf7sJve\vii&te. (See Ilaruett t. Mait- resse termini, see Williams?;. Bosan- land, 16 Mee. & 'v^^ 257.) quct, 1 Brod. iv Bing. 2iS ; Edge v. 294 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. [With regard to emblements or the profits of lands sowed by tenant for years, there is this difference between him and tenant for life : that where the term of tenant for years depends upon a certainty, as if heTiolds fi-om Mid- siunmer for ten years, and in the last year he soavs a crop of com, and it is not ripe and cut before INIidsummer, the end of his term, the landlord shall have it,] in the absence of any special contract or custom to the contrary ; [for the tenant knew the expiration of his tei-m, and therefore it was his own folly to sow what he never could reap the profits of{t). But where the lease for years depends upon an imcertainty, as upon the death of the lessor, being himself* only tenant for life, or being aTiusband seised in right of his wife (w), or if the term of years be determinable upon a life or lives :] in all these cases, the estate for years not being certainly to expu'e at a time foreloiOAATi, but merely by the act of God, — the tenant for years, or liis exe- cutors, shall have the emblements in the same manner that a tenant for life, or his executors, shall be entitled thereto {x). Not so, if it determine by the act of the party himself; as if the tenant does an}i;hing that amoimts to a forfeitiu-e : in which case the emblements shall go to the lessor, and not to the lessee, who hath deteiTnined his estate by his own default (y). The operation of the com- mon law light to emblements, however, is now much more limited than it once was, having ceased (as we have seen), by the effect of 14 & 15 Vict. c. 25, to apply to such tenants as hold farms or lands at a rack rent under a landlord entitled for life or any other imcertain interest, and whose lease or tenanc}^ determines by the death of their landlord, or by the cesser of his estate ; and a pro- (t) Litt. s. 68. therein mentioned, make effectual {u) A lease for years by a tenant leases for any term not exceeding for life, or a husband seised in right twenty-one years. Vide sup. pp. of his wife, is not in all cases subject 258, 259, 263, 285. to uncertainty. For by 19 & 20 (.r) Co. Litt. 56 a; vide sup. p. Vict. c. 120, s. 32, such persons may 26i. now, under such circumstances as (y) Co. Litt. 55 b. CHAP. V. — or ESTATES LESS THAN FREEHOLD. 295 tection of a different kind, being now provided for tenants so circumgtanced {z). II. The second species of estates not freehold, are estates at will (a). An estate at will is where lands and tenements are let by one man to another to have and to hold at the ■will of the lessor, and the tenant by force of this lease obtains possession (5). It maybe constituted by written or verbal agreement wathout fiirther ceremony, if followed by entry ; and may in some cases arise by mere construc- tion of law. [Such tenant hath no certain indefeasible estate ; nothing that can be assigned by him to any other ; because the lessor may determine his Avill, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord arid tenant : so that either of them may determine his will, and quit his connexions mth the other, at his own pleasure (c). Yet this must be imder- stood with some restriction. For, if the tenant at will sows his land, and the landlord, before the com is ripe or before it is reaped, puts him o ut, y et the tenant shall have the emblements, and free ingress, egress, and regress to cut and carry away the j)rofits {d). And this for the same reason upon which all the cases of emblements turn, viz. the point of vmcertainty ; since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it ; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law Avill not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will ; for in this case the landlord shall have the profits of the land (/^ ' \^ I t^/U . ^ /, 1^ ^ ^/j M - ^ ^" • '-- H 296 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. but he is understood to be not liable for waste merelyjger- missive (/). [What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now settled, that — besides the express determination of the lessor's Avill, by declaring that the lessee shall hold no longer, Avhicli must either be made upon the land(^), or notice must be given to the lessee {h) — the exertion of any act of ownership by the lessor,] Avithout the lessee's consent, puts an end to or de- tefhiincsthe estate at will; as, for example, [entering upon the premises and cutting timber {i), or taking a distress for rent and impounding it thereon (k), or making a feoff- ment, or lease for years of the lands to commence imme- diately (/).] And the same consequence will follow [any act of desertion by tTie~Iessee, as assigning his estate to another, which is an act inconsistent with such a tenure (m) ;] or his committing waste (w). Also, [which is instar omnium, the death or outlawry of either lessor or lessee (o).] The laAV is, hoAvcA^er, careful [that no sudden determina- tion of the Avill by one party, shall tend to the manifest and imforeseen prejudice of the other. This appears in the case of emblements before mentioned ; and, by a parity of reason, the lessee, after the determination of the lessor's will, shall haA'e reasonable ingress and egress to fetch aw^ay his goods and utensils (p). And, if rent be payable quarterly or half-yearly, and the lessee determines the aatU, the rent shall be paid to the end of the cuiTent quarter or half-^-ear {q). And, upoii the same principle, courts of laAV (/) See Harnett v. Maitland, 16 {I) 1 Roll. Abr. 860 ; Disdale v. Mee. & W. 257. lies, 2 Lev. 88. {g) Co. Litt. 55 b. (ot) Co. Litt. 57 a. (A) Hinchman v. lies, 1 Ventr. (n) Ibid.; 1 Walk. Copyh. .511. 248. (o) Gland's case, 5 Rep. 116 b; (0 Co. Litt. 55 b. Soby-arrying Co. Litt. 57 b, 62 b. away stone. Turner v. Doe d. Ben- ( p) Litt. s. 69. nett, 9 M. & W. 643. {q) Leighton v. Theed, 2 Salk. (/-) Co. Litt. 57 b. 414 ; Kighly v. Biilkly, 1 Sid. .339. CHAP. V. — OF ESTATES LESS TILVX FREEHOLD. 297 [have of late years leaned as mucli as possible against con- st ruing d emises, where n o certain term is mentioned, to b e tenancies at ■\viil(7'); bnt have rather held them to be tenancies from year to year so long as both parties please, ~\ and -will not suffer either party to determine the tenancy, A\dthont reasonable notice to the other ; which reasonable notice IS now tixed, by general usage, at half a year at the least, ending with the cuiTent year of the tenancy {s) ; though where the tenancy commenced at one of the usual quarterly feast days, the half-year may be computed from one feast day to another, whether there be 182 days between them or not(^). This tenancy "from year to year," or "by the year," has in modem times almost entirely superseded the old tenancy at ■vvill, and prevails so much that it may be proper to enlarge a little more upon its character. It belongs properly to the first species of estate which has been noticed in this chapter, ytz. the estate for years ; though, fi'om the degree of imcertainty to which its dm-a- tion is subject, it partakes also in some measm-e of the nature of an estate at "\^all. I t may be created not only l 2y the express agreement of the parties, verbal or wri tten ( z<), but also by construction of laAv . Th us, if a man dem ise land to another at a yearly rent, no Icng'th of time Ijcing e xpressed, the law will constiaie this as a d emise fi-om year to year (x). So the law Avill ah^'oys imply a tenancy (r) But a demise, wherein the in- termine it. tention of the parties is evidently to (/) Doe v. Watkins, 7 East, 551 ; create a tenancy by will, is still so Roe d Doe, 6 Bing. 574. construed by the courts. (See Doe (u) But unless made by deed, the V. Cox, 11 Q. B. 122.) rent reserved must be two-thirds of {s) See Timniins v. Rawlinson, 3 the improved value of the thing de- Burr. 1603 ; Right t;. Darby, 1 T. R. mised. (29 Car. 9, c. 29, s. 3 ; 8 & 9 159 ; Doe V. Smith, 5 Ad. & El. 351 ; Vict. c. 106, s. 3.) Doe V. Stanion, 1 Mee. & Wels. 695. (.r) See Doe i'. Donavan, 1 Taunt. Blackstone (vol. ii. p. 147; remarks 555; Richardson t;. Langridge, 4 that this kind of lease was in use as Taunt. 128; Shirley v. Newman, 1 long ago as the reign of Henry the Esp. N. P. C. 266; Doe v. llazell, eighth, when half a year's notice ib. 9t; Wilkinson v. Hall, 3 Bing. seems to have been rccjuired to dc- N. C. 508. 298 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. fi.'om year to year Avlicre land is occupied at an annual rent, and there is no evidence that the occupier's estate is of a different description ( y). And the case has been adjudged to be the same, if a man is let into possession under a verbal demise tor a term ot more than three y ears — Avhich, as aheady observed, must now be by deed (z);— for though such a demise will not be effectual for the term intended, yet it has been held that the lessee must be considered as holding from year to year (a). With respect to the diu'ation of the interest, it is to be observed, that, as the half-year's notice to determine the estate (or notice to quit as it is called) must always be for quitting at the end of some particular year of the tenancy (5), a lease "from year to year" Avill necessarily confer an estate for one year certain, at the outset (c) ; and if In that, or any succeeding year of the tenancy, more than half a year elapse without a notice to quit being given by either of the parties, another year certain is thereby con- stantly added to that which is in progress. Upon the same principle, if the lease be "for a year, and so fi-om year to year," it will enure as a demise for tivo years cer- tain, at the outset; for at the expiration of the first, there is a continuation of the tenancy, which cannot be determined by a notice to quit at an earher period than the expiration of the second year {d). But in other respects the laAv of duration is the same as in the case first supposed. It is further to be remarked, that the estate from year to year, when once constituted, does not determine (like an (y) See Doe d. Lord v. Crago, 6 2 Ell. & Bl. 933. As to the suffi- C. B. 90. ciency of a notice to quit, as given (z) Vide sup. p. 293. in particular cases, see Doe d. Lys- (a) See Doe v. Bell, 5 T. R. 471 ; ter v. Goldwin, 2 Q. B. 143 ; Doe d. Clayton v. Blakey, 8 T. R. 3 ; Lee Bailey v. Foster, 3 C. B. 215. V. Smith, 9 Exch, 662 ; Stratton v. (c) See Doe d. Hogg v. Taylor, 1 Pettit, 16 C. B. 432, Jur. 960 ; Doe d. Cornwall v. Mat- (b) As to the manner of proving thews, 11 C. B. 675. a notice to quit, see Doe v. Somer- (d) Denn r. Cartwright, 4 East, 32. ton, 7 Q. B. 58 ; Stapylton v. Clough. CHAP. V. — OF ESTATES LESS THAN FREEHOLD. 299 estate at will), by an assignment of the interest of either of the parties, or by their death : but the tenancy will con- tinue to exist between one of the parties and the assigns or representatives of the other ; or betAveen the assigns or re- presentatives of both parties, (as the case may be,) until duly determined by the usual notice to quit (e). To which it may be added, that though the same law with respect to Avaste, (either voluntary or permissive,) as above laid down in the case of a tenant at will, is also applicable in general to a tenant from year to year ( f ), yet where the demise to the latter comprises a house, he seems boimd to keep it in weather-tight condition, and consequently to be an- swei'able for such permissive waste as may arise by his neglect to do 80(57); — a doctrine Avhich is not understood to be applicable to a mere tenant at w2Q. III. An estate at sufferance is where one comes into possession of land imder a lawful demise, and, after the estate demised is ended, -wTongfully continues the posses- sion (/<). [As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises, without any fr-esh leave fi'om the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined ; but if the tenant continueth posses- sion, he is tenant at sufferance (i). But no man can be tenant at sufferance against the king, to Avhom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law ; but his tenant, so holding over, is con- sidered as~an a bsohite intruder {j). And in the case of a subject, this estate may be destroyed whenever the true owner'shall niake an actual entry on the lands, and oust the tenant; but, before entry, the owner cannot maintain (e) See Maddon v. White, 2 T. R. per Lord Tenterden, Auworth v. 159; Doe V. Porter, 3 T. R. 13; Johnson, 5 Car. & P. 241. Buckworth v. Simpson, 5 Tyr. 354. {h) Co. Litt. 57 b, 271 a ; 2 Inst. (/) Vide sup. pp. 295, 296. 134. {g) See per Lord Kenyon, Fcr- (i) Co. Litt. 57 b. gusson V. , 2 Esp. N. C. 590; {j) Ibid.; and seen. (4), by Ilarg. 300 BK. II. OF RIGHTS OF rROrEKTY. — PT. I. THINGS RE^VL. [an action of trespass against the tenant by sufferance, as he might against a stranger (A); and the reason is, because the tenant being once in by a lawful title, the law, (which presumes no A\Tong in any man,) Avill suppose him to con- tinue upon a title equally lawflil, unless the owner of the land, by some public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful. Thus stands the law, with regard to tenants by suffer- ance;] and landlords had formerly no remedy in such cases but by entry, or an action of ejectment for the land; — fol - lowed by an action of trespass for damages; in which tlie tenant was bound o nly to account for the profits of the l and so by him detain ed. [ But now, by statute 4 Geo. II . c. 28, in case any tenant for life or years, or other person claiming under or by collusion Avith such tenant, shall wil- fully (Z) hold over after the determination of the term, and afler demand made and notice in writing given, by him to Avhom the remainder or reversion of the premises shall belong {m ), for delivering the possession thereof; such person, so holding over or keeping the other out of possession, slialPpay, for the time he detains the lands, at the rate of d ouble their .yearly valu e. And by statute 11 Geo. II. c. 19, in case any tenant, ha\dng power to determine his lease, shall give notice of his intention to quit the premises, and shah not deliver up the possession at the time con- tained in such notice, he shall thenceforth pay double his former rent for such time as he continues in possession (re).] TCo give landlords, also, as against their tenants holding (/f) Trevellian v. Andrew, 5 Mod. Messenger v. Armstrong, 1 T. 11. 384. 53; Page v. Moore, 15 Q. B. 684. {I) See Swinfen v. Bacon, 6 li. & Where the tenant holds over, and an N. 184. ejectment is brought, he may be {m) See Blatchford, app. v. Cole, compelled in some cases to find resp., 5 C. B. (N. S.) 514. sureties for payment of the costs {n) As to these statutes, see also and damages. (See 15 & 16 Vict. c. Co. Litt. by Ilarg. 57 b, n. (2); 76, s. 213.) Soulsby V. Ncving, 9 East, 314; CHAP. V. — or ESTATES LESS THAN FREEHOLD. 301 over, the option (where the property is of small value) of a more cheap and speedy remedy than the formal one of an ejectment in one of the superior courts (o), it is pro - ■vaded by 1 & 2 Vict. c. 74 (p), that Avhere a tenan t has he ld at Avill, or for a term not exceeding sev en years, ■ndthout rent, or at a rent not exceeding the rate of £20 per annum; and such tenant, or the person occupying under him, shall fail to deliver up possession after his in- terest has ended, or been duly determined by notice to quit or otherwise; his landlord (or any of his landlords, where there are several) may proceed, after giving Avritten notice of the intention to do so, to r ecover possession by a summary procee ding before any two justices of the pe ace a ssembled in petty sessions for the distnc t ; who are autho- rized (unless reasonable cause is shoT\Ti against it by the tenant) to issue their wan-ant for possession accordingly. But where tEe^erson obtaining the Avan-ant has no lawful right to the possession, the act of obtaining it is to be deemed a trespass ; and execution of the wan*ant is in every case to be stayed if the tenant shall give secui-ity to bring an action to try the right, and to pay all the costs thereof in the event of judgment being given against him. More- over, by 19 & 20 Vict, c. 108, s. 5 0, it is now enacted, that if the tenii and interest of the tenant of any corpo- real hereditament — Avhere the value of the premises or the rent payable in respect of such tenancy shall not hav e ex- c eecledT £50 per annum , and upon Avliich no fine or pre- mium have been paid — shall have expired or been duly determined by a legal notice to quit, and the tenant or any person holding or claiming through him shall neglect o r refiise^t o deliver up possession accordingly, the landlord (o) As to ejectment, vide post, As to recovering possession of pre- bk. V. c. XI. mises within the metropolitan dis- ( p) See Jones v. Chapman, 14 trict, see 3 & 4 Vict c. 84, s. 13; Mee. & W. 124; Delaney v. Fox, 11 & 12 Vict. c. 43, s. 34 ; Edwards 1 C. B, (N. S.) 166 ; Rees, app., v. Hodges, 15 C. B. 477. Davies, resp., 4 C. B. (N. S.) 56. 302 BK.II. OF RIGHTS OF PROPERTY. — rT. I. THINGS REAL. may enter a plaint in the county court of tlie district (q), either against such tenant or such other person as afore- said; and, after judgment given in his favour, obtain pos- session through the higli baihtf of the court, to Avliom a waiTant may be issued for that purpose by the regi s- trar (r). We may conchide the present chapter Avith this remark, that in the case of a lease for years, as Avell as that of a lease for life, or gift in tail, a tenure of the imperfect kind is created between the lessor and the lessee (5); and the latter holds of the formeFby the nominal obligation of fealty, and by such services as are reserved ; but that it is other^vise as to a tenant at will or at sufferance, fi'om neither of whom is any fealty du e. The reason assigned as to the tenant at will, is, that " he hath not any sure estate" {t) ; and as to the tenant at sufferance, he is not considered, in strictness, as having any estate at ^11, but a mere ** possession without privity" {u). (q) As to the district county (i) Co, Litt. 93 a, 93 b ; 63 a, courts, vide post, bk. v. c. iv. CS b, n. (5), by Harg. ; see Denn (r) There is a former provision v. Fearnside, 1 Wils. 176. There is nearly to the same effect in 9 & 10 an exception to this, however, in the Vict. c. 95, s. 122, as to which see case of copyhold, which is a species Jones V. Owen, 5 D. & L. 669 ; of estate at will ; for fealty is due Ellis V. Peachey, ib. 675 ; Banks v. from a copyholder (though respited Rebbeck, 2 L., M. & P. 452 ; Har- as of course) on his admittance, rington v. Ramsay, 8 Exch. 879 ; 2 (Co. Litt. ubi sup.) Ell. & Bl. 669. (m) Co. Litt. 270 b. (s) Vide sup. p. 252. ( 303 ) CHAPTER VI. OF ESTATES UPON CONDITION. [Besides the several divisions of estates, in pointof inte- rest, wliicli we have considered in the three preceding chapters, there is also another species still remaining, which is calleH an estate upon condition (a) ; being such whose existencedepeiifls upon tlie ]ia]ipening or not hap- pening of some uncertain event, whereby the estate rnay be Either originally created, or enlarged, or finally de- feated (6). And tliesc ediiditidual estates have been re- served tiU last, because they are indeed more properly qualifications of other estates, than a distinct^ species, of the msel ves ; s eeing that any quantity of interest — a fee, a fi-eehold, or a term of years — may depend upon these provisionaljestrictions. Estates then upon condition, thus imderstood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estate s held hjjelegif. 1. Estates upon condition implied in law, are where a gra nt of an est ate has a condition annexed to it inseparably from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an *' office" generally, without adding other words (c), the law (a) As to this estate, vide Co. Litt. ford's case, 8 Rep. 73 b. 201 a— 237 a. (c) As to offices, see Gen. Ind. (i) Co. Litt. 201 a; Lord Staf- in tit. " Office." 304 r,K. II. OF RIGHTS OF PROPERTY. — PT. I. THIXOS REAL. [tac itly an nexes hereto a secret condition, that the grantee shall duly execute his office (d) ; on breach of which con- dition it is laAvfuI for tlie grantor, or his heirs, to oust him, and grant it to another person (e). " Franchises" also, or regal_privileges in the hands of a subject, are held to be gi'anted on the same condition of making a proper use of them ; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect(/). Upon the same principle jDroceed aU the forfeitiu-es which are given by laAv, of life estates and others^ for any acts done by the tenant liimselT, that are incompatible mth the estate which lie holds. As if tenant for life or years enfeoff a stranger in fee simple]: this, by the common law, as we shall see hereafter (^), [was a forfeiture of their several estates ; being a breach of the condition Avhich the law annexes thereto, viz. that the tenants shall not attempt to create a greater estate than they themselves are entitled to (A). II. An estate on condition expressed in the grantitself ] i s of tw o Jdnds. The first is [^vhere an estate i s gra nted — either m fee simple or otherv^-ise — ^vith an expressed qua- Hfication annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such quahfi^ation or condition (i),] Avhich is described in the books as a condition in deed{j). [These conditions are therefore cither precedent or subsequoit. *' Precedent" are such as must happen or be performed (d) Litt. s. 378; see Bartlett v. commencement of estates upon con- Downes, 3 Barn. & Cress. 619. dition, see Co. Litt. 216 a— 218 b ; (e) Litt. s. 378. as to their enlargement on condition, (/) Earl of Shrewsbury's case, 9 Lord Stafford's case, 8 Rep. 71 ; Rep. 50. As to franchises, vide post, Fearne, by Butler, 279, 9th ed. ; as c. XXIII. to their defeasance on condition, Co. (g) Vide post, p. 316. Litt. 214 b, 215 a. As to estates (A) Co. Litt. 215 a; sed vide 8 & devised on condition, Sugden on 9 Vict. c. 106, s. 4, et post, ubi sup. Powers, vol. i. p. 122 (7th ed). (i) Co. Litt. 201 a. As to the (_;) Co. Litt. 201 a. CHAP. VI. — OF ESTATES UPON CONDITION, 305 [before the estate can vest or be enlarged: "subsequent" are sucb, by tbe failure or non-performance of Avhicli an estatea &eady vested may be defeated.] Thus, [if a man grant to his lessee for years, that upon payment of a hun- dred marks within the term he shall have the fee, this is a condition precedent, and the fee simple passeth not till the himdred marks be paid (k). But if a man grant an estate in fee simple, resei'\'ing to himself and his heirs a certain rent, and that, if such rent be not paid at the times hmited, it shall be lawfid for him and his heu"s to re-enter andpymd the estate: in this case the grantee and his heirs have an estate upon condition subsequent ; which is defeasible, if the condition be not strictly performed (Z).] But secondly, estates on condition expressed in the grant may be created not onlyHby a condition in deed, but by a conditional limitation {m) I whic h is, wher e an estate is so expressly defined and limited by the words of its creation, that it cannot endm^e for any longer time than till the contingency happens, upon Avhich the estate is to fail. Totliis class may be relerred all base fees, and fees simple conditional at tlie common law(w). Thus [an estate jto^aman and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heiis of his body; as this is no tenement mthin the statute of Westminster the Second^it remains, as at com- mon law, IT fee^simple on condition that the gi'antee has (k) Co. Litt. 217 b; Lord Staf- " conditional limitation" better ex- ford's case, 8 Rep. 73 b. presses the idea in the text, and is {I) Litt. s. 325. frequently adopted for that purpose {m) Co. Litt. 234 b; see Mary (as in 1 Sand. Us. 149, 2nd ed.) It is Portington's case, 10 Rep. 40 b; right, however, to apprise the student 41 b. The term used by Lord Coke that this term is used by ditferent is simply "a limitation." But as writers in difierent senses; see 1 " limitation " is ordinarily used to Sand. Uses, 149, 2nd ed. ; Fearne, express a more general idea (viz. the by Butler, 10, n. (h), 9th ed. ; Gilb. definition or circumscription in any Us. by Sugd. 178. conveyance, of the interest which tbe {ti) Vide sup. p. 243. grantee is intended to take), the term VOL. I. X 306 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [heirs of his body. Upon the same principle depend all the determinable estates of freehold, mentioned in the fourth chapter: as durante viduitate, &c. : these are estates upon condition that the grantees do not marrj-, and the like(o).] Between conditional limitations and estates depending on condition subsequent, (though bearing, on the whole, considerable resemblance to each other,) there is this differ- ence — that [when land is granted to a man,\^o long as/[iQ. is parson of Dale, or while he continues immarried, or until out of the rents and profits he shall have made 500/. and the like; in such case the estate detennines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 500/.,) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy; but when an estate is strictly speaking upon condition in deed (a s if gra nted ex- pressly upon condition to be void upon the payment of 40/. by the grantor, or so that the grantee continues unmarried, or provided Tie goes to York^ &c.) the law permits it to endure Tieyond the time when such contingency happens, unless tlie grantor or his heirs take advantag-e of the breach of the condition, and make an entry in order to avoid th e estate ( p).~\ As to the necessity of entry, however, thereis a diversity (says Lord Coke) between a condition annexed to a freehold and a condition annexed to a lease for years {q). Thus, if a lease for years be made on condition that, if the lessee goes not to Home before such a day, the lease shall be "void, tlie lease is ipso facto void upon the breach of the c ondition, withou t any entry by the lessor; but if t he (o) Vide sup. p. 261. the condition, see Brooke v. Spong. (p) Litt. s. 347, 331; stat. 32 15 Mee. & W. 153. Hen. 8, c. 34 ; Mary Portington's {q) As to re-entry by a lessor on case, 10 Rep. 40 b, 41 b ; Avelyn breach of condition, see Roberts v. V. Ward, 1 Ves. sen. 420. As to the Davey, 4 Barn. & Adol. 664 ; Hill party on whom lies the orms pro- v. Kempshall, 7 C. B. 975. handi with respect to the breach of CHAP. VI.— OF ESTATES UPON CONDITION. 307 lease liad been for life, an entry would have b een necessary before it could have been defeated (r). The_nght of entry on breach jof a condition subsequent, cannot be reserv^ed in favour of a stranger, but onl^^of the grant or or his heir s ; and on entiy by him or them, after breach, the effect is to defeat altogether the estate which had before passed to the grantee ; so that the grantor or his heirs are in as of their former seisin (s). It was also f the ride of the common law, that the right of entry could not be assigned in any case to a stranger (t). So that if a man had made a lease for life, reserving a rent, i^ith proviso for re-entry m case of non-payment, and the lessor granted ovei' his reversionary estate to another, the latter coxdd take no benefit fi-om the condition (u). But by statute 32 Hen. VllT. c. 34 (v), the law in this respect is altered, and the grantee orthe reversion, upon a lease for life or years, shall have the same benefit of a condition, in case of aTsubsequent breachy"as the g rantor himself woidd have had, — provided that such condition relates to the pajTnent of rent, the restriction from waste, or other like object tending to thelBenefit of the reversionary interest (x). And with respect to conditional limitations, a stranger may_in all case s take advantage of_these, even by Ihe common law. Thus, if a man make a lease until J. S. shall retimi fi'om Rome, and afterwards grant the reversion over to (r) Co. Liu. 214 b. As to the Simpson, 5 Tyrw. 354; Standen v. nature of the entry required, see Chrismas and another, 10 Q. B. 135 ; Doe V. Pritchard, 5 Barn. & Adol. Wright v. Burroughes, 3 C. B. 685. 765. It may be observed here, that a right (s) Fearne, by Butler, 381, n. (a), of entry which has actually accrued to 9th ed. As to the rights of the the lessor, &c., for a condition broken, grantor or his heirs on re-entry, in seems not to be assignable under 8 & respect of the emblements, see Davis 9 Vict. c. 106, s. 6, so as to allow tlie V. Eyton, 7 Bing. 154. assignee of the reversion to recover (t) Litt. s. 347. possession of the premises by reason (m) Co. Litt. 215 a. thereof. (See Hunt v. Remnant, 9 (v) As to this statute, see Thursby Exch. 635.) V. Plant, 1 Saund. by Wms. 237, and (x) Co. Litt. 205 b ; 1 Saund. by the notes thereto ; Buckworth v. Wms. 287, n. (16). x2 308 BK.II. OF RIGHTS OF rROPERTY.— PT. I. THINGS REAL. another, sucli grantee, on the return of J. S. fl'om Rome, shall be entitled to enter, — the interest of the lessee being then determined by the terms of the limitation itself (3/). In all instances of estates upon express condition, it is to be obser^'ed, that so long as the condition [remains unbroken, the grantee may have an estate of freehold, pro- vided the estate upon Avhich such condition is annexed be in itself of a freehold nature : as if the original grant ex- press either an estate of inheritance or for life ; or no estate at all, which is constructively an estate for life. For the breach of these conditions being contingent and imcertain, this tmcertainty preserves the ffeeliold {z) ; because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may deter- mine sooner (as a grant for ninety-nine years, provided A., B. and C, or the sm-vivor of them, shall so long live), this still continues a mere chattel, and is not by reason of such its uncertainty ranked among estates of freehold. These express conditions are void, if they be impossibl at the time of their creation, or aftcrAvards become impos- sible by the act of God or the act of the feoffor himself; or if they be contrary to law, or repugnant to the nature of the estate. In any of which cases, if they be conditions subsequent, that is, to be j)erfornied after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in twenty-four hours, or imless he mames with Jane S. by such a day (within which time the woman dies, or the feoffor marries her himself) ; or imless he kills another ; or in case he alienes in fee ; that then and in any of such cases the estate shall be vacated and determined : here the condition is void, and the estate made absolute in the feoffee. For he hath {y) Co. Litt. 214 b; Mary For- (?) Co. Litt. 42 a, tington's case, 10 Rep. 42. CHAP. VI. — OF ESTATES UPON CONDITION. 309 [by the grant tlie estate vested in him, which shall not be defeated afterwards by a condition either impossible, ille- gal, or repugnant (a). But if the condition be precedent or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee ; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing Tjy the grant; for he EatE ho estate until the condition be performed (6).] On the other hand, even where the condition is valid and capable of being enforced, it is also capable of being waived by the grantor at his pleasm-e(c); and as the law always leans against forfeitures (c?), it will consider him as having waived his light to enter for breach of a condition subsequent, if, after notice of the breach committed, he does any act inconsistent with an intention to avail himself of the forfeiture. Thus, if a lease be made with a prox-iso that, in the event of the lessee's assigning his interest, the lessor shall be at liberty to enter on the land demised, as of his former estate ; he ^ill nevertheless not be entitled to enter, if, after an assignment made, he accepts rent fi-om the assignee (e). (a) Co. Litt. 206 a; Mary For- {d) Co. Litt.206 b ; Clay v. Bow- tington's case, 10 Rep. 42 ; see ler, 5 Ad. & El. 403, n. judgment of Parke, B., in Doe v. (e) See Co. Litt. 211 b ; Doe d. Eyre, 5 C. B. 744. Nash v. Birch, 1 l\f ee. & W. 402 ; (i) Co. Litt. 206 a. See Shrews- Doe v. Lewis, 5 Ad, & Ell. 277; bury V. Scott, 6 C. B. (N. S.) 179. Hartshorne v. Watson, 4 Bing. N. C. (c) Co. Litt. 218 a. By 23 & 24 178; Doe «. Rees, ib. 384. As to Vict. c. 38, s. 6, where any actual forfeiture or right of entry for breach waiverof the benefit of any covenant of condition or covenant in a lease or condition in a lease is proved to relating to not assigning (or doing have taken place in a particular in- other act) without licence, or for stance, it shall not be assumed to breach of condition or covenant re- extend to any breach other than lative to the payment of rent, or the that to which such waiver specially insurance of the premises, see 15 & relates, nor to be a general waiver 16 Vict. c. 76, s. 210 ; 22 & 23 Vict, of the benefit of such covenant or c. 35, ss. 1 — 3, 4 — 9 ; 23 & 24 Vict, condition, unless an intention to that c. 126, ss. 1, 2. efFect shall appear. 310 BK.II. OF RIGHTS OF TROPERTY. — PT. I. THINGS REAL. There are some estates defeasible upon condition sub- sequent, that requii'e a more part^cidar notice. Such are, III. [Estates held in vadio, in ffac/e, or pledge : which are of two Ends, yivum vadium, or Hving pledge ; and moituum vadium, dead pledge, ov mortg age. Vivum vadium, or Ji ving pledge,] a term rarely or never occurring in practice, f is wh en a man borrows a sum (suppose 200/.) of another; and grants him an estate, as of 20/. per annum, to hold till the rents and profits shall repay Ihe smn so borrowed. This is an estate conditioned to be void, as soon as such smn is raised. And in this case the land or pledge is said to be liAang : it sulasists, and siu- vives the debt ; and, immediately on the discharge of that, results back to the borrower (y). But mortuum vadium, a dead pledge, or mortgage (Avhicli is much more common than the other), is where a man borrows of another a specific sum {e.g., 200?r)7"and" grants him an estate on condition that if he, the mortgagor, shall repay the mort- gagee the said sum of 200/.] or, as is more usual, the said sum of 2062., with interest at sucE~arrate, [on a certain day rnentionod in the deed, that tlien the mortgagor may re-enter on the estate so granted in pledge ; or, as is now the more usual way, that then the mortgagee_shjill je- convey the estate to the mortgagor : in^ tliis_ ca^, the land, which is so put in pledge, is l\y law, in case of non- payment at the time Hniited, for qxqy dead and gone from the mortgagor ; and the mortgagee's estate in tlie lands is then no longer conditional, but absolute : but so long jis it continues conditional, that is , bet ween the time of lend- ing the money and the time allotted for pa^nnent, the m ortgagee i s called tenant in mort gage (//).] (/) Co. Litt. 205 a ; see Fenwick served that a mere deposit of title- V. Reed, 1 Meriv. 119. Astomort- deeds witliout conveyance will gage of a personal chattel, see Flory amount to a mortgage in contem- V. Denny, 7 Exch. 581. plation of a court of equittj. (See {g) Litt. s. 332. It may be ob- Russell v. Russell, 1 Bro. C. C. 2G9.) CHAP. VI. — OF ESTATES UPON CONDITION. 311 As soon as the estate is created, the mortgagee, in the absence of any stipulation to the contrary, might imme- diately enter on the lands, but would be bound to restore them upon performance of the condition by payroent of the mortgage-money at the day limited: and therefore it is usual to insert a pro^dsion that the mortgagor shall hold the land till the day assigned for payment; but in case of failure to pay at that period, the mortgagee is then entitled to enter and take iiosscssion, without any possibility at the common law of behig afterwards evicted by the mort- gagor (h). The mortgagee, however, is not permitted to avail himself of the forfeitm-e, to any extent beyond what is necessary for the satisfaction of his reasonable claims. For here [the courts of equity interj:)ose; and though a mort- gage be tluis forfeited, and the estate' absolutely vested in the mortgagee at the common law, yet they Avill allow the mortgagor to recall ovjredeem liis estate^ paying to the mortgagee his principal, interest and expenses (i) ; for other- wise, in strictness of law, an estate worth lOOOZ might be forfeited for non-payment of 100^. or a less siun.] It is, however, provided by a statute of modem date, 3 & 4 Will. *t^ IV. c. 2T, s. 28, thafthe mortgagor shall not be entitled to redeem but within twenty years next after the time that the mortgagee shall obtain possession ; unless in the mean time an acknoAvledgment in -wT'lting shall have been given by th e mortgagee of the right of the mortgagor, in which case (Ji) See Doew. Giles, 5 Biiig. 421 ; mortgagor subsequently to the mort- Doe V. Cadwallader, 2 Barn. & Adol. gage, and without the privity of the 473; Thunders. Belcher, 3 East, 419; mortgagee, he may be ejected. See Doe V. Maisey, 8 Barn. & Cress. 767 ; the cases above cited. Partington v. Woodcock, 6 Ad. & El. (i) But if the money be not repaid 695. It is supposed in the text that by the day assigned, and the mort- thereisno tenant in possession, under gagee has neither demanded, nor a lease prior to the mortgage. If there taken any steps to compel, payment, be, his possession cannot of course be he is entitled to receive six calendar disturbed ; but he may be compelled months' notice in writing before the to pay over his rents to the mort- mortgage can be paid off. SeeShrap- gagee. If there be a tenant in pos- nell v. Blake, 2 Eq. Ca. Ab. in tit. session under a lease granted by t!ie Mortgage, pi. SK 312 BK. II. OF EIGHTS OF rKOPEETY. — PT.I. THINGS REAL. the power of redemption is limited to a period of twenty- years from such acknowledgment. And, in favom* of a miortgagee who has not obtained possession, it is enacted by 7 WiU. IV. & 1 Vict. c. 28, that it shall be lawftd for any person, entitled to or claiming under any mortgage of land, being land Avithin the meaning of 3 & 4 Will. IV. c. 27, to make an entry or bring an action at law or suit in equity to recover the same, (although more than twenty years may have elapsed since his right so to do shall have first accrued,) within twenty years next after the last pay- ment of any part of the principal or interest secm-ed by such mortgage (^). The reasonable advantage above referred to, [allowed to mortgagors, is called the equity of j'edemptlon (n);J and the mortgagor may avail himself of it by filing a," bill to redeem" (as it is called) in a coiui: of equity. If the mortgagee be not in possession, the bill merely calls upon him for a reconveyance (m), on payment of principal, interest, and costs of suit: but as against a mortgagee who has obtained possession, such a bill prays that an account may be taken of aU the rents and profits on the one hand, and of the principal, interest, and costs on the other; and that, on payment of what may appear due on such account, a reconveyance may be made, and the pos- session of the premises restored (w). [On the other hand, {I) See Doe d. Palmer v. Eyre, observed that, during the continuance 17 Q. B. 366. of the equity of redemption, theCourt (to) In certain cases of accidental of Chancery regards the mortgagor or formal difficulty in obtaining a as the owner of the same estate as he reconveyance, (as where the mort- had in the lands before the mort- gagee has died intestate and without gage, subject only to the debt thereby an heir,) the Court of Chancery is created : and one consequence of this empowered to make an order having doctrine is, tliat, on the death of the effect of a reconveyance. See the mortgagor, the mortgaged estate 13 & 14 Vict. c. 60, for consolidating comes to the devisee or heir encum- and amending the laws relating to bered with this debt. By 17 & 18 the conveyance and transfei of real Vict. c. 113, the estate so encum- and personal property, vested in bered and devised or descending is, mortgagees and trustees. in the absence of an expressed in- (w) It may be here incidentally tention to the contrary on the part CHAP. VI. — OF ESTATES UPON CONDITION. 313 [the mortgagee may, where his debt remains mipaid] for more than a reasonable time after the time agreed on, file a " bill of foreclosure" in the Court of Chancery, calling upon the mortgagor [to redeem his estate presently, or in default thereof to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption vAi\\- out possibility of recall (o). And also, in some cases of fraudulent mortgages (p),] such as twice mortgaging the same^ands -ndthout gi^"ing notice of the mortgage afready "T* effected (<7), [the fraudident mortgagor forfeits all equity of redemption whatsoever.] The mortgagee may also bring the estate to sale in satisfaction of his debt, (paying over the sui-plus proceeds, if any, to the mortgagor,) even •without resorting to the authority of a coiui; of equity, provided the security be taken (as is now the usual practice) in sucli fonn as to authorize that coiu'se of proceeding; and even if no power of sale be conferred by the terms of the mstrument, he may still bring the estat e to sale jn such manner as is provided by the recent act of 23 & 24 Vic^._145,(r). It is fru-ther to be observed, that where no suit is pend- ing in any court of equity, either for redemption on the one hand or foreclosiu-e on the other, but the mortgagee at- tempts to obtain possession by biiaging an action of of the mortgagor, charged with such 633 ; Wilmot v. Pike, 5 Hare, 14.) debt. Before this Act, in the ab- But preference is given, to a certain sence of an expressed intention, the extent, to the mortgagee in posses- personal estate of the deceased mort- sion of the legal estate ; (Goddard v. gagorwas primarily liable. Complin, 1 Cha. Ca. 119.) (o) As to the power of the Court (r) By this Act a mortgagee has of Chancery to direct, in such suit, a now several powers as incident to sale of the property instead of a fore- his estate, though not in form con- closure, see 15 & 16 Vict. c. 86, s. 48. ferred by the deed. These relate to {p) See Stat. 4 & 5 W. & M. c. 16. the selling, &c., the insuring against ((/) In cases where the land is fire, and the appointment of a re- mortgaged to several persons, each ceiver, who shall receive the rents ignorant of the other incumbrances, and profits as agent of the person the maxim qui prior est tempore, entitled to the property, subject to potior est jure, prevails, as the general the charge. Sects. 1 1 — 24. rule. (See Jones v. Jones, 8 Sim. 314 BK.II. OF RIGHTS OF rROPEETY. — PT.I. THINGS REAL. ejectment in one of the com-ts of the common law, such court is invested, by statute, T\4th the power of exer- cising a species of equitable interference ; for if the mort- gagor still possesses the equitable right of redemption, -y- he is enabled by 7 Geo. 11. c. 20, and 15 & 16 VicT. c. 76, s. 219, to apply to the common law court for relief; and that com-t -wdll accordingly compel the mortgagee to stay his proceedings, and to execute a reconveyance, u pon pay- ment of principal, interest and costs, to be computed by its officer(5). The state of the law, as above explained, ^\ith respect to mortgages, affords the reader an example of the dis- tinction referred to in a former place between legal and equitable estate (^). In the courts of common law, the ownership of the land, as we have seen, is considered as absolutely vested, upon the non-payment of the money advanced, in the mortgagee. The com-ts of equity, on the other hand, hold the mortgagor to be the true OAvner until a foreclosm-e takes place (m). There exists therefore, in respect of the same subject-matter, a legal and an equitable estate ; the former being vested in the mortgagee, the latter in the mortgagor. IV. [A fourth species of estates, defeasible on condition, are those held by statute merchant and statute staple (w) ; which are veiy nearly related to the vivum vadium before mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for {s) See Goodtitle v. Pope, 7 T. R. 203, 2nd ed. 185; Doe t;. Roe, 4 Taunt. 887; {u) Cashbornt). Scarfe,7 Vin. Ab. Doe V. Steele, 1 Dowl. 359 ; Hurd 156 ; 2 Eq. Ca. Ab. 728, S. C. and V. Clifton, 4 Ad. & El. 814 ; Sutton see Amherst v. Dawling, 2 Vern. 401. V. Rawlings, 3 Exch. 407 ; Filbeeu. (y) As to these estates, see 2 Inst. Hopkins, 6 Dow. & L. 264 ; Doe v. 322 ; 2 Saund. by VVnis. 69 c, n. (3); Louch, ibid. 270; Corder t). Morgan, Reeves's Hist. Eng. Law, vol. ii. pp. 18 Yes. 344. 161, 393. (0 Vide sup. p. 235 ; 1 Sand. Us. CHAP. VI. — OF ESTATES UPON CONDITION. 315 [money; the one entered into before the chief magistrate of some trading town, pursuant to the statute 13 Edw. I. De mercatorihus, and thence called a statute merchant : the other pui'suant to the statute 27 lEdw. III. c. 9, before the major "of the " staple ;" that is to say, the grand marib for the principal commodities or manufactures of the kingdom, formerly held by act of parKament in certain trading towns ; from whence this security is called a statute staple. They are both securities for debts acknowledged to be due; and originally permitted only among traders, for the benefit of commerce; whereby not only the body of the debtor may be imprisoned, and his goods seized in satis- faction of tEe~debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt~inayl3e satisfied; and, during such time as the cre- ditor so holds the lands, he is tenant by statute mer- chant or statute staple. Ther e is also a similar s ecm -ity, the recogniz auce in the nature of a st atute staple, acknow- ledged befo re either of the chief justices, or (out of ter m) before their substitutes, the m ayor of the staple at W est- minster and t he recorder of London ; whereby the benefit of this mei'cantile transaction is extended to all the king's subjects ill general, by vii*tue of the statute 23 Hen. VIII. c. 6, (amended by 8 Geo. I. c. 25,) which direct such re- cognizances to be enrolled and certified into chancery. But these, by the statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the hands of bona fide pur- chasers, from the day of their enrolment, which is ordered to be marked on the record.] All these securities, however, by statute staple, statute merchant, and recognizances in the nature of a statute staple, are now fallen into _disiise_(^') ; ha^ang been long (x) It has been remarked (see to incur, in certain cases, the same Burt. Compend. 298) that the law liability as if they were bound in a relative to statute staple is still so statute staple. As to the statutes far of practical importance, that by just cited, see also Regina f. Ellis, 33 Hen. 8, c. 39, and 13 E!iz. c. 4, 4 Exch. 652. persons indebted to the crown are 316 BK.IT. OF RIGHTS OF PROn^RTY. — PT. I. THINGS REAL. ago superseded by other more convenient and efficacions remedies, devised by tlie law in modern times for the benefit of creditors, especially by the statutes relative to bankrupts ( 7/ ). V. [Another similar conditional estate created by opera- ,tion of law, for secui-ity and satisfaction of debts, is called, an estate of elegit. What an elegit is, and why so called, ■svill be ftilly explained in a subsequent part of this work (2). At present it may be sufficient to mention that it is the name of a wint, foimded on the statute of Westminster the second (a),] by which, after a plaintiff or defendant has obtained judgment in an action, the sheriff gives him possession of the lands and tenements of the opposite party, to be occupied and enjoyed until the money due on such judgment is fiilly paid; [and during the time he_so holds them, he is called tenant by elegit. It is easy to observe that this is also a mere conditional estate, defea- sible as soon as the judgment debt is levied (J).] And by this writ, at one period, only one half of the lands and tene- ments of the judgment debtor could be seized in execution. For as the general right which a man possessed of aliening his lands by his own act did not (as is commonly sup- posed) extend, at the time of the passing of the statute of Westminster the second, to the whole of his lands (c), that statute pennitted them to be only partially affected by the process of law for his ordinary debts ; though on the other hand, by the statute De mercatorihus, passed in the same year( a. CII. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 329 [of the inheritance ; and a portion must first be taken out of it, in order to constitute a remainder.] 2. [A second rule to be observed is this ; that the re- mainder must commence or pass out of the grantor, at the t ime of the creation oftlie particular estate (o\~\ As where it is proposed to give to A. an estate for hfe, with remainder to B. in fee : here B.'s remainder in fee must pass from the grantor, at the same time Avith A.'s life estate in pos- session ; for if the estate idterior to that for life, continues in the grantor, it is a reversion, and no remainder ; and B. can take only by subsequent grant of this reversion. 3. It may also be laid dowm, as a third rule respecting the creation of remainders, that they must he limited to tahe effect in poss ession immediateh/ upon the determi na- tion of the particular estate, and neith er later no r earlier (p). Thus if A. be tenant for life, remainder to B. in tail, here B.'s remainder is to take effect in possession immediately upon A.'s death; or if A. and B. be tenants for their joint Hves, remainder to the sm'vivor in fee, here, on the death of either, the remainder comes into possession instantly ; and therefore both these are good remainders. But if the fLitm-e estate is to take effect in possession at any period later than the determination of the first, as if an estate be granted to A. during his life, and upon his death and one day after, to B. and his heirs, this is no remainder (q). So the fiitiire estate will be no remainder if it is not to await the proper and regular determination of the first, but to take effect in defeasance or abridgment of it ; as where an estate is limited to A. for life, but if B. pays him a certain sum of money, then immediately to B. and his heirs (r). But though a remainder cannot be limited (o) Plowd. 25 ; Litt. s. 721 ; Eac. (q) Colthirst v. Bejushin, Plowd. Ab. Remainder (C). 25 ; Fearne, by Butler, 307, 9th ed. (p) 1 Sand. Us. 148, 2nd edit.; (r) 1 Sand. Us. 143, 149; Sugd. Chudleigh's case, 1 Rep. 135 a; Bo- Gilb. 152, n. ; Fearne, by Butler, raston's case, 3 Rep. 21 a ; Co. Litt. 2(il, 9tli cd. 298 a. 330 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. to take effect in possession, until the particular estate re- gularly determines, yet eventually it may do so before that period. Thus if the particular estate detemiine by act of law (as by forfeiture) before its natural expiration, the remainder limited upon it will come into immediate pos- session, and is not required to Avait until the expiration of the period originally assigned. A remainder, Avhen created, is subject to many of the rules already laid do^vn with respect to reversions. Thus, in the case of a fi-eehold remainder, the remainder-man is seised as of fee (or as of freehold), but not "in his de- mesne;" vmless the particular estate be a term of years, when seisin in demesne may be properly alleged. So curtesy or dower may be claimed of a remainder in fee, if expectant on an estate for years, but not if expectant on a fifeehold. Thus, too, the -svrongfiil feoffment of the tenant for life or years, where the estate immediately expectant is not by way of reversion but remainder, had, at common law{t), the effect of displacing the remainder, and occasioning a forfeiture to the remainder-man, as m the other case to the reversioner. Moreover the imion of an estate in remainder vni\\ the particular estate on which it is expectant, -ooU produce a merger in the same cases (in general) and on the same principles, as if it were an estate in reversion {u). Hitherto oiu' remarks have related to remainders gene- rally considered ; but it is now time to turn our attention to the distinction which exists between remainders, as l)eing either vested or contingent. Vested remainders or remain- ders executed [are where the estate is invariably fixed to remain to a determinate person after the particular estate is spent. As if A. be tenant for twenty years, remainder {t) But it is otherwise since the {n) As to the merger of a term of passing of the statute 8 & 9 Vict. c. years in another term of years, where 106 (s. 1-), as to which, vide sup. p. the second is in remainder, see Bac. 322. Leases, &c. (S) 2. CH. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 331 [to B. in fee; here B.'s is a vested remainder.] Contin- gent or executory remainders are those limited either to an uncertain person, or upon an uncertain event (x) : that is, to a person not in esse or not ascertained (y) ; or upon an event A^'hich may not happen at all, or not happen until after the particular estate is determined {z). The first kind, or those limited to an uncertain person, may be exemplified by a limitation to A. for life, remainder to the first son of B., Avho has then no son born (a); for here the person is not in esse : or to A. and B. for their joint lives, remainder to the siu'\avor in fee ; for here the person is not ascertained (b). The second kind, or those limited on an uncertain event, may be exemplified by a lease to A. for life, remainder to B. for life, and if B. should die before A., then the remainder to C. for life (c) ; for B.'s dying- before A. is an event that may never happen, and therefore the remainder to C. is contingent : or, as another instance, by a lease to A. for life, and after the death of B. the lands to remain to another in fee {d) ; for though it (x) Blackstone says (vol. ii. p. " limited is certain in event, but the 169) that they are where the re- " determination of the particular mainder is "limited to take effect " estate may happen before it. 4thly. " either to a dubious and uncertain " Where the person to whom the " person, or on a dubious and uncer- *' remainder is limited is not yet " tain event ; so that the particular " ascertained, or not yet in being." "estate may chance to be deter- ( Fearne, by Butler, 5, 9th ed.) " mined, and the remainder never But all these may be reduced to " take effect." (And see Roberts i;. two, as in the text, with the aid of Roberts, 2 Bulst. 130.) Mr. Fearne the distinctions there stated, as to enumerates four different kinds the nature of the uncertainty to of contingent remainders: — " 1st. which the person or event may be " Where the remainder depends en- subject. " tirely upon a contingent detenni- (y) Fearne, by Butler, p. 9, 9th "nation of the preceding estate ed. See Doerf. Bills v. Ilopkinson, " itself. 2n(lly. Where the contin- 5 Q. B. 228. " gency on which the remainder is (z) Fearne, by Butler, p. 8, 9th ed. " to take effect, is independent of the («) Ibid. p. 9. " determination of the preceding (/') Ibid, "estate. Srdly. Where the condi- (c) Ibid. p. 7. " tion upon which tlie remainder is {d) Iliid. p. S. 332 BK.II. OF EIGHTS OF rEOPERTY. — TT.I. THINGS REAL. is certain that B. must die, liis death may not happen until after A.'s life estate shall be determined. It is to be observed, however, that if there be no uncer- tainty in the person or event upon wliich the remainder itself is limited, the mere uncertainty whether it mil ever take effect in possession, is not sufficient to give it the character of a contingent remainder (e). Thus in the case of a lease to A. for life, remainder to B. for life, the limitation of the remainder is to a person in being, and ascertained, and the event on which it is limited is certain, viz. the determination of A.'s life estate : it is therefore a vested, and not a contingent, remainder (/) : and yet it may possibly never take effect in possession ; because B. may die before A. "We may also remark, that an estate limited to an existing and ascertained person upon the determination of an estate tail, as where there is a limitation to A, in tail, remainder to B. in fee, is a vested and not a contingent remainder ; for it is considered in law, that the estate tad, being a particidar estate (g), is sm-e to come to an end, and that the failm-e of issue is consequently not a contingency, but a certain event. The case falls, therefore, A^^thin the definition of a vested remainder ; the estate limited to B; being one that is invariably fixed to remain to a determinate person after the particidar estate is spent. It was laid doAvn in a former place, that no remainder can be limited after a fee simple (h). A contingent remain- ^ der may, however, be limited in substitution for another y contingent remainder in fee simple (/) ; as if land be given — — ■ •► to A. for life, and if he have a son, then to that son in fee, '^^^'^*^'^^and if he have no son, then to B. in fee. This has been (e) Fearne, by Butler, 216, 9th ed. (i) See Fearne, by Butler, 373, 9th (/) Ibid.; see Doe D. Scudamore, ed. ; Loddington v. Kime, 1 Lord 2 Bos. & Pul. 296. Eaym. 208 ; Keene v. Dickson, 3 {g) Vide sup, pp. 248, 320. T. R. 495 ; Crump v. Norwood, 2 {h) Vide sup. p. 326. Marsh. 161. f en. VIT. — OF ESTATES IN POSSESSION, REVEESION, ETC. 333 sometimes called a contimjency with a double aspect (k), and it is no violation of tlie rule above alluded to ; for such remainders as these are concurrent, and not consecutive; and though both are remainders on the particular estate, they are not remainders on each other (/). It is laid down by Lord Coke, as to the natm-e of the contingency on which a remainder may be hmited, that it must be potentla propinqua, which he also designates as a common possibility, and must not be potentia remota, by Avhich he seems to mean a possibihty that cannot reason- ably be expected to happen (w); and of tliis doctrine Black- stone (w) gives the following example, which is substantially the same with one of those adduced by Lord Coke himself. [A remainder to a man's eldest son who hath none, we have seen, is good, for by common possibility he may have one ; but if it be limited in particidar to his son John or Richard, it is bad if he have no son of that name, for it is too remote a possibihty that he should not only have a son, but a son of the particular name.] But the rule that a remainder cannot be limited upon a potentia remota (sometimes called a double possibility, or a possibility upon a possibility) is no longer generally recognized (o) ; and as {k) Fearne, by Butler, 373, 9th 360, 9th ed.) Where the contingent ed. ; Loddington v. Kirae, 1 Lord remainder in fee is created by one of Raym. 208. those conveyances which derive their (Z) Though a contingent remain- operation from the statute of uses der in fee is a disposition (subject to (as to which hereafter), it is clear the particular estate) of the whole that the fee remains in the grantor inheritance, yet, as it is one which till the contingency happens; and cannot take effect until the contin- where it is created by a will, the fee gency happens, a question has been descends to the heir at law. 2Saund. made as to what becomes of the in- by Wms. 381 a, n. (16). heritance in the meantime. Ac- (w) Cholmley's case, 2 Rep. 51 ; cording to the older authorities, it is Co. Litt. 378. in abeyance, or, according to Lord (;«) 2 Bl. Com. p. 170. Coke's allusion, caput inter nubila (o) See Fearne, by Butler, 251, condit. (Co. Litt. 342 b; and see 40 n. (c), 9th ed. ; Third Real Pro- Edw. 3, 9.) But Mr. Fearne argues perty Rep. p. 29 ; Lord St. Leo- (and his opinion is now generally nards' judgment in Cole v. Scwell, received) that it continues to reside 4 Uru. & ^¥ar. 1, 32. in the grantor. (Fearne, by Butler, 334 BK.II. OF RIGHTS OF TROPERTY. — PJ. I. THINGS REAL. thus exemplified, at least, is not of a satisfactory cha- racter. Contingent remainders are subject to the following two general rides : — 1. If they amount to afreeJiold, [t/iey cannot be I'miited on an estate for years, or any other particular estate less than a freehold. Thus if land be granted to A. for ten years, with remainder in fee to the right heirs of B., this remainder is void ; but if granted to A. for life, with a like remainder, it is good (p). For, unless the freehold passes out of the grantor at the time when the remainder is cre- ated, such fi-eehold remainder is void (g) : it cannot pass out of him without vesting somewhere ; and in the case of a contingent remainder it must vest in the particidar tenant, else it can vest nowhere : unless, therefore, the estate of such particular tenant be of a freehold natvu'e, the freehold cannot vest in him, and consequently the remainder is void.] 2. Every contingent remainder must become vested either during the continuance of the particular estate, or eo instanti that it deter mines {r). It is ob\dous that when the contingent person comes into being or is ascertained during the continuance of the par- ticular estate, or the contingent event takes place diu-ing that period, the remainder ceases to be a contingent, and becomes a vested one. Thus if A. be tenant for life, with (p) Chudleigh's case, 1 Rep. 130a. " ticular estate, or eo instanti that it {q) See Fearne, by Butler, 281, "determines." And this is the form 9th ed. in which it is often expressed. But (r) Archer's case, 1 Rep. Q6 b ; where a remainder is not originally Co. Litt. 298 a; Bac. Ab. Remainder contingent, it is necessarily vested (D.); 2 Saund. by Wms. 387, n. (7) ; from the time of its creation; and Fearne, by Butler, 307, 310, 9th ed. ; cannot be said properly to vest 2 Bl. Com. 168, in which last book during the continuance of the par- the rule is laid down, as to remain- ticular estate, and still less upon its ders generally, thus : " tha. the re- determination. The rule, therefore, " mainder must vest in the grantee has, in effect, no application except " during the continuance of the par- to contingent remainders. CII. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 335 remainder to B.'s eldest son, then imbom, in tail ; the instant that a son is bom, the remainder is no longer con- tingent but vested (s). On the other hand, if the person comes into being or is ascertained, or the CAent happens, not dming the continuance of the particular estate, but immediately on its determination, the remainder then of course takes effect as an estate in possession ; or, in other words, vests in possession, instead of vesting, as in the case first supposed, in point of interest onlj. Thus if land be given to A. and B. dm-ing their joint lives, remainder to the sundvor in fee ; this remainder, immediately on the death of either, becomes vested in possession in the sur- A-ivor. The meaning of the ride, therefore, imder consi- deration, is, that a contingent remainder must either vest as a remainder dvu'ing the particrdar estate, or as an estate in possession at the detennination thereof; and cannot remain in contingency after the latter period. From this the important doctrine followed, that so long as a remainder was in contingency, it always requu-ed the continuing support of the particular freehold estate (<), so that if that estate came by any means to an end before the contingency happened, the remainder was altogether defeated (u) ; for befoi'e the happening of the contingency, there was no person entitled to take, or in whom the remamder could vest ; and, by the rule tmder considera- tion, it coidd no longer exist as a contingent remainder, because the particidar estate Avas determined. Thus if A. were tenant for life, with remainder to B.'s eldest son, then unborn, in tail; if A. died before the contingency happened, that is, before B. had a son, the remainder was absolutely gone : for the particular estate was determined before the remainder could vest (x). Nay, it has been held that, by the strict ride of law, if A. Avere tenant for («) 2 Bl. Com. 1(;9. 386, 387 ; 2 Bl. Com. 171 ; Fearne, (0 Colthirst V. Bejushin, Plowd. by Butler, 316, 9th ed. 25 J Fearne, by Butler, 307, 9th ed. (j) 2 Bl. Com. 169. (?() Purefoy v. Rogers, 2 Saiind. 336 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. life, remainder to his own eldest son in tail, and A. died withoixt issue born, but leaving liis wife enceinte or big with child, and after his death a posthumous son was bom, this son could not take the land by virtue of the remainder: for the particular estate determined before there was any person actually in existence in whom the remainder could vest(7/). This decision, however, was ultimately reversed, and the case was afterwards provided for by a positive law; for [it was enacted by statute 10 & 11 Will. III. c. 16, that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father's lifetime ; that is, the remainder is allowed to vest in them while yet in their mother's womb (2^).] The same consequence was held to follow from the de- termination of the particular freehold estate before the contingency happened, even though that estate determined prematurely, and were destroyed by the voluntary act of the particular tenant himself (a). Thus, a tenant for life, with remainder to his imborn sons successively in tail, remainder over to a stranger in fee, might, before a son was born, have destroyed the life estate by a wrongful feoffment in fee, or have siu'rendered it to the person in ultimate remainder, so as to merge it in the fee ; and in either case the contingent remainder to the son would {y) Reeve v. Long, 1 Salk. 228 ; child takes by virtue of this statute, 4 Mod. 282, S. C. he is entitled to the intermediate (2) It was this case of Reeve property from the death of the pa- ». Long, (in which the House of rent; though, where a posthumous Lords reversed the judgment of child takes by descent, divesting the the Courts of King's Bench and estate of the supposed heir, he takes Common Pleas,) that gave occasion only from the time of his birth ; to the statute mentioned in the text. (see 2 Saund. by Wms. 387 a, n. (7); Thecaseadjudicatedonbythe Lords, Thclluson v. Woodford, 11 Ves. 139; laid down the law as to estates by Goodtitle v. Newman, 3 Wils. 526 ; will, and therefore the statute speaks Christian's Bl. Com. vol. ii. p. 169.) merely of those "by marriage or (a) Chudleigh'scase, 1 Rep. 135 b; " other settlement." It may also Archer's case, ibid. QQ b. be noticed, that where a posthumous en. VII. — or ESTATES IN POSSESSION, REVERSION, ETC. 337 have been defeated (b). In these cases, therefore, it was [necessary to have trustees appointed to preserve the contingent remainders, in whom there was vested an estate in remainder for the hfe of the tenant for life, to commence when the estate determined (c) : and then, if his estate for life determined othenvise than by his deathj] for ex- ample, by wrongftxl alienation, or by siuTender, as above supposed, [the estate of the trustees for the residue of his natiu-allife would then take effect; and become a particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by Sir Orlando Bridgman, Sir Geofii'ey Palmer, and another eminent coimsel, who betook them- selves to conveyancing diu'ing the time of the civil wars ; in order thereby to secure in family settlements a provi- sion for the fixture children of an intended man-iage, who before, were usually left at the mercy of the particular tenant for life ; and when, after the Restoration, those gentlemen came to fill the first offices of the laAv, they sup- poited this invention within reasonable and proper boimds, and introduced it into general use.] When land was settled in the form here supposed, that is, by a Hmitation to the parent for life, and after his death to his first and other sons or children, in tail, and trustees were interposed to preserve the contingent remainders, this was called a strict settlement. The estate tail immediately expectant on the parent's life estate, was not only exempt fi'om the danger of being defeated before the first son was bom, but remained unalienable until he attained the age of twenty-one ; at that period, however, as residts fi'om former explanations ( " render or me rger, of any preceding estate of freehold, in " the same manner, in all respects, as if such detei'mination *' had not happen ed" (^)- In connection also with the subject of contingent re- mainders, occurs that remarkable rule of construction so famihar in oiu- books under the appellation of the Rule in Shelley s case(i). This ride is propounded in Lord Coke's Reports in the following form — that Avherever a man by any gift or con- veyance takes an estate of fr eehold, and in the same gift or conveyance an estate i s limited either mediately or im- mediately to liis heirs in fee or in tail, the word heirs is a word of limitation, and not of purchas e (^j). In other words, it is to be understood as expressing the quantity of estate which the party is to take, and not as conferring any distinct estate on the persons who may become^his repre- sentatives. (/*) In connection with this enact- modern cases on the subject : Roe nient it is necessary also to advert v. Bedford, 4 Man. & Sel. 362 ; Doe to 8 & 9 Vict. c. lOfi, s. 4, " that v. Jesson, 5 Mau. & Sel. 95 ; Doe v. " a feoffment made after 1st October, Jones, 1 Barn. & Cres. 243 ; Doe v. " 1845, shall not have any tortious Harvey, 4 Barn. & Cres. 610; Right " operation." v. Creber, 8 Dow. & Ry. 718 ; Doug- (i) See the elaborate dissertation las v. Congreve, 4 Bing. N. C. 1 ; on this rule by Mr. Fearne, Fearne, Harrison v. Harrison, 7 Man. & G. by Butler, 28—208, 9th ed. ; the ob- 938 ; Doe d. Cannon v. Rucastle, 8 servations on the rule by Mr. Har- C. B. 876. grave, in Harg. Law Tracts, and the (j) Shelley's case, 1 Rep. 104 a. argument of Mr. Justice Blackstone, As to the terms in which the rule is in Perrin v. Blake, ibid. The in- expressed, see Fearne, by Butler, 76, stances which call for the application 9th ed. The rule would seem still of this rule are very numerous in toapply.though the ancestor's estate our law. But they occur much more of freehold is of a nature that may frequently where the limitation is determine in his lifetime ; Brook's by will, than where it is by deed. Estates, 76; Fearne, ubi sup. p. 29 ; The following are among the many Curtis v. Price, 12 Ves. 89. z2 340 BK. II. OF RIGHTS OF PROPERTY.— rX. I. THINGS REAL. Tliis indeed is the ordinary force of the word heirs; for, as may be inferred fi-om the former remarks on the subject of estates of inheritance, if land is given to a man and his heirs, he takes a fee simple (A); if to him and the heirs of his bodj, a fee tail(/); in which cases, the word plainly ope- rates as a mere Hmitation of the quantity of his estate. But where land is given to A. B. for his life, and on his decease to his heu'S, or to the heirs of his body; it might be supposed, fi-om the doctrines we have been considering with respect to remainders, that this confers a separate estate on his representatives; and that he will take for his own life only, with contingent remainder to his heirs ; or to the heirs of his body ; according to the apparent pm-port of the grant. And such ulterior limitation would in fact be a contingent remainder to them, if the previous life estate had been limited, not to A. himself, but to another person. By the effect, however, of the rule which we are considering, the heirs or heirs of the body of A., will not take in re- mainder, (in the case supposed,) nor will A. himself take a mere life estate, but a remainder also in fee or tail; and as that remainder Avill absorb, according to the law of mer- ger (tw), his life interest, the result upon the whole convey- ance vrill be to give him an estate in fee (or in tail, as the case may be) in possession. And upon the same principle, if another particidar estate, by way of vested remain der — j^ up^n A.'s lite estate (for example, a life esta te to B.) be inteiiJosed before the idterior limitation to A.'s heirs , or the hen's of his body, that idterior limitation will take effect in A. himself; but as a vested remainder only in fee or ta il, because the interveni ng estate will in that case prevent a merger! If the estate inteii^ osed, indeed, be not a v ested but a contingent remainder, A. will take (as in the ca se fi rst supposed ) the entire fee ; for while the contingency is insuspense, there is nothing to prevent the consolida tion o f his life estate wit h the idterior limitation to his h eirs ; {k ) Vide sup. p. 238. (m) Vide sup. p. 322. (/) Vide sup. p. 247. CII.VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 341 yet lie takes it suh modo only, and in sxicli manner that it w ill open and let in the intennediate estate when the con- t ingency happe ns ( 71 ). It is to be observed, that the interest which, by the effect of this rule passes to the ancestor, is of a kind very different from that which would belong to him if the words were to receive their more obvious construction. According to the rule, he becomes, in the first case we have supposed, pro- prietor of the whole fee, which it is consequently in his power to aliene at his pleasure (subject, Avhere the estate is in tail, to the ordinar)^ restrictions); and in the two other cases, his interest is of the same description, except as regards the intervening estates: while, on the other hand, if he took an estate for life only (though with remainder to his heirs), he could ahene for no longer period than his own life, and he would have no control over the inheritance. With respect to the reason of the rule, it is involved in much obscurity (0). But according to the prevalent opi- nion, it was estabhshed with a view to the protection of the feudal lord, who would have been defrauded, it is said, of his wardship and other perquisites, if the heir had been allowed to take by way of remainder, and not by heredi- tary succession. And the argument by which it is best supported seems to be in substance as follows: that where by the same conveyance land is given to a person for his life, and afterwards to the heirs of the same person, it is reasonable to presume that he is himself intended in both cases as the sole object of the gift ; and that no benefit is designed to his heirs, except what they may derive by operation of law from his own antecedent seisin. We shall conclude this chapter with notice of a legisla- tive provision Avhich applies alike to estates in remainder (n) Fearne, by liutler, 29, 9th ed. ; stone in the case of Periin v. Blake, Lewis Bowles's case, 11 Rep. 79 b. in Hargrave's Law Tracts ; Reeves's (0) See Fearne, by Butler, 83, 9th Hist. Eng. Law, vol. iii. p. 8. cd. ; argument of Mr. Justice Black- 342 BK. II. OP RIGHTS OF PROrERTY. — PT. I. THINGS REAL. and to those in reversion. [In order to assist such persons as have anj estate in remainder, reversion, or expectancy- after the death of others, against fi'audulent concealment of their deaths, it is enacted by the statute 6 Anne, c. 18, that all persons on whose hves any lands or tenements are holden shall (upon appHcation to the Coiui; of Chancery and order made thereupon) once in every year, if required, be produced to the comt or its commissioners; or, upon neglect or refiisal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements till the party shall appear to be living ( p).] (p) See Ex parte Grant, 6 Ves. 551 . Rg Isaac, 4 Myl. & Cr. 11 ; 512; Ex parte Whalley, 4 Russ. Re Lingen, 12 Sim. 104. ( 343 ) CHAPTER VIII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, CO- PARCENARY, AND COMMON. ["We come now to treat of estates, with respect to the number and connection of their owners, the tenants who occupy and hold them (a). And, considered in this view, estates of any quantity or length of duration, and Avhether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in co- parcenary, and in common. I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest during his estate therein. This is the most common and usual way of holding an estate ; and therefore we may make the same observations here that we did upon estates in possession, as contradis- tinguished from those in expectancy, in the preceding chapter : that there is Httle or nothing pecuhar to be re- marked concerning it, since all estates are supposed to be of this sort,] unless the contrary is expressed ; [and in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. We shall therefore proceed to consider the other three species of estate, in which there are always a pluraHty of tenants.] All the three last-mentioned species of estate have this common characteristic, — that the tenants hold pro indi- (a) Vitle sup. p. 235. 344 BK. II. OF RIGHTS OF rEOrEllTY. — FT. I. THINGS REAL. viso, or promiscuously (&). So that one person is not seised or possessed exclusively of one acre, and anotlier person of anotlier, (for then they would be tenants in severalty,) but the interest and possession of each extend to eveiy specific portion of the Avhole land of -which they are joint-tenants, coparceners, or tenants in common. And accordingly, though only one of them should happen to be in actual possession, yet his possession is considered for many pm^oses as that of all (c). But in many points of Aaew these diiferent species of estate are materially dis- tinguishable from each other in their chai'acter and -pvo- perties, and it will be necessarj^ therefore to consider them separately, and in succession. II. An estate then in joint tenancy (d) is where an estate is acquired by two or more persons in the same land, by the same title (not being a title by descent), and at the same period; and without any limitation by words im- porting that they are to take in distinct shares. Thus, if there be a feofl&nent of lands to Jl. and B., without more, this makes them joint-tenants of the fi'eehold ; if to A. and B. and their heirs, this makes them joint-tenants of the fee. [The estate so acquired is called an estate in joint-tenancy (e), and sometimes an estate in Jointure, which word, as well as the other, signifies an union or conjunction of interest; though in common speech the term jointure is usually confined to that estate, wliich, by (b) Co. Litt. 189 a, 190 b, 163 a. or their own benefit, or for the benefit (c) See Doe v. Taylor, 5 Barn. & of any person or persons other than Adol. 583 ; Ford v. Grey, 1 Salk. the person or persons entitled to the 285 ; Doet). Keen, 7 T. R. 386; Doe other share or shares, such possession V. Pearson, 6 East, 173. But now shall not be deemed to have been by the Limitation Act, 3 & 4 Will. the possession of such last-nien- 4, c. 27, s. 12, if one or more of tioned person or persons, or any of several persons entitled as copar- them. ceners, joint-tenants, or tenants in {d) As to this estate, see Co. Litt. common, shall have been in the pos- 180 a — 188 b ; Amies v. Skillern, 14 session of the entirety, or more than L. J. (V. C.) 165. his undivided share or shares,/o/- Ids (<>) Litt. s. 277. C. VIII. — ESTATES IN SEVERALTY, JOlNT-TEN^iNCY, ETC. 345 [\-irtue of the statute 27 Hen. VIII. c. 10, is fi-equently vested in the husband and wife before marriage, as a fuU satisfaction and bar of the woman's dower (ff).~\ This estate of joint-tenancy has several conditions and properties, which require to be distinctly pointed out before a just conception of its nature can be attained. 1. Among joint-tenants there is a iinity of title (h), that is, their estate [must be created by one and the same act, whether legal or illegal, — as by one and the same grant, or by one and the same disseisin (z).] 2. The estate of joint- tenants ves^s in them at one and the same period (k). Thus, (though in a case of remainder to A. and B. and their heirs, after a pre\dous life estate, they take in joint-tenancy, because they take at once a vested remainder, yet) if an estate be granted to J. S. for life, with remainder to A. and the eldest son of B. (B. having no son at the time), and their heirs, A. does not take in joint-tenancy mth B.'s eldest son ; because A. takes a vested remainder in a moiety immediately on the execution of the conveyance, while the remainder in the other moiety does not vest until a son is born to B. ; nor at aU if J. S. dies first. And if a son is born to B. in J. S.'s lifetime, stiU A, had up to that period no joint interest mth him ; and the tenancy, not being ab initio a joint-tenancy, cannot be- come so aftei'^vards. 3. Among joint tenants there is also a similarity of interest as regards the quantity of estate. [One joint-tenant cannot be entitled to one period of dura- tion or quantity of interest in lands, and the other to a different ; one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail(Z).] On the other hand, however, there may be joint-tenants (g) Vide sup. p. 278. raised by way of use or devise (as to (h) 2 Bl. Com. 181. which vide post, bk. ii. pt. i. cc. (0 Litt. s. 278. XVIII., XX.), see Fearne, by Butler, (/f) 2 Bl. Com. 181; Co. Litt. 312, 9th ed. ; Co. Litt. by llarg. 188 a. But with respect to the ap- 188a, n. (13). plicability of this doctrine to estates (/) Co. Litt. 188 a. 346 BK. II. OF RIGHTS OF FROrERTY. — PT. I. THINGS REAL. as to a portion of the fee, with a several interest in one or more of them as to the residue. Thus, if land be granted to A. and B. for their lives, and to the heirs of A. ; here A. and B. are joint-tenants of the freehold during their joint lives, and A. has a several inheritance in fee-simple ; or if land be given to A. and B., and the heu-s of the body of A. ; here both have a joint estate for hfe, and A. has a several mheritance in tail(m). 4. There is an entirety and equality of interest among the tenants ; for while thej con- tinue to hold together, they are not considered as holding in distinct shares, but each is equally entitled to the whole. And, on the other hand, though the entirety ceases for the piu-pose of alienation, every co-tenant being entitled (if he thinks proper) separately to transfer his own share, yet the equaHty remains ; for each is capable of convejong an equal share with the rest. This combination of entirety of interest mth the power of ti-ansferring in equal shares, is expressed by the antient law maxim, that eveiy joint-tenant is seised per my et per tout (n). And this is considered as an essential character- '7' ^ (m) Litt. s. 285. Blackstone's ex- pression (vol. ii. p. 181) is, that " A. has the remainder in severalty" in these cases. But Littleton says, " one hath a freehold and the other a fee-simple," and Lord Coke, that "they are joint- tenants for life, and the fee-simple or estate tail is in one of them ;" and though he afterwards speaks of "him in remainder," his remarks show that it is not a re- mainder properly so called ; and, that though a joint-tenancy for life sub- sists with all the usual incidents, yet the estate of the joint- tenant, who has the fee, is for many pur- poses (particularly that of alienation) an entire inheritance, not hroken into a particular estate and re- mainder thereon. (Co. Litt. 184 b, and note 2, by Harg. ; Wiscot's case, 2 Rep. 60 b.) See also Forrest v. Whiteway, 3 Exch. .367. (n) Blackstone (vol. ii. p. 182) gives, as the meaning of this expres- sion, that each has " the entire pos- session, as well of every parcel as of the whole," and in this he follows the words of Littleton, s. 288. The expression, however, seems more properly to import that they are all jointly seised of the whole, with a right to transfer in equal shares, as explained in the text. Accordingly, in commenting on the words per my et per tout, Lord Coke (citing Brac- ton) remarks, " Et sic totum tenet, et nihil tenet, soil, totum conjunctim et nihil per se separatim." " And albeit " they are so seised, as for example, C. VIII. — ESTATES IN SEVERAETY, JOINT-TENANCY, ETC. 347 istic of a joint estate ; and therefore if an estate in fee be given to a man and his wife, they are not properly joint- tenants, but are said to be tenants by entireties ; [for hus- band and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my ; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor (o).] And so if a joint estate in land be conveyed to a husband and wife, and to a third person, the husband and Avife take a moiety, and the third person the other moiety, in the same manner as if the grant had been to only two persons {p). From the entirety of interest in each of the co-tenants results the most remarkable incident or consequence of a joint estate, viz., that it is subject to survivorship. For when two or more persons are seised of a joint estate of freehold, or are jointly possessed of any chattel interest in lands, [the entire tenancy, upon the decease of any of them, remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance or a common free- hold only, or even a less estate (9). This is the natm-al and regular consequence of the imion and entirety of their interest.] One has not a distinct moiety from the other, but while the joint-tenancy continues each joint-tenant has [a concurrent interest in the whole ; and therefore, " where there be two joint-tenants Est. 131 ; and see Back v. Andrew, " in fee, yet to divers purposes each 2 Vern. 120 ; Purefoy v. Rogers, '' of them hath but a right to a 2 Lev. 39 ; Greneley's case, 8 Rep. " moiety, as to enfeoff, give, or de- 71b; Beaumont's case, 9 Rep. 138 ; " raise, or to forfeit, &c." (Co. Litt. Doe v. Parratt, 5 T. R. 652. 186a.) As to the meaning of the ex- (p) Litt. s. 291. But if a grant pression per myet per tout, the reader be made to a husband and wife, ex- is also referred to a learned note by pressly to hold as tenants in common, Mr. Serjeant Manning, Murray v. they hold accordingly. (Co. Litt. Hall, 7 C, B. 455, n. (a). 187 b.) (0) Litt. s. 665; Co. Litt. 187 b ; {q) Litt. ss. 280, 281. Bro. Abr. t, cut in vita, 8; 1 Prest. 348 BK. II. OF RIGHTS OF rROPERTY. — PT. I. THINGS RE^VL. [on the death of his companion, the sole interest in the "whole remains to the survivor. For the interest Avhich the sur^dvor originally had, is clearly not divested by the death of his companion ; and no other person can now claim to have a, joint estate with him, for no one can now have an interest in the Avhole, accruing by the same title, and taking effect at the same time vnth his own ; neither can any one claim a separate interest in any part of the tenements, for that would be to deprive the smndvor of the right which he has in all and every part. As, therefore, the smnavor's original interest in the whole still remains, and as no one can now be admitted, either jointly or severally, to any share with him therein, it follows that his ovm. interest must noAv be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that Avas created by the original grant. Tliis right of suiwivorship is called by our antient au- thors (r) the jus accrescendi, because the right, upon the death of one joint-tenant, accumulates and increases to the survivors; or, as they themselves express it, ''pars ilia communis accrescit supers titibus, de persona in personam, usque ad ultimam. superstitem."'\ And the rule is that jms accrescendi prafertur onerihus (s) ; so that no dower or ciui;esy can be claimed out of a joint estate (i). Indeed even where one of the joint-tenants alienes his share (which discharges it from any claim of his co-tenant in re- spect of siu-vivorship), yet the A\dfe of the alienor shall not be entitled to her dower (m); the reason of which seems to be, that the land never was in his seisin, except as sul^ject to the paramomit claim of the smwivor ; and therefore there was no seisin out of which the dower can arise. The remaining subject for om- consideration is, how an (r) Bracton, 1. 4, tr. 3, c 9, s. 3 ; sup. pp. 272, 269. Fleta, 1. 3, c. 4, s. 2. («) Co. Litt. 31 b, and n. 4, by (s) Co. Litt. 185 a. Harg. {t) As to dower and curtesy, vide C. VIII. — ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 349 estate in joint-tenancy may be dissolved or destroyed. And this may be done : — 1 . By partition. Tlius, if two joint-tenants agree to part their lands, and hold to them in severalty, and execute a proper deed for the pur- pose {x), they are no longer joint-tenants, for they no longer hold promiscuously. And it follows that the right of siu- vivorship also, is by such separation destroyed (y). [By , com mon l aw all the joint tenants might agree to mate partition or the lands, but one of them could not compel the other so to do (2;) ; for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the vmited possession without a similar miiversal consent.] But afterwards, [by the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. B^Trjoint-terrants, either of inheritances or ' other less estates,] were, in case of refusal by any of them, [compellable by writ of partition to divide theii* lands,] and though this, together Avith other antient forms of action, has been lately abolished («), one joint-tenant is still en- titled to file his bill in equity against the other for a par- tition (6) : a com'se of proceeding to which it had been long usual to resort, and which in practice had quite super- seded the antient wi'it (c). 2. The jointure may he de-^ / jj strayed hy alienation without partition. [As if one joint- .^--y,^^-,-^ tenant ahenes and conveys his estate to a third person : — ■.■*■ - here the joint-tenancy is severed, and turned into tenancy in •^•y^^' ^^O' common (c2) ; for the grantee and the remaining joint-tenant hold by different titles, — one derived from the original, the other fr-om the subsequent, grantor ; though, till par- tition made, the undivided tenancy continues.] And so if (.r) By 8 & 9 Vict. c. 106, s. 3, a may aJso be had to compel a parti- partition must be by deed. tion in respect of copyhold and ciis- («/) Co. Litt. 188 a, 193 a. tomary estates. («) Litt. s. 290. (c) See Co. Litt. by Harg. I(j9 a ; («) By 3 & 4 Will. 4, c. 27, s. 36. n. (2) ; 1 Fonb. Tr. Eq. 18. {h) By 4 & 5 Vict. c. 35, s. 85, {d) Litt. s. 292. recou;se to tlie Court of Ciiaucery 350 BK. II. OF RIGHTS OF PEOPERTT. — PT. I. THINGS REAL. one of two joint-tenants releases his share to the other (e), the joint-tenancy is dissolved, and turned to an estate in severalty. [But a devise of one's share by vrill is no severance of the jointure,] and jus accrescendi prtsfertur ultimce voluntati (f) : [for no testament takes efiect till after the death of the testator; and by such death, the right of the svu'vivor, which accrued at the original creation of the estate and has therefore a priority to the other (g), is ah'eady vested {h).~\ 3. The jointure may also he de- stroyed hy an accession of interest. Thus, [if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the join- ture {{),'] for it renders their interests dissimilar as regards the quantity of estate ; though, [if an estate is o riginally limited to two for life, and after to the heirs of one ^f them, the freehold shall remain in jointvu^e, without merging in the inheritance ; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate (A).] It is proper to add, that [whenever or by whatever means the jointm'e ceases or is severed, the right of siu'vivorship ox jus accrescendi the same instant ceases with it (Z). Yet, if one of three joint-tenant alienes his share, the two re- maining tenants still hold their parts by joint-tenancy and survivorship (m) ; and if one of three joint tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remain- ing parts are still held in jointm'e (w). (e) See Avery v. Cheslyn, 3 Ad. (i) Cro. Eliz. 470. & El. 75. (A-) Wiscot's case, 2 Rep. 60; Co. (/) Co. Litt. 185 b. And even Litt. 182 b. where the joint tenant so devising (Z) " Nihil de re accrescit ei, qui survives his companion, the devise nihil in re quando jus accresceret is void. Swift v. Roberts, 3 Burr. habet." — Co. Litt. 188 a. 1488 ; Ambl. 617. (m) Litt. s. 294. (g) Co. Litt. 185 b. («) Litt. s. 304. (h) Litt. s. 287 ; 3 Burr. 1488. C. VIII. — ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 351 [In general it is advantageous for the joint-tenants to dissolve tlie jointm-e ; since thereby the right of survivor- ship is taken away, and each may transmit his own part to his OAvn heirs. Sometimes, however, it is disadvan- tageous to dissolve the joint estate : as if there be two joint-tenants for life, and they make partition, this dissolves the jointure ; and, though before they each of them had an estate in the whole for his own life and the life of his com- panion, now each has an estate in a moiety only, for his own life merely ; and on the death of either, the rever- sioner shall enter on his moiety (o).] III. [An estate held in coparcenary (p) is where lands of inheritance descend from the ancestor to two or more per- sons. It arises either by common law or particular custom. By common law : as where a person seised in fee simple or in fee tail dies, and his next heirs are two or more females, his daughters, sisters, aiuits, cousins, or their representa- tives ; in this case they shall all inherit, as will be more fuUy sho^Ti, when we treat of descents hereafter ; and these co-heirs are then called coparceners, or, for brevity^^ar- ceners only (g) ;] though in some points of view the law considers them as together making only one heir (r). [Parceners by particular custom are where lands descend, as in gavelkind, to aU the males in equal degree, as sons, brothers, uncles, &c. {s).~\ An estate in coparcenary resembles, in some respects, that in joint-tenancy, there being the same miity of title and similarity of interest. But in the following respects they materially differ: — 1. Parceners always claim by de- scent, whereas joint-tenants always claim by the act of parties. [Therefoi-e, if two sisters pm-chase lands, to hold to them and their heirs, they are not parceners, but joint- (o) 1 Jones, 55; Co. Litt. 191a. (r) Co. Litt. 163 b, IG-ta; Vin. {p) As to this estate, see Co. Litt. Ab. Parceners (Q) ; and see R. v. 163 a— 180 a. Bonsall, 3 B. & C. 173. (q) Litt. ss. 2il, 242. {s) Litt. s. 265. 352 BK. II. OF RIGHTS OF rROPERTY. — PT. I. THINGS REAL. [tenants (0; and hence it likewise follows, that no lands can be held in coparcenary but estates of inheritance, which are of a descendible nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint- tenancy.] 2. There is no entirety of interest among co- parceners. They are properly entitled each to a distinct share (u), and of coiu-se there is no jus accrescendi or sur- %avorsliip between them, for each j^art descends severally to their respective heirs, though the imdivided tenancy continues. And as long as the lands continue in a course of descent, and are held promiscuously, so long are the tenants therein, whether male or female, called parceners. 3. Though the interest of coparceners accrue by the same title, yet they may accrue at different periods. [For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other, the siunaving daughter and the heir of the other, or when botlTare dead, their two heirs, are still parceners (x) ; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title.] 4. And lastly, though persons related in equal degree to the an- cestor are entitled in equal shares, yet as their heirs ^^dll represent them, or stand in then- place, there is no necessary equality of interest among parceners. Thus, if a man die lea^ang foiu- grand-daughters, three of them the issue of an elder daughter, and one of a younger, all four shall inherit ; but the daughter of the younger shall take as much as all the other three (y). With respect to an estate in coparcenary, the following rule deserves notice : [that if one of the daughters has had an estate given vA\h. her in frankmarriage by her ancestor — which Ave may remember was a species of estates tail, freely given by a relation for advancement of his kins- woman m marriage {z), — in this case, if lands descend from (/) Litt. s. 254. (!/) Co. Litt. 164 b. («) Co. Litt. 163, 164. {z) Vide sup. p. 251. (j) Ibid. 164, 174. C. VIII. — ESTATES IN SEVERALTY, JOIXT-TEXAXCY, ETC. 353 [the same ancestor to lier aud her sisters in fee simple, she or her heirs shall have no share of them, miless they will agree to di\dde the lands so given in fraukmarriage in equal proportion -with the rest of the lands descending (a). This mode of division was known in the law of the Lombards, Avliich directs the woman so preferred in mar- riage and claiming her share of the inheritance, " m'Utere in confusum cum sororihus, quantum pater aut frater ei dederit, quando amhulaverit ad maritum^\b). With us it is denominated brmging those lands into hotchpot (c) ; which term shall be explained in the very words of Littleton (c?); " It seemeth that this word, hotchpot, is in Enghsh a pud- " ding ; for in a pudding is not commonly put one thing " alone, but one thing ^Aith other things together." By this houseAAofely metaphor our ancestors meant to inform us that the lauds, both those given in frankmarriage and those descending in fee simple, shoidd be mixed and blended together, and then di\aded in equal portions among aU the daughters (e). But this was left to the choice of the donee in frankmamage ; and if she did not choose to put her lands into hotchpot she was presumed to be suffi- ciently pro\'ided for, and the rest of the inlieritance was divided among her sisters. The law of hotchpot took place then only, when the other lands descending from the ancestor were fee simple ; for if tliey descended in tail, the donee in franlonamage was entitled to her share, without bringing her lands so given into liotchpot (/), And the reason is, because lands descending in fee simple are dis- tributed by the pohcy of law, for the maintenance of all the daughters ; and if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more ; but lands descending in tail are not distributed by the operation of the law, but by the (a) Bracton, 1. 2, c. 34; Litt. s. (^0 I-itt- s- 2(57. 266 to 273. (e) Litt. s. 268. (6) L.2, t. 14, c. 15. (/) Ibid. 274. (c) Britton, c. 72. VOL. I. A A 354 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THIXGS REAL. [desijynatlon of the giver, per formam doni; it matters not, therefore, hoAv imequal this distribution mav be. Also no lands but such as are given in frankinaniage, shall be brought into hotchpot ; for no others are looked upon in law as given for the advancement of the woman, or by way of mai-riage portion (. (/f) Gilb. Us. by Sugd. 485; 1 Abinlianis, 4 Q. B. 159. Sand. Us, 70 ; per Doddridge, W. 378 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the estate of the trustee, and that of the cestui que trust, we Avill here endeavoiu* to point out the fundamental prin- ciples ; the subject being much too copious to be fully handled in a general treatise upon the English law. First, vnXh respect to the word "trust" itself: it has varied somewhat, we may perceive, from its antient meaning. It formerly apphed to every case where a use was created, as well as to other confidences ; but where there is a use which the statute is competent to execute, there can no longer be said to exist a trust. The true definition of this term, at the present day, seems to be a confidence reposed by one man in another with respect to property committed to him as the nominal OA\Tier, but not invohong a use which the statute is competent to execute. In practice, however, the term trust, as well as trust estate, is apphed to express the beneficial interest of the cestui que trust, as well as the confidence reposed in his trustee. Besides the distinction between active and passive, trusts are also frequently described as executory, or executed — the former term being apphed to cases where the party, whose benefit is designed, is to take through the medium of a future instrmnent of conveyance which the trustee is di- rected to execute for the purpose ; the latter to cases where no transaction of that kind is contemplated, but the trust estate is completely hmited in the first instance (w). Again trusts (like uses) may be either expressly declared, or they may be implied from circmnstances. Thus, if the legal esfate in land be conveyed to A. upon such trusts as the grantor shall thereafter appoint ; as such ti-usts are, prior to appointment, incapable of taking effect, and as it is clear that A. is not intended to hold the land for his own benefit ; there arises, by necessary implication, until the appoint- ment be made, a trust for the grantor (o). And trusts, when thus raised by imphcation for the benefit of the grantor himself, are called residting trusts. So if an estate~be purchased in the name of one person^andthe (m) 1 Fonbl. Treat. Eq. 441, n.; 90, 118, 139, &c., 9th ed. Bac. Abr. Uses, A.; Bull. Fearne, (o) 1 Cruise, Dig. 477. CILVP. IX. — OF USES AND TRUSTS. 379 consideration-money belong to or be paid by another, tlie land purcliased wiR be subject to a trust for the person to whom the money belonged (p). And an agreement for the sale of land, when once concluded, vnR make the vendor a trastee in equity for the ptu'chaser (g). Though neither the cro-wn nor a corporation aggregate coidd be seised (as we have seen) to a use, the case is othermse with respect to a trust (r) ; and it may be laid down generally, that every description of person capable of holding land, is capable also of bemg a trustee. It is also a maxim in equity, that a tiaist shall never fail on account of "llTe"disabiIity of the person apiDointed to perform it, or even from the omission to appoint any person as ti'ustee. The Court of Chancery will consider the trust, when once substantially constituted, as fixing itself upon the person who, by reason of such disabihty or omission, may become entitled to the legal estate (s) ; and Avill accordingly compel him to its observance. The estate of the trustee is at law (as distinguished from equity) subject to all the mcidents which attend an ordinary ownership of land. It devolves, therefore, when he dies, to his legal representative ; and is hable, while he lives, to ahenation by himself; butthe claim of the representative, and in general also of the ahenee, is subject, in contem- plation of equity, to the original trust (t). With respect to the latter, however, the same riole is established as formerly with respect to uses, that a person who becomes alienee by piu'chase, for valuable consideration, and Math- out iiotice that the trust existed, is not compellable in a court of equity to its observance (w). As his claim is not inferior, in point of natiu'al justice, to that of cestui que trust, equity will not interpose between them ; the conse- quence of which is, that the legal title of the former takes effect for his o^n benefit, while the latter is left to his (/j) 1 Sand. Us. 212, 2nd ed. (0 1 Sand. Us. 227; Gilb. Sugd. iq) Sugd. Vend. 154, 5th ed. 13, n. (5). (r) 1 Sand. Us. 227. («) 1 Sand. Us. 228. (,s) Ibid. 22G. 380 BK. II. OF IIIGIITS OF PROrERTY. — PT. I. THINGS REAL. remedy against the alienor personally, for his breach of trust. On the other hand, where the legal estate stiU remains in the trnstee or his heir, but the purposes of the trust are satisfied, he is always compellable to divest him- selFof it in favour of the person beneficially entitled, by executing a proper conveyance. And it is provided by the "Trustee Act, 1850 "(y), that if he should refuse or neglect to do so when required (x), or if he should be an infant (y), or out of the jiu-isdiction, or cannot be foimd {z), or if it should be uncertain (where there are several trustees) which was the survivor (a) ; or uncertain whether the trustee last kno^Aai to have been seised is lining or dead, or, if dead, imcertain Avho is his heir or devisee (6); or if a person seised of land in trust dies intestate as to such land and without an heir(c), — in all these cases, the Court of Chancery- shall have power either to make an order vesting the estate in such person or persons, in such manner and for such estate, as the coiu-t shall direct ; or may appoint some person to make the conveyance in lieu of the trustee or his heir(c?). Moreover, at law, the estate of the trustee is liable to be taken in execution for his debts (e) ; and his Avife is en- titled to dower (/ ), and the husband of a female trustee to curtesy (^). Upon these points it will be recollected that the position of the feoffee to uses, before the statute of Henry VIII., was the same ; while, on the other hand, cestui que vse remained Avithout protection from the effect of these claims. But herein the modern trust differs re- («) 13 & 14 Vict. c. 60. The c. 55, s. 2, containing like provisions, provisions of this act are extended where lands are subject to a con- and amended in some particulars tingent right in trust; and 13 & H by 15 & 16 Vict. c. 55. Vict. c. 60, ss. 3, 4, in reference to (.r) 15 & 16 Vict. c. 55, s. 2. the case of a lunatic trustee. {y) 13 & 14 Vict. c. 60, ss. 7, 8. (e) 1 Sand. Us. 230, 231 ; 1 P. (2) Sects. 9, 10. Wms. 278. (a) Sect. 13. (/) 2 Ves. sen. 634. As io dower, (h) Sects. 14, 15. vide sup. p. 272. (c) Sect. 15. (g) 7 Vin. Ab. 159. As to rurtesy, (d) Sect. 20. See also 13 iSf 14 vide sup. p. 269. Vict. c. 60, s. 16, and 15 & 16 Vict. CHAP. IX. — OF USES AND TRUSTS. 381 markablj from tlic use ; for equity will now interfere in each of these cases, on behalf of cestui que trust, and give him relief against the party who sets up any title of this description to the legal estate. Formerly, also, the inci- dents of forfeiture and escheat applied (generally speaking) to the estate oT tEe trustee (K). But by the same " Trustee Act, 1850," (ss. 46, 47,) no landT^ock, or chose in action, held, in trust or by Avay of mortgage, shall escheat or be for feited by reason ^ tlie attainder or conviction of a trustee or mortgagee for any offence, — except so far as relates to any beneficial interest of suc h t rustee or mort- gagee therein (i). Such are the points that most deserve attention in regard to the estate of the trustee (j). If we turn now to the other party or cestui que trust, we may remark in the first place, that every person is competent to stand in that ca- pacity, unless labouring under such disability as woidd disqualify him fi-om becoming the tenant of land. As to the"nature of his interest, it is not the subject of protection, or even of notice (generally speaking), in the courts of law, but subsists in equity only (k) ; and there it may be of various kinds or degrees, according to the particular character of the trust created. It is in some instances a mere charge on the land ; the owiiership hemg vested in another person : as where a man by his will debases land to one, and du-ects that it shall be charged with the payment of the legacy to another. In other instances it amounts, in contemplation of^eg^uity, to the actual owner- ship : and this estate or interest is modelled, in general, upon tlie^ rules of the ^ommon law with respect to legal estatesT For in this and in other particulars, the principle {h) 1 Sand. Us. 230. held in trust, are repealed. (f) And see 15 & 16 Vict, c 55, {j) See the collection of legisla- s. 8, authorizing the appointment of tive enactments relating to trustees a new trustee in the place of a con- and executors, post, vol. ii. p. 219; vict trustee. By 13 & H' Vict. c. 60, vol. i v. p. 41. tlie previous provisions contained in {k) See Britten v. Britten, 4 Tyrw. 4 & 5 Will. 4, c. 23, relative to the 473 ; Roe v. Read, 8 T. R. 118. escheat and forfeiture of propeity 6 6 7 382 BK.II. OF EIGHTS OF FROrERTY. — FT. I. THINGS REAL. professed by tlie courts of equity is, that (Bquitas sequitur leyem {k). Thus there may be an equitable estate for Ufc or years, o r in fee or tail ; and in th e latter case, the method ofban-ing tlie entail -wall be the same as if the estiite avovo legal. So an equitable interest may be either in po.-scssion or expectancy, as in tlie^case of a legal estate. Uut wliere it Ts in tEe nature of contingent remainder, it has never been held subject to the common law rule, now abolislied, of being defeated byjthe determination of tlie ])ai-ticular estate before the contingency happens (Z). The doctrine of " merger" also seems to apply to equitable as ^\■^^\\ as legal estates, — providing the coalescing estates Ijc l)()tli of the equitable description, and the merger Avould not be productive of any injustice or inconvenience (m). So the same rules of construction will in general apply t o eq ui- table as to legal estates ; and particularly the important rule in Shelley's case {n). A trust of inheritance is also subject to the curtesy of the husband of cestui que trust, as if it were an estate at law (o) ; and in this respect it is placed on a more satisfactory footing than a use, which was exempt, as Ave have seen, from cru-tesy (p). It followed, indeed, till lately, the natiu'e of a use, in being exempt fi*om dower : a circumstance resulting rather from the cautious adherence to some hasty proceedings, than to any well-grounded principle (5-) ; but by 3 & 4 WilL^I V. c. 105, s. 2, the widow may now in equity claim dowe r ou t of any estate of inheritance in possession (other than in joint-tenancy), to which the husband was entitled benefi- cially, and in which she is not dowable at law ; and this, wTiether tlie estate of the husband was Avholly equitable, {k) 2 Bl. Com. 330. to merger, vide sup. p. 322. {I) 1 Prest. Est. 241 ; Hopkins v. («) Fearne, by Butl. 124, 9th ed.; Hopkins, Cas. temp. Talb. 44 ; 1 Bale v. Coleman, 1 P. Wms. 142. Atk. 590. As to the recent enact- As to the " Rule in Shelley's case," iiient with respect to this rule, vide vide sup. p. 338. sup. p. 339. (o) 1 Sand. Us. 205. As to cur- (m) See 3 Prest. Conv. 558 ; Hop- tesy, vide sup. p. 269. kins V. Hopkins, 1 Atk. 592 ; Phil- ( p) Vide sup. p. 368. lips V. Phillips, 1 P. Wms. 41, As (q) 2 Bl. Com. 337. CHAP. IX. — OF USES AND TRUSTS. 383 or partly legal and partly equitable. Again, a trust estate, though formerly protected like a use from execution for debt, is now (with more regard to justice) made subject to such process. For, by the Statute of Frauds (r), and by the late act of 1 & 2 Vict. 110, (s. 11,) a judgment cre- ditor is entitled to sue out a writ of elegit against the lands and tenements of which any person is seised or pos- sessed in trust for the judgment debtor, as well as those of which such debtor himself is seised or possessed. And so, by the statute last mentioned, (s. 18,) a judgment or rule of the superior courts at Westminster and orders and decrees in equity, (whereby any money, costs, charges or expenses shall be payable to any person,) shall operate as a charge upon all lands, tenements or hereditaments, in which the judgment debtor, or party against whom the rule order or decree is sought to be enforced, has any estate or interest whatever, whether at law or in equity (s). But though, in general, a trust follows the nature of a common law estate, yet on the other hand it may be limited, like a use, in forms that the common laAV will not allow. It is also exempt in its nature from the common law restrictions mth respect to the manner of conveyance ; for it has always been capable of being created or assigned, (eveiTTor an estate of freehold duration,) by deed without livery, or by last AviU and testament. It might originally, indeed, have been established upon mere parol evidence. But now, by the Statute of Frauds (i), aU trusts and con- fidences of lands, except such as arise by impHcation of law, must be manifested and proved by some writing signed by the party, or by his written will(M). And the Act makes the like ceremony essential to the validity of any grant or assignment of this species of interest. A trust is also (r) 29 Car. 2, c. 3, s. 10. sions of the statute of frauds witli (s) As to such judgment being respect to trust estates, see 2 Saund. required to be regji^erec? to bind the by Wms. 11 a, n. (w) ; Harris v. land, vide sup. p. 257, n. (?). Pugh, 4 Bing. 335 ; Harris v. Booker, (0 29 Car. 2, c. 3, s. 9. ibid. 9(i; Scott i;. Scliolcy, 8 East, («) As to tlie effect of the provi- 467. 384 BK. II. OF RIGHTS OF rilOrEIlTY. — PT. I. THINGS REAL. not forfeited b}^ reason of the attainder or conviction of the trustee for any offence (v) ; nor does a trust of inheritance escheat for want of inheritable blood : for the defect of an heir confers no title, in this case, on the lord ; it merely enables the trustee to hold the land discharged of the trust (mj). Nor does such a trust of inheritance escheat to the lord on the attainder of the cestui que trust (x), though it seems forfeitable to the croA\ii on his attainder for treason (y). In these incidents the modem trust, it Avill be observed, follows the principle of the antient use. It may be proper before we conclude, to take some no- tice of the subject of terms held in trust to attend the in- heritance. Upon the purchase of real property it has been common to assign upon a trust of this description, any mortgage term or trust term connected with the title, but of which the pm-poses have been satisfied. Thus, where land held in fee is mortgaged for a long temi of years (as a thousand years), and, upon the estate being sold, the mortgagee is paid off out of the purchase money, — it has been usual for the purchaser (instead of taking a sim^-ender of the term to himself and so mergmg it in the inherit- ance) to keep it on foot and have it assigned to a trustee of his o^\Ti nomination, in trust for himself (the purchaser), *'and to attend and protect the inheritance." The reason of this practice was, that the beneficial or equitable interest in a term assigned upon such a trust, followed (though a mere chattel) all the hmitations of the inheritance — be- longed to the heir or devisee of the new OT\Tier, and not to his executor or administrator — and was subject to the other incidents of a fee simple (r); so that for all pui-ppses of (v) 1 Sand. Us. 206; Hob. 214; Eden, 177; Barclay v. Russell, 3 Attorney-General v. Sands, Hard. Ves. 430. 490; 13 & 14 Vict. c. GO, ss. 46,47. (a-) See 1 Sand. Us. 288. There was formerly an exception as (y) 1 Hale, P. C. 249. to this in the case of treason. (See 33 (s) Best v. Stamford, Free. Ch, Hen. 8, c. 20 ; 1 Sand. Us. 207.) 2a2 ; 2 Freem. 288, S. C. ; Wray v. (w) 2 Bl. Com. 337 ; and see Bur- Williams, 1 P. Wms. 137 ; 1 Sand, gcss V. Wheate, 1 W. Bl. 123; I 229; Cooke i>. Cooke, 2 Atk. 67. CHAP. IX.— OF USES AND TRUSTS. 385 convenience, the case was the same as if it had merged into the inheritance; while on the other hand it afforded the pm'chaser,a secm-ity which he could not have had if a merger had actually taken placQ. For if it afterwards tm-ned out that pi-ior to the piu'chase, but posterior to the creation of the temi, there had been an intermediate ahenation or incum- brance of the fee in favour of another person, to which the then trustee of the outstanding term had been no party, and of which the subsequent purchaser had had no notice when he took his conveyance and paid his purchase money, he would be protected against it, through the medium of the term: for this, being the elder title, would also take the priority in point of legal effect ; and, being assigned ex- pressly in trust for him, became, for all beneficial purposes, his property. No such protection, however, resulted from a satisfied term where the precaution of thus assigning it over was neglected; for though, by construction of equity, the term Avould in that case also become attendant on the inheritance, the effect of this was only to make it attendant for the benefit of the different persons Avho from time to time became entitled to the inheritance ; so that, in the ex- ample above given, the mortgage term, if left outstanding and not assigned, woidd be held in tnist for the first and not for the second purchaser, — the title of the former being- preferable in point of date (a). And by a recent change in the law, the practice of assigning satisfied terms is now altogether at an end. For the protection afforded by that practice being for several reasons precarious, and, even Avhen effectual, being obtained at the expense of an in- nocent party, Avhose title was in point of natural justice at least as good as that of the party protected, it has been vnih great wisdom provided by 8 & 9 Vict. c. 112 (6), — with respect to satisfied terms of years, — that such as should, either by express declaration or by construction of law, on (a) Second Report of Real Pro- (h) As to this provision, see Doe perty Commissioners, p. 8. d. Hall v. Moulsdale, 16 Mec. & W. 689. VOL. I. CO 386 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the 31st December, 1845, be attendant iipon the inheritance or reversion of any lands, should on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof they should be so attendant; with a proviso, however, that every such term of years made so attendant by express declaration (although thereby made to cease and determine,) should afford to ever^^- person the same protection against eveiy incumbrance, charge, estate, right, action, suit, claim and demand, as it would have afforded him if it had continued to subsist, but had not been assigned or dealt \di\\ after 31st December, 1845; and should, for the ptu.'pose of such protection, be considered in every coirrt of law and of equity to be a subsisting term. And with respect to terms of years (then subsisting or thereafter to be created) becoming satisfied after the 31st December, 1845, that such as should, either by express declaration or by construction of law, after that day become attendant upon the inheritance or reversion of any lands should, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon the in- heritance or reversion whereof such term should become so attendant. We have now touched the princijDal points in the law of Uses and Trusts, considered as species of estates ; and for the present may dismiss them fi'om om- view. With respect to uses, mdeed, there is another aspect under which they Ts-iir very soon require to be again examined, viz. in th eir important (but incidental) connection with oiu' system of conveyances. But this is a subject which belongs not to the present chapter. It will find a more proper pl^ce when we are engaged in the consideration of Title, or the manner in which estates may be acquired or lost(c). (t) As to conveyances under the statute of uses, vide post, bk. ii. pt. i. C. XVIII. ( 387 ) CHAPTER X. OF TITLE IN GENERAL. Haying described the tenures hj which lands or corporeal hereditaments may be held, and the kinds of estate that may be had in such as are of free tenure, we are next to consider, in pursuance of the di^sdsion before laid down, the title to them, or manner of acquiring and losing estates therein (a). And it is to be observed, that the learning on this subject applies to equitable as well as to common law estates, but principally to the latter : because, though the rule of descent is the same in both (J), and conveyances of the same kind are commonly used to create or transfer both, yet equitable estates are capable of beingalso created or transferred by simpler methods, and indeed by any in- strument sufficiently indicating the intention of the parties : the only formality to Avliich they are in general subject being that introduced by the provision of the Statute of Frauds, referred to in the last chapter ; which requires that all grants and assignments of any trust or confidence shall be in writing, and under the signatiu'e of the party (c). In proceeding to treat of the manner in which estates may be acquired and lost, it is obvious that we shall not have occasion to detach the consideration of loss from that of acquisition, but that they are reciprocal ideas ; because, [by Avhatever method one man gains an estate, by that same method, or its con-elative, some other man has lost it. As (a) Vide sup. p. 177. (c) Vide sup. p. .'58<1'. (b) Goodright v. Wells, Dong. 771. C (■ 2 388 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [where the heii' acquires by descent, the ancestor has first lost or abandoned his estate by his death; where the lord gains land by escheat, the estate of the tenant is first of all lost by the natiu'al or legal extinction of all his heredi- tary blood; where a man gains an interest by occupancy, the former owner has pre\aously relinquished his right of possession. So in case of forfeiture, the tenant by his own mistaken view or neglect has renounced his interest in the estate ; whereupon it devolves to that person who by law may take advantage of such default. And in alienation by common assiu'ances, the two considerations of loss and acquisition are so interwoven and so constantly contem- plated together, that w^e never hear of a conveyance without at once recei\dng the ideas as well of the grantor as the grantee.] The acquisition, then, of an estate in land is commonly said to be either by descent or purchase (these being the principal methods) ; but, more accurately speaking, it is^ either by act of law or act of the party (e) ; Avhich last is technically called purchase (^perguisitio). Title by act of law expresses all those modes of acqui- sition, Avhere the law itself casts the right to the estate upon (e) This division is, in substance, " escheat or the like" is " not said suggested by Mr. Hargrave, Co. Litt. " to be a purchase," "because the by Harg. 18 b, n. (2). Blackstone, " inheritance is cast upon, or a title (vol. ii. pp. 201, 241,) considers " vested in the lord, by act in law, all title as either by descent or '' and not by his own deed or agree- purchase, and defines purchase (after *' ment." (Co. Litt. 18 b.) The truth Littleton, sect. 12) as "the pos- is, that it is impossible to reduce all " session of lands and tenements titles to the alternative of descent or " which a man hath by his own act or purchase; and as to escheat more " agreement, and not by descent from particularly, it seems clear that it is " any of his ancestors or kindred." neither the one nor the other. We " And according to Blackstone, (lb. may observe here, that in the inhe- " p. 24'4',) purchase com])r\ses es- ritance Act, (3 & 4 Will. 4, c. 106,) cheat ; which, however, it may be ob- the meaning of the word purchaser is served, falls under the negative part settled by a definition contained in only, and not the positive part of the Act itself. But this is only so far Littleton's definition. And accord- as its particular provisions are con- ingly Lord Coke remarks, " that an cerned ; vide post, p. 394. CHAP, X. — OF TITLE IN GENERAL. 389 the acquirer, independently of any act or interference of his own, or of any other person, for that jDiu-pOvSe. Of these_the i^rincipal kind is title by descent; but the term will also properly include title by escheat, and also that of tenant by the curtesy, and of tenant in dower (f). T*urchase, on the other hand, though [in its \ailgar and confined acceptation it is appHed only to such acquisitions of land, as are obtained by way of bargain and sale for money or some other valuable consideration ;] yet it pro- perly includes every laA\'ful (^) mode of coming to an estate by the act of a party, as opposed to the act of law : among which, our attention vn\l chiefly be directed to the title by occupancy, by forfeiture, and by voluntarj^ transfer ; Avhich last Is usually described as that by alienation or conveyance (K). This use of the tevm^purchase, by which it is distin- guished from title by mere act of law, and more particu- larly from descent, coiTcsponds, it may be remarked, with that of conquest (conqucBstus or conguisitio} among the feudists (z), and in the law of Scotland (k). And in like manner, the first pin-chaser (or he who fii'st brought the estate into the family which at present owns it) was styled among the Xorman jurists, the conqueror or conquereur (Z) ; (/) Co. Litt. 18 b. As to escheat, to reserve for discussion in subse- sup. p. 204; as to curtesy, p. 269 ; quent divisions of the work; those as to dower, p. 272. for example which the statute law (g) According to Lord Coke, the has provided for the official or judi- term purchase imports only a lawful cial assignment of a man's property, acquisition, for he says, that " such such as the seizure of lands under " as attain to lands by mere injury an execution by elegit, and the dif- " or wrong, as by disseisin, intru- ferent forms of proceeding by which " sion, abatement, usurpation, &c. the real estate of a bankrupt is " cannot be said to come in by pur- vested in his assignees ; see 1 & 2 " chase, no more than robbery, bur- Will. 4, c. 56, s. 26; 12 & 13 Vict. " glary, piracy, or the like, can justly c. 106; 24 & 25 Vict. c. 134; et " be termed purchase." (Co. Litt. post, bk. ii. pt. ii. c. vi. 18 b.) (i) Craig, 1. 1, t. 10, s. 13. (/«) Other methods of transfer be- C/,-) Dalrymple of Feuds, 10. long to the head oi purchase ; which (/) Gr. Coustum. Gloss, c. 25. it is nevertheless deemed expedient 390 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [whicli seems to be all that was meant by the appellation which Avas given to AVilliam the Xorman, Avhen his manner of ascending the throne of England was in his owti and his successors' charters, and by the historians of the times, entitled congncsstiis, and himself conqucestor or conqidsitor ; signii}-ing that he was the first of his family Avho acquired the croAATi of England, and fi-om whence therefore all future claims by descent must be derived.] Among the different titles that have been enmnerated, we have already been led incidentally to discuss those of tenant by the curtesy and tenant in dower (m). At pre- sent, therefore, we may confine om- attention to descent, escheat, occupancy, forfeiture and alienation; the two first being titles by act of law, the three last titles by pur- chase. (m) As to tenancy by the curtesy, vide sup. p. 269 ; as to dower, vide sup. p. 272. ( 391 ) CHAPTER XL OF TITLE BY DESCENT. We have seen in a former place that an estate of in- heritance in fee simple or fee tail is on the death of the owner, without ha"\ang disposed of it, cast by the law on his heirs, by a title called descent (a). We are now to con- sider more particularly the natm-e of such descent, and the rules by which it is governed (5). The discussion will turn principally, indeed, upon the nature of the descent in fee simple, for that in fee tail is only in the nature of an exception or variation upon the ordinary law of suc- cession ; and when that law is fully imderstood, the ex- planations before given with respect to estates tail in general, will throw sufficient hght on the natm'e of the descent per formam cloni. [The doctrine of descent, or law of inheritance in fee simple, is a point of the highest importance, and is indeed the principal object of the laAvs of real property in Eng- land. All the rules relating to pm'chases, whereby the legal course of descent is broken and altered, perpetually refer to this settled law of inheritance as a datum or first principle imiversally known, and upon which their subse- quent limitations are to work.] In order [to treat a matter of this imiversal consequence more clearly, it y\''\\\ (a) Vide sup. p. 236. " herit land by rer.son of consan- (o) As to descent, see Co. Litt. " guinity; as well where the heirshall 237 a — 250 a; and the Act for im- " be an ancestor or collateral rela- provement of the law of inheritance. " tion, as where he shall be a child (3 & 4 Will. 1-, c. 106.) In this Act " or other issue." " descent" means "the title to in- 392 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [be expedient to lay aside sxicli matters as Avill only tend to breed embarrassment and confusion in an enquirer. We shall therefore decline considenng, at present, who are and who are not capable of being heirs, reserving that for the chapter of escheats (c).] AVe shall also pass over descents by particular custom, as to all the sons in gavelkind and to the youngest in borough-English (d) ; for these cannot conveniently fonn a subject for special consideration in such a treatise as the present. And om- present inquiry will therefore almost exclusively relate to the subject of descent in fee simple as generally estabhshed. It may be right, however, before Ave proceed fiu-ther, to make this preliminaiy remark with respect to the nature of the heir's title, — that [no inheritance can Aest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hares viventis. Be- fore that time, the person who is next in the line of suc- cession is called an heir apparent or heir presumptive. Heirs apparent are such whose right of inheritance is in- defeasible, provided they oiitlive the ancestor: as the eldest son, who must by the com'se of the common law be heir to the father whenever he happens to die. Heirs pre- sumptive are such who, if the ancestor should die imme- diately, woidd in the present circumstances of things be his heirs ; but whose right of inheritance may be defeated by the contingency of some nearer heir being bom : as a brother or nepheAv, whose presumptive succession may be destroyed by the birth of a child ; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the OAATier, to such brother or nephcAV, or daugh- ter ; in the former cases the estate shall be divested and taken away by the birth of a posthumous child, and in the latter, it shall also be totally diveSted by the birth of a posthumous son (e).] (c) Vide post, c. xii. (e) 2 Bl. Com. 208. (rf) Vide sup. pp. 55, 216. CHAP. XI. — OF TITLE BY DESCENT. 393 It may also be material to observe, that the estate claimed by the heii' must necessarily be one that remained inHthe ancestor, or deceased owner, at the time of his death, and of which he has made no testamentary dis- position ; the title of an ahenee in his lifetime, or of a devisee imder his ^\ill, being of course preferable to that of the heir. These things being premised, let us now examine the doctrine of descent itself; or the ndes according to which the heir to an estate ua fee simjjle is to be ascertained, when the succession to it opens or becomes vacant upon the death of the proprietor. This branch of law is foimded for the most part not on statute, but on the custom of the realm ; being in point of antiquity referable to a period at least as early as the reign of Henry the second (jT). At that time, indeed, its de- velopment appears to have been in some degree imperfect ; but it had attained to complete matmity in the reign of Henry the third, or at latest in that of Edward the Gxst^g) ; after wliich, it undenvent no change for the space of more than five hundi-ed years, until at length partially reconstructed in the last reign by the act of 3 & 4 Will. IV. c. T06, passed " for amendment of the laAv of inherit- ance " {h). In proceeding to delineate the present state of this branch of the law, it mil be expedient in the first in- stance to mention that there are a few rare cases of de- scent which will require a particular and separate consi- deration, which consideration they vdW accordingly receive before the chapter closes ; but passing these by for the present, and confining oiu^selves to the ordinary and gene- (/) This appears from the treatise Reeves's Hist. Eng. Law, vol. i. p. of Glanville (written about 1181), 311 ; vol. ii. pp. 246, 317. whose account of the law of inherit- (h) This statute was founded on ance comprises all the principal fea- the first report of the commissioners tures of the existing system. appointed in 1828, to revise the laws (g) Hale's Hist, C. L. c. 11 ; of real property. 394 BK. II. OF RIGHTS OF TROrEIlTY. — PT. I. THINGS REAL. ral view of descent, we may law down with respect to it the follo'SAdng rules or canons (i) : — I. In every case the descent shall be traced from the purchaser. This primary law of descent is laid down in the form here propounded by the act of parhament to which we have just referred (A); and it gives its own definition of the sense in which the expression of the purchaser is here to be understood — a definition not entirely harmonizing with that of the word purchase, as given in the last chapter; for (in substance) the statute defines the jmr- chaser to mean the person who last acquii-ed the land otherwise than by descent {I). (i) The Inheritance Act does not affect the mode of tracing descent in a manor subject to a particular custom of descent ( Muggleton v. Barnett, 2 H. & N. 653). The statute also ap- plies to no descent which took place on a death prior to the 1st of Jan. 1834. For such descents, we must refer to the system of Blackstone, according to which the annexed Table of Descent (No. I.) is ar- ranged, and of which the Rules (or Canons) are as follows : — Rule 1. That inheritances shall lineally descend to the issue of the person who last died actually seised, in infinitum, but shall never lineally ascend. Rule 2. That the male issue shall be admitted before the female. Rule 3. That when there are two or more males in equal degree, the eldest only shall inherit, but the fe- males all together. Rule 4. That the lineal descend- ants i7i infinitum of any perso.i de- ceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done had he been living. Rule 5. That, on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first pur- chaser, subject to the three preced- ing rules. Rule 6. That the collateral heir of the person last seised must be his next collateral kinsman of the whole blood. Rule 7- That in collateral inhe- ritance the male stocks shall be preferred to the female (that 1^=, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near), unless where the lands have in fact descended from a female. (k) 3 & 4 Will. 4, c. 106, s. 2. (0 Sect. 1. The words of the Act are, that the purchaser " shall mean " the person who last acquired the " land otherwise than by descent ; " or than by any escheat, partition, " or enclosure, by the effect of which " the land shall have become part Stephens CunimeniarUs cti Hic Latvs or EiK/laiul TrlJ.Fn<:/>: 3S¥: ////•////// v//e N"l 'JBF' TAB IE ©iF IDlS'CiEi^T. Apf'lximtoa limth occiirnml pHor h' J'' Janunn /KH ///^ ////// /„:„/,.„ Jhnu,l >h, "H„ll,m,,il/, lhrM..i,st,s lavihihtuhm. I H„l . CHAP. XI. OF TITLE BY DESCENT. 395 The effect then of the Riile above laid down is as fol- lows : that if the deceased owner of an estate in fee simple came to it by purchase, that is, in any other manner than by descent, the party claiming it as heir must make him the propositus, or person from whom consanguinity is to be traced ; while on the other hand, if he came to it by descent from some piu'chasing ancestor, that ancestor must be made the propositus. Thus if John Stiles, in the annexed Table of Descent (No. II.), dies the proprietor of an estate, which he is known to have acquired by piu'chase, any person claiming it as heir must prove that he is heir to John Stiles, that is, stands in such relation of consan- guinity to John Stiles as the laws of descent hereafter laid do^Ti make sufficient in the particvilar case ; but if John dies owner of an estate which descended to him fr-om Geoffr'ey his father, by whom it appears to have been originally piu'chased, the claimant must prove that he is heir to Geoffr'ey the father, who becomes in that case the propositus instead of John, the last owner; the conse- quence of which is, that no relation to John ex parte materna can, as such, ever inhent. Agam, if the estate descended to John from Lucy Baker, his mother, who is knoAvn to have been the piu-chaser, the descent must in that case be traced fi'om her, and John's relations ex parte paterna are, on the same principle, necessarily ex- cluded. It often happens, however, especially in long descents, that it is xmcertain by whom an estate was originally pm-chased ; and against this difficulty of proof the act of parliament pro^-ides by the followang rule of evidence, which is to be miderstood as a necessaiy supple- ment to the ride of descent under consideration; Aaz. that the last o^ATier, or (as the Act describes him) " the person last entitled" (wz) to the land(?i), shall be considered to " of or descendible in the same " thereto, whether he did or did " manner as other land acquired by " not obtain the possession, or the " descent." " receipt of the rents and profits (»») In this statute, the expres- " thereof." — 3 & 4 Will. I, c. 106, sion " lasl entitled," shall extend s 1. " to the last person who liad a riglit («) In this si-itme the word "land" 396 BK. II. OF RIGHTS OF FROrERTY. — FT. I. THINGS REAL. have been the purchaser, unless it shall be proved that he inherited it; and that the same rule shall be constantly applied at every step upward of the pedigree (o). There- fore if John Stiles is the person last entitled to an estate, and dies, and it does not appear whether he purchased it or not, the claimant must prove descent from him. So if it appears that he inherited it from his father Geoffrey, but it is unknown whether Geoffrey purchased it or not, the claimant must make himself heir to Geoffrey ; and on the same principle, if it can be shown that Geoffrey took by descent fi-om George, then George must be made the projwsitus. This 1st canon, though newly introduced by the In- heritance Act, is mainly founded on the antient maxim, that none shall claim as heir who is twt of the blood of the purchaser (p) ; a maxim [pecvdiar to our own laws, and those of a similar original; for it Avas entirely unknown among the .Tews, Greeks, and Romans, none of whose laAvs looked any further than the last owner of the estate, but assigned him an heir without considering by what title the estate Avas gained, or fi"om what ancestor derived. But the antient law of Normandy agreed with ours in this respect (q) ; nor indeed is that agreement to be wondered at, since the law of descent in both is of feudal origin, and this rule cannot otherwise be accounted for than by recuning to feudal principle^. "W^ien feuds first began to be hereditary,] that is, subject to succession according to consanguinity, [it was made a necessary qualification of the heir who woidd succeed to a fevid, that he should be hneally descended from the first feudatory or purchaser (r). In consequence Avhereof, if 3 extends to all hereditaments, whether (/;) "And note, it is an old and corporeal or incorporeal, of whatever " true maxim in law, that none shall tenure, and whether the estate is in " inherit any lands as heir, but only possession, reversion or remainder, " the blood of the first purchaser." — &c. (See 3 & 4 Will. 4, c. lOG, s. 1, Co. Litt. 12 a; and see 2 Bl. Com. where the definition is still more 220. copious.) (q) Grand Coustum. c. 25. (o) .1 & 4 Will. 4, c. lOfi, s. 2. (r) 1 Feud. 20. CHAP. XI.— OF TITLE BY DESCENT. 397 [vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his ovm offspring, no not even to his brother, because he was not descended nor derived his blood from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then, in failure of his own descendants, his brother, or such other collateral relation as was descended, or derived his blood, from the fk'st feudatory, might succeed to such inheritance. To this pru-pose speaks the following rule : "frater fratri sine legitimo hcerede defuncto, in benejicio quod eorum patris fuii, succedat ; sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hcerede, frater ejus in feudum non succedit (s)." The true feudal reason for which rule was this, that what was given to a man for his per- sonal service and personal merit, ought not to descend to any but the heirs of his person ; and therefore as now in estates tail, (Avhich a proper feud very much resembled,) so in the feudal donation, " nomen hceredis in prima in- vestitura expressum tantum ad descendentes ex corpore primi vasalli extenditur, et non ad collaterales, nisi ex corpore primi vasalli sive stipitis, descendant {t).''"' The vn\[ of the donor or original lord, when feuds were tiurned from life estates into inheritances, not being to make them abso- lutely hereditaiy, like the allodium (u), but hereditary only sub modo ; not hereditary to the collateral relations or lineal ancestors, or husband or mfe of the feudatory^ ; but to the issue descended from his body only.] Under this system therefore it was necessary that a per- son claiming by descent on the death of the last proprietor, should prove himself not only to be of the blood of, but Hneally descended from, the piu^chaser ; for neither in a feudum novum nor feudum antiquum were the collateral re- lations of the purchaser entitled to succeed. [However, in process of time, when the feudal rigour was in part abated, (s) 1 Feud. sect. 2. (u) As to allodium, vide sup. pp. (t) Craig, 1. 1, tit. I), sect. 36. 178, 190. 398 BK. II. or RIGHTS OF PROPERTY. — PT. T. THINGS REAL. [a method was invented to let in the collateral relations, in failure of the descendants of the grantee, to the inheritance, by granting him a feudum novum to hold ut feudum an- tiquum ; that is, with all the qualities annexed to a feud derived fi'om his ancestors ;] and then (though the lineal ancestors themselves were always excluded, for reasons wliich mil hereafter appear,) yet the collateral relations of the pm'chaser, — that is, the descendants of those ancestors, — were admitted to succeed, even in infinitum, because they might have derived their blood from the first imaginary purchaser. [For since it was not ascertained in such ge- neral grants whether this feud should be held ut feudum ■paternum, or feudum avitum, but merely that it should be held ut feudum antiquum, as a feud of indefinite antiquity, — that is, since it was not ascertained from which of the ances- tors of the] real pm-chaser [this feud shoidd be supposed to have descended, — the law Avoidd not ascertain it either, but would suppose any of his ancestors pro re nata to have been the first purchaser. And therefore it admitted any of his collateral kindred (who had the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.] Of this nature, it is said, have been all the grants of fee simple estates in this kingdom {x). They were no other than grants of Vi feudum novum, to be held ut antiquum, or feud of indefinite antiquity ; while, on the other hand, a gift in tail (where none but the lineal descendants of the first donee are admitted) proceeded on the principle of a feudum stride novum. But while the old feudal requisite of a lineal descent from the real pm^haser Avas thus substantially set aside, it continued nevertheless to be necessary that the claimant should be of his blood ; for no person, without being related to him either lineally or collaterally, could be sup- posed to be lineally descended from the imaginary pur- chaser. And as it was necessary that the claimant should (x) See Wright's Tenures, 180 ; 2 Bl. Com. 222. CHAP. XI. — OF TITLE BY DESCENT. 399 be of his blood, so it was from him, as a root, that the descent was in some cases to be traced. For if the estate which descencTed was of a kind in which the o"wner cannot acquire actual seisin of the land, (as is the case with -sr ^^i^ C-^ I ^ V-^ reversion or remainder expectant upon fi-eehold, for there^ '<^' i ^ 1 the actual seisin belongs to the particular tenant,) the rulc*^ ' ^ •^j'f.^ wasThat the claimant must trace his descent from (or, as " ,'^ . ^, ;> _' it was usually expressed, make himself heir to,) the pur-/> i •' <— ^ uL / chaser^y). Supposing the estate descended, however, to ^ ^^ have been of a kind in M^hicli the o^vAiier can acquire actual*^ sefsin, as in the case of an estate in possession, or a ^^ l^i,,^/^^ i'^^^^i^ version or remamder expectant on a tenii of years (2:), the A^^^ Z~ rule was different ; for here another antient maxim inter- *-^-4?^*^^*-<-**-^ vened, and required that the claimant should make himself /^ig^^^t/^ hevTib ike person last actually seised of the inheritance {a) ; every person who obtamed an actual seisin, whether he were an original piu'chaser, or derived his title by descent, being considered as a new root, from which all future claimants were to spring (6) : a principle that was briefly expressed by the adage seisina facit stipitem (c). Thus if (y) Ratcliffe's case, 3 Rep. 42 a ; Co. Liu. 15 b, 191 b ; Burton's Compend. 112; Doe v. Hutton, 3 Bos. & Pul. 649, 656 ; Roe d. Thorne V. Lord, 2 Bl. Rep. 1099. (s) As to an estate in possession, and one in reversion, vide sup. pp. 318, 319,321. (a) " A man that claimeth as heir " in fee simple to any man by de- " scent must make himself heir to " him that was last seised of the " actual freehold and inheritance. " — Co. Litt. 11 b; and see Ratcliffe's case, 3 Rep. 41 b, 42 a. (i) Hale's Hist. C. L. c. 11. (c) Blackstone's explanation of this principle is, that the law re- quired notoriety of possession as evidence that the anci stor had th.;t property in himself which was to be transmitted to his heir ; " which " notoriety," says he, " had suc- " ceeded in tlie place of the antient " feudal investiture, whereby, while " feuds were precarious, the vassal on " the descent of lands was formerly " admitted in the lord's court, as is " still the practice in Scotland, and " there received his seisin in the " nature of a renewal of his ances- " tor's grant, in the presence of the " feudal peers ; till at length, when " the right of succession became " iiidefeasible, an entry on any part '' of the lands within the county " (which, if disputed, was to be after- " wards tried by those peers), or " other notorious possession, was ad- '' niitted as equivalent to the formal 400 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. Geoffi'ey Styles, the father, died seised of land of which he was the piu'chaser, and which descended to John as his heir, and John died before entiy, the next claimant was to make himself heir to Geoffrey ; but if John entered and obtained actual seisin, it would then be necessary to claim as heir not to Geofirey, but to John. And the difference was material ; because the heir to the person last seised and the heir to the piu'chaser were not necessarily the same person. If John, for example, died lea\'ing a half brother, his father's son, the latter might possibly, on Jolin's decease, be next heir to Geoffi'ey the father ; but it was impossible, as the law then stood, that he should be heir to John,f descent not then being allowed between those related by the hah* blood (c?).. The rule of which we speak did not make it the less necessary, indeed, that the claimant shovdd be of the hlood of the purchaser ; for this, in every case of descent, was universally required : but if lie had that qualification, and coidd make himself heir to the person last seised, he Avas entitled to succeed, Avhether he covdd make himself heir to the purchaser or not (e) ; while, on the other hand, his being heir to the purchaser was not suificlent, unless he was also heir to the person last seised. Thus if John Stiles had piu'chased land and died, leaving no other kindred than his father's brother and his o^\xi. brother of the half blood (his father's son), the uncle Avould have been his heii", as the brother (by the ride abeady noticed) coidd not have claimed in that character ; and if the uncle had also obtained seism and died, "oithout other kindred than John's half brother, the latter Avould then have been entitled to succeed, for he would have been heir to the person last seised, and of the blood of the purchaser, though not the heir of the pur- chaser {f). On the other hand, if John Stiles had inherited land purchased by Geoffi'ey, and died seised without other " grant of seisin, and made the te- (rf) Co. Litt. 15 b. " nantcapableof transmitting his es- (e) Hale's Hist. C. L. c. 11. " tateby descent."— 2 Bl. Com. 209. (/) H. Chit. Desc. 115. CHAP. XI. — OF TITLE BY DESCENT. 401 kindred than liis half brother (Ms father's sou), the latter coidd not have inherited, because unable to make him- self heir to John ; and yet he would have been heir to Geofii'ey. It is to be observed, however, that in many cases to trace descent fi'om the person last seised, amounted in effect to the same thing as tracing descent from the pmchaser. For where the last owoier (or person on whose death the suc- cession became vacant) happened to have been in fact the piu'chaser of tlie estate, he woidd also be the person last actually seised. Thus if it were an estate in possession ac- quired by feoflSnent, this implied (as elsewhere shown) a real delivery to him of the actual seisin (^) : and supposing it to have been acquired by debase (mider the statute of wills), or by a conveyance under the statute of uses (of the natiu'e of which we shall speak hereafter), the case would be in effect the same; for the actual seisin (so far at least as would suffice to make him the root of descent) woidd here be transfen*ed to him without entiy, by con- struction of law (A). So if it were a reversion or re- mainder in fee expectant on an estate for years, he would be clothed vdth an actual seisin of the fee (iqDon a prin- ciple before explained), through the medium of the pos- session of his particidar tenant (i). In all such cases, therefore, if the claimant made himself heir to the pvu- chaser, he would also make himself heir to the person {g) Vide sup. p. 236. satisfy the terms of the rule, seisina {h) Per Holt, 1 Show. 74; B.. v. facit stipitem. It is true, that Lord Sutton, 3 A. & E. 611 ; and see Coke appears to consider the seisin Watk. Desc. c. 1, s. 6. The ex- acquiredunder a devise or the statute pression used by the learned author of uses as a seisin in law (Co. Litt. of that treatise is, that "such a pro- 111 a, 266 b); but he probably perty" is thereby "vested or fixed" means by this, an actual sei.sin by in the purchaser, as to make the construction of law. It is clearly land descendible to his heirs. But not such a seisin in law as that of as regards estates in possession, it the heir, which requires to be com- seems more correct not to depart pleted by entry, and is no actual from the expression actual seisin, as seisin, nothing short of this will suffice to (/) Vide sup. p. 328. VOL. I. D D 402 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. last actually seised ; and as lie would thereby moreover prove his consangumity to the purchaser, he would satisfy- both the conditions required to make out a descent in fee simple. These explanations will suffice not only to explain the natiu'e of the new rule now laid doA\Ti by the Inheritance Act, but to~prove also its convenience and propriety. It discards in effect the maxim of seisina facitjtipitem ; and estabhshes in a general sense the rule, wliich formerly ob- tained only in certain instances, that descent shall be traced from the piu'chaser. In point of simplicity and uniformity of system, the advantage is consequently obvious ; while, on the other hand, nothing is sacrificed which it could be useflil to retain. In very nvunerous instances, the descent (as we have seen) was in effect al- ready traced fr'om the purchaser ; and though it was other- Avise in cases where the last owner had become entitled by descent to an estate of a kind in which actual possession can be acquired, no sufficient reason could at the present day be sho^vn (whatever may formerly have existed) in- favoiu' of such a distinction. Indeed the naaxim oi seisina facit stipitem was attended with material inconvenience ; for it was sometimes difficidt to determine what woidd amount to a seisin sufficient to constitute a stipes ; and highly unsatisfactory besides, that the right to the succes- sion should in any case depend on so unimportant a cir- cumstance, as the omission of the owner to make entry, before his death, on the land he had acquired by inherit- ance (A). "'Before we dismiss the Rule imder consideration, it must be remarked that though the " piu'chaser" is defined in the Act as the person who last acquired the land otherwise than by (A-) See First Real Prop. Rep. p. testate, leaving a son to whom the 15. As to the operation of Canon whole of his mother's moiety was I., in a case in which a man pur- held to pass, see Cooper v. France, chased land in fee simple, and died 14 Jur. 214; and Lord St. Leo- leaving two daughters, and after- nards on Real Property Statutes, p. wards one of the daughters died in- 282. CHAP. XI. — OF TITLE BY DESCENT. 403 descent, yet to apply the definition properly in cases of a certain description, it is necessary to take some other parts of the statute into account. Thus it may be doubtful, in the absence of a positive iiile, whether under given circum- stances a man acquires by descent or not, so as to bring the case within tlie definition ; as where a man devises land in fee to his heir or to the person by name, who, at his decease, becomes his heir. In this case, if the devise was made in such form that the devisee would take an estate in fee, of precisely the same quality that he woidd otherwise have taken by descent, it was settled at the com- monTlaw that the descent would take effect and not the debase ; for the law gave the preference to the descent as the elder title (/). The contrary ride, however, which is manifestly more consonant Avith reason and convenience, is now established by the legislature, it being provided by the Inheritance Act (sect. 3), " that Avhen any land shall " have been devised by any testator who shall die after " 31st December, 1833, to the heir (w), or to the person " wEo^iall be the heir of such testator, such heir shaU be " considered to have acquired the same as a de^dsee, and " not by descent." So it may be doubtfid, in the absence of a positive ride, what amounts to the last acquisition of an estate, so as to bring the case mthin the meaning of the definition ; as where land is limited by any assurance to the person or to the heirs of the person who shall have thereby conveyed the land ; for it was settled at the common law that he acquired nothing by such assurance, but was entitled as of his former estate (n). It is proA'ided how- (0 2 Bl. Com. 242 ; 2 Sand, by did not take by descent. Wms. 7, n. (4); 1 Roll. Abr. 626 ; {m) The efiect of a devise to the Doe d. Timins, 1 Barn. & Aid. 530. testator's " heirs" (in the plural) This is the reason assigned in the was before the statute similar to that books. It seems probable, however, of a devise to his "heir." Whether that the rule had a feudal object, and it is so now, or not, may be ques- that it was intended for the protec- tionable. tion of the lord, who would lose the («) See Co. Litt. 22 (b). fruits of his seigniory where the heir D I) 2 404 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. ever, by the same Act aud the same section of it, " that " when any land shall have been limited by any assurance " executed after the 31st of December, 1833, to the person *' or to the heirs of the person who shall thereby have con- " veyed the same land, such person shall be considered to " have acquired the same as a purchaser by \artue of such " assurance, and shall not be considered to be entitled " thereto as his former estate or part thereof." II. A second general Rule or canon is, that inheritances shall in the first place lineally descend to the issue of the purchaser, in infinitum. The principle of placing the lineal descendants first in succession to their ancestor is, imder all systems of descent, invariably adopted, and may be said to be of universal obligation or propriety ; for even if it be held that the laws by Avhich property is transmitted from one man to another, are in e^eiy case of an arbitrary nature, and juris positivi only (a doctrine which there is great difficulty in admitting as regards the succession of relatives), yet at least, in the choice of rules, it may happen that there are some much more consonant than others to the common feelings of man- kind and the natm^al sense of propriety ; and such principles as these seem universally to suggest, that [whenever a right of property transmissible to representatives is ad- mitted, the possessions of the parents should go, upon their decease, in the first place to their offspring, as those to whom they have given being, and for whom they are there- fore bound to pro\dde.] III. We may lay it do-svn as a third Rule, that the chil- dren of the pm-chaser are prefeiTcd to their own issue ; and, among such cluldren, males to females, and an elder male to a younger ; but females (where there are several) take together. This involves three pi'inciples : first, that the descent is to the children rather than their descendants ; secondly. CILVP. XI. — OF TITLE BY DESCENT. 405 tliat the male chikli'en are admitted before the female ; thirdly, that among the male, primogenitiu-e is the nde, though not among the female. 1. The children (as being nearer in blood to the pur- chaser) are of course prefeiTed to their ovm descendants ; that is, if any child of the purchaser, H\dng at his decease, has issue also K^dng at the same period, the estate will descend to the child (who is more nearly related to the purchaser), and not to the grandchild or other descendants, who are more remote. 2. But, secondly, among the children of the purchaser, males take before females, [or (as our male law-givers have somewhat imcomplaisantly expressed it) the worthiest of blood shall be preferred (o).] Thus if John Stiles hath two daughters, Margaret and Charlotte, and afterwards two sons, Matthew and Gilbert, and dies : first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters. [This preference of males to females is entirely agreeable to the law" of^ succession among the Jews(p), and also among the states of Greece, or at least among the Athe- nians (q) ; but was totally unknown to the laws of Rome (r) (sucITof them, at least, as are now extant), wherein brethren and sisters are allowed to succeed to equal portions of the inheritance. Without entering into the compai'ative merit of the Roman and the other constitutions in this particular, or examining into the greater dignity of blood in the male or female sex, it is sufficient to observe that our present preference of males to females seems to have arisen entirely from the feudal law. For though our British ancestors (the Welsh) appear to have given a preference to males (5), yet our Danish predecessors who succeeded them seem to have made no distinction of sexes, but to have admitted (0) Hale's Hist. Com. Law, c. 11. (r) Inst. iii. 1. 6. (;;) Numbers, chap, xxvii. (s) Stat. Wall. 12 Edw. 1. (g) Petit, LL. Attic. lib. C, tit. G. 406 BK. II. OF RIGHTS OF ntOrEUTY. — PT. I. THINGS REAL. [all the cliildi-en at once to the inheritance (t). But the feudal law of the Saxons on the contment, (which was ]irol)al)ly brouglit over hither and first altered by the law of King- Canute,) gives an evident preference of the male to the female sex. " Pater aut mater defuncti, filio non " filia hareditatem relinquent. Qui de functus non filios sed " fillas reliquerit, ad eas omnis hcBveditas 2^ertineat{u).''' It is possible, therefore, that this preference might be a branch of that imperfect system of feuds which obtained here be- fore the Conquest ; especially as it subsists among the cus- toms of gavelldnd, and as, in the charter or laws of King Henry the first, it is not (like many Norman innovations) given up, but rather enforced (v). The true reason of pre- ferring the males must be deduced from feudal principles ; for by the genuine and original policy of that constitution no female coidd ever succeed to a proper feud (w), inas- much as they were incapable of performing those military services for the sake of which that system was established. But oiu' law does not extend to the total exclusion of the females, as the Salic laAv and others, where feuds were most strictly retained. It only postpones them to males ; for though daughters are excluded by sons, yet they suc- ceed Avhere there is no son : our law, like that of the Saxon feudists before mentioned, thus steering a middle com'se betAveen the actual rejection of females, and the putting them on a footing with males.] 3. Primogeniture is estabhshed among the male children of the purchaser, but not among the female. [As if a man hath two sons, Matthew and Gilbert, and tAvo daughters, Margaret and Charlotte, and dies; Matthew, his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and both the daughters : but if both the sons die without issue before the father, the (/) Wilkins, Leges Angio-Sax. (v) Leg. Hen. 1, c. 70. I>L. Canut. c. 68. (w) 1 Feud. 8. (n) Tit. 7, s. 1 and 4. CHAP. XI. — OF TITLE BY DESCENT. 407 [daughters Margaret and Charlotte shall both inherit the estate as coparceners (x). This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance (y) ; in tlae same manner as Avith us, by the laws of King Henry the first, the eldest son had the capital fee or principal feud of his father's possessions, and no other pre-eminence (^); and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary (a). The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally ; some among all the children at large, some among the males only. This is certainly the most obvious and natural way, and has the appearance (at least in the opinion of younger brothers) of the greatest impartiality and justice. But Avhen the emperors began to create honorary feuds or titles of nobility, it was found necessary, in order to preserve their dignity, to make them impartible (b), or, as they styled them, feuda individua, and in consequence descendible to the eldest son alone. This example was further enforced by the inconveniences that attended the splitting of estates : namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life ; instead of being serviceable to themselves and the public, by engaging in mercantile, in mihtary, in ci\dl, or in ecclesiastical emplo}Tnents (c). These reasons occasioned an almost total change in the method of feudal inheritances abroad, so that the eldest male began universally to succeed to the whole of the lands, in all military' tenures ; and in this condition the feudal (x) Lift. s. 5 ; Hale's Hist. C. L. (z) Leg. Hen. 1, c. 70. c. 11. As to coparceners, vide sup. (a) Glanv. 1. 7, c. 3. p. 351. (b) 2 Feud. 55. (y) SelJen de Succ. Ebr. c. 5. (c) Hale's Hist. C. L. c. 11. 408 BK. II. OF RIGHTS OF TROrERTY. — PT. I. THINGS REAL. [constitution was establislicd in England, by William the Conqueror. Yet we find that socage estates fi-equently descended to all the sons equally, so lately as when Glan- \alle wrote, in the reign of Henry the second {d) ; and it is mentioned in the Mirroiu' (e), as a part of our antient con- stitution, that knight's fees should descend to the eldest son, and socage fees should be partible among the male childi'en. HoAvever, in Henry the third's time we find by Bracton (/), that socage lands, in imitation of lands in cliivalry, had almost entirely fallen into the right of suc- cession by primogeniture, as the law now stands ; except in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons(^), — and, except in some parti- cidar manors and townships, where their local customs continued the descent, sometimes to the youngest son only, or in other more singidar methods of succession. As to the females, they are still left as they were by the antient laAV, for they were all equally incapable of perform- ing any personal service ; and therefore one main reason of preferring the eldest ceasing, such preference woidd have been injurious to the rest ; and the other principal purpose (the prevention of the too minute subdivision of estates) was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown (A); wherein the necessity of a sole and determinate succession, is as great in the one sex as the other. And the right of sole succession, though not of primogenitiu^e, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, lea\dng only daughters, the eldest shall not of com-se be coimtess, but the dignity is in {d) Glanv. 1. 7, c. 3. {g) Somner, Gavelkind, 7. (e) Mirrour, c. i. s. 3, Qi) Co. Litt. 165 a. (/) Bract, lib. 2, c. 30, 31. CH.VP. XI. — OF TITLE BY DESCENT. 409 [suspense or abeyance till the king shall declare his plea- sureTlfoFEejTieing the fountain of honour, may confer it on which of them he pleases (i) : in which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogenitm-e even among the males was established ; viz. that the lord might bestow them on which of the sons he thought proper; " progressum est ut ad jilios deveniret, in quern scilicet dominus vellet heneficium con- Jirmare (A)."] The last ride supposed all the children of the purchaser to be Hving at his decease; but in the case of the death of any of them, then — IV. A foiulh Eide is, that the issue of the children of the purchaser represent or take the place of their parents in infinitum ; the childi'en of the same parent being always subject (among each other) to the same law of inheritance as contained in the third Ride. [Thus the child, grandchild, or gTeat-grandchild, either male or female, of the eldest son, succeeds before the younger son, and so in infinitum (Z) ; and these represen- tatives shall take neither more nor less, but just so much as their principals woidd have done. As if there be two sisters, Margaret and Charlotte, and Margaret dies, leaving six daughters ; and then John Stiles, the father of the two sisters, dies without other issue: these six daughters shall take among them exactly the same as their mother Mar- garet woidd have done had she been h^dng, — that is, a moiety of the land of John Stiles, in coparcenary ; so that upon partition made, if the land be divided into twelve parts, thereof Charlotte, the siun'iving sister, shall have six, and her six nieces, the daughters of Margaret, one a-piece. This taking by representation is called succession pi^f stirpes, according to the roots; since all the branches inherit (f) Co. Liu. 1G5 a. (0 Hale's Hist, C. L, c. II. (/f) 1 Feud.l. 410 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [the same share that theii- root, whom they represent, would have Honer And in this manner also^was the Jewish suc- cession directed (mj.] In our law, indeed, it [is a neces- sary consequence of the double preference given, fii-st, to the male issue, and next to the first-born among the males. For if all the children of tlu'ee sisters were, in England, to claim per capita, in their o\\ti right, as next of kin to the ancestor, AAithout any respect to the stocks from w^hence they sprung, — and those children were partly male and partly female, — then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent vn\h. itself, and depart fi'om the preference Avhich, by the first ride, it gives to the males and the first-bom, in the descent to issue. Whereas by dividmg the inhei-itance according to the roots or stii-pes, the ride of descent is kept imifonn and steady ; the issue of the eldest son excludes all other pretenders, as the son himself, if living, woidd have done ; but the issue of two daughters di^ade the inheritance between them, pro^dded their mothers, if li\-ing, Avoidd have done the same: and among these several issues or representatives of the respective roots the same preference to males and the same right of primogeniture obtain, as woidd have ob- tained at the first among the roots themselves— the sons or daughters of tlie deceased. As if a man hath two sons, A. and B., and A. dies, leaving two sons, and then the grandfather dies : now the eldest son of A. shall succeed to the whole of his gTandfather's estate; and if A. had Jeft only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B. and his issue. But if a man hath only three daughters, C, D., and E., and C. dies, leaAang two sons, D. lea^dng two daughters, and E. lea^dng a daughter and a son Avho is younger than his sister ; here, when the grandfather dies, the eldest son of C. shall succeed to one-third, in exclusion (m) Selilen de Slice. Ebr. c. 1. CII.VP. XI. — OF TITLE BY DESCENT. 4 1 1 [of the younger; the tAvo daughters of D. to another thh'd, in partnership; and the son of E. to the remaining third, in exchision of his elder sister. And the same right of representation, guided and restrained bj the same rules of descent, prevails downwards in infinitum. Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Glan- ■voUe AATote: and therefore, in the title to the crown espe- cially, we find frequent contests between the younger (but sm'A-i^-ing) brother and his nephew (bemg the son and representative of the elder deceased), in regard to the in- heritance of their common ancestor; for the uncle is certainly nearer of kin to the common stock, by one degree than the nephew, though the nephew, by repre- senting his father, has in him the right of primogenitiu'e. The uncle also was usually better able to perform the services of the fief, and besides had fi-equently superior interest and strength to back his pretensions and crush the right of his nephew. And even in times comparatively modem, we find that proximity of blood took place of re- presentative primogeniture, in the lower Saxony ; that is, the yoimger siu-\-iving brother was admitted to the inherit- ance before the son of an elder deceased, — wliich occa- sioned the disputes between the two houses of Mecklen- burg-ScliAverin and Strelitz, in 1692 (w). Yet Glan^alle with us, even in the twelfth centuiy, seems (o) to declare for the right of the nephew by representation ; provided the eldest son had not received a pro\asion in lands fi"om his father, or (as the ci\il law Avoidd call it) had not been forisfamiliated in his lifetime. King John, however, who kept his nephew Arthur from the tlu'one, by disputmg the right of representation, did all in his power to abohsh it throughout the realm (p) ; but in the time of his son. King Heniy the third, we find the rule indisj^utably settled in (n) Mod. Un. Hist. xlii. 334. {p) Hale's Hist. C. L. c. 11. (o) Glanv. 1. 7, c 3. 412 BK. II. OF RIGHTS OF PHOrEUTY. — VT. I, THINGS REAL. [the manner we have here laid it down ( ,.n:,„,i„„,/ i„i//„. //V/>/// .^_ //// n l.nlblnii . I'lin/, , A rlh.ll,Ti/,IJ,:i(yx /„ln- j;,/,/i../irrsJ/'" CPIAP. XI. — OF TITLE BY DESCEXT. 429 " shall be a total Jailure of heirs of the purchaser, or where " a ny land shall be descendible as if an ancestor had been " the piu'chaser the reof (y), and_there shall^ be^^total " failure of the heirs of such ancestor, then and in eveiy " sucK c ase the land shall desc end, andjbhg_de scent shall " thenceforth be traced from if Ae person last entitled to the " land, as if he had been the purchaser thereof ''\q). Havmg now brought our account of the present law of descent to a close, we may remark, as the result of the in- vestigation, that, upon the death of the owner^of an estate in fee simple, we are to ascertain the heu", by considering, first, who was the purchaser or quasi piu'chaser of that estate, — meanin g by the tenii quasi piu;chaser, the person from whom descent is to be traced as if he had been the purchaser, as in the two cases just noticed: — and we are then to look for the heu-, first, among his issue, — Avhere the heir \n\l be his descendant next to him in blood, but_ sub- ject to the prmcij)les which obtain as to sex, prmiogeniture, and" representation : and, failing his issue, among hi s lineal ancestors, or theirTssue — where the heir ^\'ill_be his hneal ancestor next in blood in the preferable line, or the issue of such ancestor, if deceased ; appljdng the same law of succession as in the case of the purchaser's issue, and also the principle_wliic h prefers the Avhole to the „ half- blood. Before we conclude this branch of our inquiries, how- ever, it may not be amiss to apply the rules more particu- lai'ly, and to supply the reader with a short sketch of the manner in which we must search for the heir of a person, — as John Stiles (r), who dies entitled to land, of which he was the purchaser or quasi purchaser. In the first place succeeds the eldest son, Matthew Stiles, or liis issue, Xo. 1. If he and his heirs be extinct, then Gilbert Stiles, and the other sons respectively in order (p) As in the case just mentioned, will appear in the next chapter ; vide Slip. p. 428. post, p. 4.39. (7) The ohject of this p:ovision (r) See Table of Descent (No. II.) E E 7 430 BK. II. OF RIGHTS OF PKOPEIlTy. — PT. I. THINGS PvEAL. of birth, and tlieir issue, No. 2. In default of these, all the daughters together, INIargaret and Charlotte Stiles, or their issue, No. 3. On failure of the descendants of John Stiles, his father Geoffrey (being his nearest lineal ancestor in the preferable line) is admitted. No. 4. Then the issue of his father, viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue. No. 5 ; then Oliver Stiles and the other whole brothers respectively, in order of birth, or their issue. No. 6 ; then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue. No. 7 ; then the son of Geoffrey (the paternal brother of the half- blood). No. 8, or his issue ; and the paternal sisters of the half-blood. No. 9, or their issue. In default of them, George Stiles, the paternal grandfather, is admitted. No. 10, and then his issue, a^z. first, his issue of the whole blood -vvith John, No. 11, then his issue of the half-blood wdth John, No. 12. In defaidt of these, Walter Stiles, the paternal grandfather's father, is admitted. No. 13. Then the issue of Walter, viz. first, his issue of the whole blood with John, No. 14, then his issue of the half-blood. No. 15. In default of these, Richard Stiles, the paternal grand- father's paternal grandfather, is admitted. No. 16, or his issue. No. 17, and so on, in the paternal line of Walter Stiles, in infinitum. In failm^e of this (this is, supposing the decease of Richard, and of all his maternal and pa- ternal ancestors, and the failure of their issue both of the whole and of the half-blood,) Ave are next to resort to the maternal line of Walter Stiles, rather than of a nearer male ancestor; and the paternal grandfather's paternal grand- mother, Ann Godfrey (according to the maiden name), No. 18, will consequently be the person next entitled to succeed, and so on in the maternal line of Walter Stiles, in infinitum. In failure of which we are to resort to maternal fine of George StUes ; and the paternal grand- father's mother. Christian Smith, No. 1 9, will be the person next entitled, and then her issue of the half-blood to John, No. 20. Then the paternal grandfather's maternal gi-and- fkther, William Smith, No. 21 ; and then his issue, No. 22; CHAP. XI. — OF TITLE BY DESCENT. 431 and so on in the paternal line of Christian Smith, iri infinitum. On failure of which, we are to resort to her maternal line ; and the paternal grandfather's maternal grandmother, Jane King, No. 23, •will be the person next entitled, and so on in the maternal line of Christian Smith, in infinitum. On failiu'e of which we are to resort to the maternal Kne of GeoflBcej Stiles ; and the paternal grand- mother, Ceciha Kempe, No. 24, will be the person next entitled ; and then her issue of the half-blood to John, No. 25. Then the paternal gi-andniother's father, Lul^e Kempe, No. 26 ; then his issue of the whole blood to John, No. 27. Then his issue of the half-blood to John, No. 28. Then the paternal grandmother's paternal grand- father, Thomas Kempe, No. 29. Then his issue. No. 30, and so on in the paternal line of Luke Kempe, in infinitum. In failure of which we are to resort to his maternal hne ; and the paternal gTandmother's paternal grandmother, Sarah Browne, No. 31, Avill be the person next entitled ; and so on in the maternal hne of Luke Kempe, in infinitum. On failiu'e of which we are to resort to the maternal hne of Ceciha Kempe ; and the paternal grandmother's mother, Frances Holland, No. 32, will be the j^erson next entitled. Then her issue of the half-blood to John, No. 33. Then the paternal grandmother's maternal grandfather, Charles Holland, No. 34 ; then his issue. No. 35 ; and so on in the paternal line of Frances Holland, in infinitum. In failui'e of which we are to resort to the maternal hne of Frances Holland ; and the paternal gi'andmother's maternal grand- mother, Mary Wilson, No. 36, will be the person next entitled ; and so on in the maternal line of Frances Hol- land, in infinitum. In failure of which, the jjatenial blood of John Stiles enth-ely failing, recourse must then, and not before, be had to his maternal relations, or the blood of the Bakers, Nos. 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 ; the Bates's, No. 48; the Wilhs's, Nos. 49, 50, 51, 52; the Carters, No. 53 ; the Thoq^es, Nos. 54, 55, 56, 57, 58, 59, 60 ; the Bishops, No. 61 ; the Whites, Nos. 62, 63, 64, 65 ; 432 BK, II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. and the Wards, No. 6G, in the same regular successive order as in the paternal line. We have thus seen how land is acquired by descent in fee simple. But before we conclude the chapter, it wiU be proper to notice some miscellaneous points of law con- nected with this title. 1. We may remark, that in order to make the title com- plete, where the estate descended is one in 2:)ossession, the heir is required to make entri/ on the land ; for until then he is said to have seisin in Jaw only, and not in de^'d ; and is incompetent to bring any action ol' nojia-s I'ur injm-ies committed to the land (q). If the estate be one in expec- tancy, he has of coiu'se no right of entry imtil the particular interest detemiines : but if it be a reversion oj^remainder immediately expectant on an estate for years, the posses- sion of the particular tenant operates, upon a principle before explained, a^ that of the heir ; whose seisiu_is in that case considered as a seisin in deed, and not in law only(r). The distinction, however, between these lands of seisin, as regards the heir, has recently lost much of its importance — which cliiefly resisted fromjthis considera- tion, ^dz. that until entiy he coidd not become the root of a futm'e descent : for this is a capacity which can no longer in any case attach to him, as, by the new provision of the Inhentance Act, the pm-chaser is now the only root fi-qm which descent can be traced. 2. It may be useful to explain the phrase which some- tunes occiu-s in the books of hreaking the descent. It is to be observed, then, that the estate Avhich a man has acquired by descent, retains in his hands its fonner quahty of descending only to the blood of the same pm-chaser, or quasi pm-chaser, so that, on decease of the owner,_none of his relations on the mother's side can ever be entitled to succeed, supposing the estate to have descended to him in {q) Bac.Ab. Trespass(C.); Frown- (r) Co. Litt. 15 a; Doe v. Keen, ing V. Beston, Plowd. U2 ; Good- 7 T. R. 390 ; Doe v. Whiclielo, 8 T. title f. Newman, 3 Wils. 516. R. 213 ; et vide sup. p. 321. CHAP. XI. — OF TITLE BY DESCENT. 433 tlie paternal line, nor vice versa any relation on the father's side, if it came in the maternal hne ; except only in the case of a relation who, being heir in one of these lines, happens to belong to the other also, — a case which may occur when the owner's parents have be^n connected by consangumity. In this respect the title by descent differs remarkably from that by pm-chase ; for by the latter [the estate acquires a new inheritable quahty, and is descendible to the owner's blood in general,] that is, first to those of the paternal, and then to those of the maternal line. And from this it follows, that if a person who has acquired an estate by descent conveys it to a ncAV piu'chaser, the line of descent is broken : and even if that purchaser conveys it back again to him, the interruption still continues ; for the former oi.ATier will then hold it as by piu'chase, and not as by descent, and "\\dll therefore be able to transmit it to his heirs on either side. Thus, if a man seised of lands asTieiFon the part of his mother (and which consequently no relation on the father's side can, as such, inherit), conveys them to another, and afterwards obtains a recon- veyance of them, to hold to him and his heirs, and then dies without issue, his lieii's on the part of his father shall inherit, and in preference to those on the mother's side(s). But a mere alteration in the quality or circumstances of an estate will not break the descent ; and therefore if par- ceners make partition of their land, they are still in of their respective shares by inheritance, though those shares are no longer held in coparcenary, but in severalty. 3. The heir is liable, out of an estate taken by descent in fee simple, to be charged Avith the debts of the ancestor from whom it descended (i). This liability has always attached to him in the com-ts of the common law, in respect (s) Co. Litt. 12 b ; Doe v. Mor- December, 1833), although an estate \ gan, 7 T. R. 105; I Prest. Est. 420, should be limited to himself hy the 45 8, 459. And in like manner the same conveyance. (Seethe Inherit- . 7 descent will now be broken where a ance Act, 3 & 4 Will. 4, c, 106, s. 3.) ijiperson who took by descent makes {t) See Bushby v. Dixon, 3 Barn. ^ conveyance (subsequent to 3** & Cress. 298. VOL. I. V V •PI 434 BK. II. OF RIGHTS OF PUOrEliTY. — PT. I. THINGS REAL. of the ancestor's special obligations, (or, in legal language, those accruing by specialty) ; Avhich consist of two kinds, either matters of record (such as judgments and the like {u), recorded in the com-ts of justice), or deeds, (that is, con- tracts vmder seal) : bvxt Avith a distinction as to the latter, between deeds in which the ancestor has ^ound himself and his heirs eo nomine, and those in which the heirs are not bound ; for to these last the liability of the heir in the com'ts of the common laAv does not extend, though there is a remedy, as we shall presently see, in equity. Nor is he liable, whatever the kind of obligation may be, to be charged as of his own proper debt ; but only so far as he has taken, in his character oriieir, an estate of Tils ances- tor sufficient (to some extent at least) to satisfy the debt ; which sufficient estate is called, in law, assets, fi-om the French v!Oxdi.assez,\e\\o\\^\{x). The assets which descend to an heir, however, may consist either of legal or equita- ble estate ; and though equitable interests are not in general noticed in the common laAv com-ts, yet in this case it is otherwise ; for by the Statute of Frauds (29 Car. II. c. 3), s. 10, if any cestui que trust shall die, leaving a trust in fee simjDle to descend to his heir, the trust shall be assets by descent, and the heir liable to be charged with the same, in the same manner as if it were an estate at common law. But though the heir was always subject to this liability for the specialty debts of his ancestor (to the extent at least of the legal estate inherited), it did not formerly extend to a devisee, or person taking the estate of the deceased by devise under his mil ; and therefore to pro- tect creditors fi-om such devises as may tend to their pre- judice, it was provided, by statute 3 & 4 William and Marj^, c. 14, called the Statute of Fraudulent De\dses, — repealed, but with a re-enactment of this provision, by 11 Geo. IV. (m) See Harbert's case, 3 Rep. law on the subject of the heir's lia- 12 b. bility is fully stated, 2 Sauiid. by (a-) 2 Bl. Com. 243, 244. The Wms. 7, n. (4). CIIAP. XI. — OF TITLE BY DESCENT. 435 & 1 Will. ly. c. 47 (y), — that where a deceased person shall have devised any real estate, without making it sub- jeet to the pa^inent of his debts , hi^levisee shall beTTable tojje charged m respect of the real estate so devised, in the^same manner as, and jointly Avith, the heir : and a creditor bringing an action at law for that purpose, sliall be entitled either to make the de\dsee a joint defendant vnth the heir, or to sue t he devi see alon e , where there is no heir hable. Still, hoAvever, the law afforded no remedy against the real estate of a deceased person (whether in the hands of an heir or devisee), to that large and important class of creditors who claim upon simple contract (or contract "wdthout specialty), nor to those claiming under deeds in which the heirs are not expressly bound. There have been fe^v defects perhaps in the English jui-isprudence more calculated to excite surprise than this, or more at variance with the natural sense of justice. And it is satisfactory, therefore, to be able to add that it exists no longer ; for, though it has not been thought convenient to alter the principle of the common law in this jDarticular, the claims of creditors of every class are now effectually securedHthrough the meditmi of proceedings in equity. Yet th e redre ss came late, and by a slow and cautious advance. For at fii'st it was confined to the case where the deceased was a person carrjong on trade within the meaning of the banknipt laws ; it being pro\dded by 47 Geo. III. sess. 2, c. 74, and afterwards by 11 Geo. IV. & 1 Will. lY. c. 47, that, in a case of that description, the creditors by simple contract should be entitled by a suit in equity, in such manner as therein mentioned, to enforce payment out of the real estate descending on his heir, or devised by his will, — and not made subject to the payment of his debts. (y) As to these statutes, see Far- Will. 4, c. 47, has been explained ley V. Briant, 3 Ad. & El. 839 ; and and amended, as to certain of its Hunting v. Sheldrake, 9 Mee. & W. provisions, by 2 & 3 Vict. c. 60, and 256. The statute 11 Geo. 4 & I 11 & 12Vict.c. 87- F F 2 436 BK. II. OF RIGHTS OF PROrERTY. — PT. I. THINGS REAL. But now, by 3 & 4 Will. IV. c. 104, it is enacted more extensively — that when any person shall die seised of or entitled to any real estate, which he shall not hj his will hav e tnade subj e ct to the pavment of his debts , such estate shall be considered as assets, to be administer e d in courts of equity , for payment of his debts as well on simple contract as on specialty. To secure, however, a just priority to those who, in his lifetime, may have had the precaution to place their claims upon a basis of stronger obligation, it is further provided, that, in the adminis- tration of assets by courts of eqmty under that statute, all creditors by specialty in which the heirs are bound, shall "be paid the full amount of their debts before any payment is made either to creditors by simple contract, or to those claiming on specialties in which the heirs are not boun d (z). (z) It may however be observed, sum of money, and shall have de- that if the debtor by his will have vised the estate so charged to any charged his real estate with the pay- trustee or trustees for the whole of ment of his debts, his creditors of his estate and interest therein, and whatever kind will, on the general shall not have made any express principle observed by the Court of provision for the raising of such Chancery, that " equality is equity," debts, legacy or sum of money out participate in the produce equally. of such estate; and also for the case (Bailey v. Ekins, 7 Ves. 319.) See where the testator, who has created 22 & 23 Vict. c. 35, ss. 14 — 18, for such a charge, shall not have devised provisions to meet the case where a the hereditaments charged in such testator shall have charged his real terms as that his whole estate and estate, or any specific portion there- interest therein shall become vested of, with the payment of his debts, in any trustee or trustees. or of any legacy or other specific ( 437 ) CHAPTER XII. OF TITLE BY ESCHEAT. [Escheat, we may remember, was one of the fi-uits and consequences of feudal tenure (a). The word itself is origin- ally French or Norman (b), in which language it signifies chance or accident;] but with us it is apphed to the case where the o^vner of an estate in fee simple dies A\dthout having disposed of it, and leaves no heir behind him to take it by descent ; so that it results l)aclc, [by a kind of reversion, to the original grantor or lord of the fee (c).] And here it is to be observed, that the [land so escheating afterwards follows the seigniory, as being a fruit thereof. Therefore, if the lord was entitled to the seigniory by piu'chase, the land escheated will descend to his heirs general ; if by descent, it will be inheritable only by such of his heirs as are capable of inheriting the seigniory (c?),] In order to complete this title by escheat, [it is necessary that the lord perform an^ct of his own, by entering on the lands and tenements so escheated (e) ; on faihu^e of which, or by doing any act that amoimts to an impHed waiver of his right, as by accepting rent of a stranger who usurps the possession, his^ title by escheat is baiTcd (f). It is (a) Vide sup. pp. 183, 204, 214. the course is to issue a commission of {b) Eschet or £chet, formed from eic//ea< (see Doe i;. Redfern, 12 East, the verb eschoir or Schoir, lo happen. 96). Upon an escheat for felony or (c) 11 Feud. 86 ; Co. Litt. 13 a. treason, the lord cannot enter until (d) Co. Litt. 13 a. it appears that the king has had his (e) Formerly he might either enter year, day and waste. Hawk. b. 2, or sue out a ivrit of escheat, but this, c. 49, s. 9. with other real actions, is now abo- (/) Bro. Ab. tit. Acceptance, 25 ; lished. Where tlie crown is entitled, Co. Litt. 2G8. 438 BK. II. OF RIGHTS OF TKOrERTY. — I'T. I. THINGS REAL. [tliorcfore in some respect a title acquired by his oa^ti act, as Avell as by act of law. Indeed, this may also be said of descents themselves, in which an entry or other seisin is required, in order to make a complete title ;] but both descent and escheat vest an inchoate title at least in the party, -without the active interference of any person what- ever : and they are both properly referable, therefore, to the same head, of title by " act of law" {g). And though Blackstone has enumerated escheat as one of the modes of purchase, yet, as he himself obsen^es, [the lord is more frequently considered as being ultimus hceres, and therefore taking by descent in a kind of caducary succession (A).] The law of escheat is founded upon this single principle, that the inheritance of land held in fee simple ha\ang failed, it [must become what the feudal Avriters denominate feudum apertum, and must result back again to the lord of the fee, by whom (or by those Avhose estate he hath) it was given. Escheats are frequently divided into_ those jprog^er c?e- fectum sanguinis, and those propter delictum tenentis ; the one sort, if the tenant dies without heirs, the other if his blood be attainted (i)] ; and we propose successively to ad- vert to both sorts, beginning with — I. Escheats propter defectum sanguinis. By the law, as it veij lately stood, an escheat of this sort always took place. First, where the owner in fee simple of land, of Avhich he had been himself the pui-chaser {k), died without dis- posmg of the same ,, and leaving none relat e d 1 > \ c > 1 1 ^ a 1 1- gumity to himself, or none who was not subject to some disabihty such as prevented hisjjecomino; heir to any per- soi]^ whatever. Secondly, where the OAATier in fee simple of land which he had derived by descent fi'om some person as purchaser, or which was descendible as if one of the owner's ancestors (g) Vide sup. p. 388. (i) Co. Litt. 13 a, 92 b. (A) 2 Bl. Com. 245 ; ace. Co. Litt (A) As to this word, vide sup. pp. 18 b. 389, 394. ^ CHAP. XII. — OP TITLE BY ESCHEAT. 439 had been the purchaser (Z), died Avlthout disposing of the same, and leaving none related by consanguinity to such purchaser or ancestor, or none who Avas^ot subject to such disability a s just mentioned. But it has latterly been considered as a hardship that, in the second case, the land should thus go over by escheat to a stranger, if the last owner died leaving a person re- lated by consanguinity to himself, and not under such dis- ability as before mentioned — a possible event— because he may have left a person falling mider that description, though not a relation on the side of him from whom the land had descended, or was descendible (m). C It has n ow therefore been^royided by 22 & 23_yict. c. 35, s._19 (as stated in the last chapter), that where there shall be a total failure of heirs of the purchaser, or where any land shall be "descendible as if an jmcestor had been the pm-chaser thereof, and there shall be a total failure of the heirs of such a ncestor, the n, and in^very such case, the land shall descend, and the descent shall thenceforth be traced from the person last entitled to the land, as_if he had been the purchaser thereof (??)• The law having been thus altered, an escheat now takes place only in the foUoAA-ing cases,— First, where the person last^eiititled to land in fee simple dies Avithout having dis- posed of the same, and leaAang none related by cons^n- guinity either to the person (if any) fi-om Avhom as pur- chaser, (or as quasi purchaser,) he derived by descent, — or to "ITimsen: Secondly, w'here he dies Avithout having dis- posed of the land, and leaA^ing none so related aa^Iio is not at the same time subject tosiich personal disability as before mentioned. The first of these cases requires no further remark. As to the second, it is to be understood that CA'eiy person is under such ,di sabih ty Avho is a monster ^ a bastard, or an alien. (/) As to this case, vide sup. p. p 547. 428. (n) This provision is, by sect. 20, (m) As in Doe d. Blackburn v. incorporated with the ''Inheritance Blackburn, 1 Moody & Uobinson, Act," as to wliicli vide sup. p. 3!>3, V I 4 440 RK. II. OF IMGIITS OF PROPERTY,— PT. I. THINGS REAL. 1. [A monster, Avhich hath not the shape of mankhid, biiUnany part evidently ^sirs the resemblance of the brute creation, ha_th no inheritable blood, and cannot be heir to aiiyland, albeit it be brought forth in marriage ; but, al- though it hath deformity in any part of its body-, yet if it hath hmnan shape, it may__be heir (o). This is a very aiitient lade in the law of England (p), and its reason is too obvious and too shockmg to bear a minute discussion. The Roman law agrees -with our own i n excl uding such births from successions (ry) ; j^et accoimts them, hov^^ever, children in some respects, Avhere the parents, or at least the f;ithcr, could reap any advantage thercl)y (?■), (as tlie jus tr'mm Uherorum, and the like) ; esteeming them the misfortime, rather than the fault of that parent. But our law will not admit a birth of this kind to be such an issue as shall entitle the husband to be tenant by the curtsey {s) ; b ecause it is not capable of inheriting. And therefore if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.] 2. [Bastards are incapable of being heirs.] Bastards, by om- laAv, are such children as are not bom of lawful wedlock (^), [Such are held to be nuUius filii, the sons of nobody ; for the maxim of the law is, " Qui ex damnato coitu rmscuntur, inter liheros non computantur (m)." Being thus the sons ofliobody, they have nq_blood in them, at (o) Co. Litt. 7 b, (?) Ft". 50, 16, 135; Paul. 5, sent. (p) " Qui contra formam humani 9, s. 63. generis converse more procreantur, iit (a) Co. Litt. 29 b. As to curtesy, si vmlier vionstrosum vel prodigiosiim vide S'.ip. p. 269. enijca sit, inter liberos non computentur. (t) " Bastards by our law are such Partus tamen, cui natura aliquantu- " children as are not born either in lum addiderit vel diminuerit, ul si sex " lawful wedlock or within a coin- vel tantum quatuor digitos habuerit, " patent time after its determina- bene debet inter liberos connumerari : '' tion." — 2 Bl. Com. 247. See fur- et, si membra sintinutilia aut tortuosa, ther as to bastardy, post, bk. iii. non tamen est partus monstrostis." — c. in. Bract. 1. 1, c. 6, s. 7, and 1. 5, tr. 5, (it) Co. Litt. 8 a; Bract. 1. 1, c. 6, c. 30, s. 10. s. 7. (q) Ff, 1, 5, 14, CHAP. XII. — OF TITLE BY ESCHEAT. 441 [least no inheritable blood ; consequently none of the blood of the first purchaser ; an^ therefore, if there be no other claimant than such illegitimate childi-en, the land shall es- cheat to the lord (x). The civil law differs from oiu'S in this point, and allows a bastard to succeed to an inherit- ance, if after its birth the mother was man-ied to the father (y) : and also if the father had no la"\;\rful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inheritance (z) ; and a bastard was likewise capable of succeeding to the whole of his mother's estate, although she was never married; the mother being sufficiently certain, though the father is not (a). But our law, in favour of marriage, is much less indulgent to bastards. There is indeed one instance in which our law has shown them some little regard ; and that is usually termed the case of bastard eigne and mulier puisne. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who in the lan- guage of the law is called a mulier, or, as Glanvil (Z>), ex- presses it in his X/atin, filius mulieratus ; the woman before marriage being concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eigne ; and the yoilnger son is legitimate, or mulier puisne. If then the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue ; in this case the mulier puisne and all other heirs (though minors, married women, or under any incapacity whatsoever) are totally barred of their right (c). And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastards life, (a:) Finch, Law, 117. (c) Litt. s. 399. The rule also ap- (?/) Nov. 89, c. 8. plies if a man has two daughters, the («) Ibid. c. 112. elder a bastard, and tliey both enter (a) Cod. 6, 57, 5. peaceably as co-parceners ; Co. Litt. {b) L. 7, c. 1. 244 a, 442 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [and e\acting him. 2. Because the canon law (following the civil) did allow such bastard eigne to be legitimate, on the. subsequent mamage of his mother : and therefore the laws of England (though they wovdd not admit either the civil or canon law to rule the inheritances of this kingdom, yet) paid such a regard to a person thus pecidiarly (jircum- stanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shown to no other kind of bastard ; for if the mother was never married to the father, such bastard coidd have no colour- able title at all (d). As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral Idndred ; and conse- quently can have no legal heirs, but such as claim by a lineal descent from himself. And therefore if a bastard pm'chases land, and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee (e).] But though the descent from a bastard is necessarily con- fined to his issue, yet he is capable of holding land in fee simple, in such sense at least that he may make an un- limited alienation of it, and that his alienee will take an estate tojiis heirs general (/). 3. [Aliens also are incapable of talcing by descent (g), or (rf) Litt. s. 400 ; Blackstone (vol. other case in which the temporal ii. p. 248) here gives as an additional courts allow the maxim, that a man reason for the rule as to bastard shall not be bastardized after his eigne, that " the law will not suffer death ; see Co. Litt. by Butler, " a man to be bastardized after his 244 b, n. (1). "death, who entered as heir, and (e) Bract. 1. 2, c. 7 ; Co. Litt. » died seised, and so passed for 244. " legitimate in his lifetime." And (/) 1 Prest. Est. 468. the same reason is given in Cr>. Litt. {g) As to the subject of aliens 2t4a. But the correctness of this generally, vide sup. p. 138, et post, view is questionable ; for there is no bk. iv. pt. i. c. ii. CHAP. XII. — OF TITLE BY ESCHEAT. 443 [inheriting (A) ; for they are not allowed to have any inhe- ritable Jblood in them ; rather indeed upon a principle of national or civil policy, than npon reasons strictly feudal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore, if a man leaves no other relations but aliens, his land shall escheat to the lord. As aliens cannot inherit, so far they are on a level with bastards ; but as they are also disabled to hold] real estate [by purchase (i), they are under still greater disabilities. And, as tliey can neither hold by purchase, nor by inherit- ance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heu* to inherit ; but so it is expressly holden (A), because they have not in them any inheritable blood.] Therefore, if an alien be made a British subject, or deni- zen (as he is in that case more properly called), by letters patent from the cro^vn, [and then pm-chases lands, (which theTaw allows such a one to do,) his son, bom before his denization, shall not (according to the rule of the common law) inherit those lands ; Ijut a son bom afterwards may, even though his elder brother be living ; for the father, before denization, had no inheritable blood to commimicate to his eldest son ; but by denization it acquires an here- ditary quality, which wall be transmitted to his subsequent posterity. Yet, if he had been naturalized by act of parlia- ment (Z), such eldest son might then have inherited : for {h) Co. Litt. 8 a. By a late enact- whose father or grandfather on the nient,(7& 8 Vict. c. 66, s. 3), a person father's side were natural-born suh- born out of her majesty's dominions, jects. Vide post, bk. iv. pt. i. c. ii. of a mother being a natural born sub- (i) Co. Litt. 2 b. See the last ject, may now inherit land, or take it note, by devise or purchase. This statute, (A-) Ibid.; 1 Lev. 59. however, does not make him in (I) An alien may now also be na- other respects a natural born sub- turalized for most purposes by the ject; though j)revious statutes have certificate of a secretary of state (7 admitted to that condition a person & 8 Vict. c. C)6, s. 6) ; vide post, bk. born out of tlie queen's dominions, iv. pt. i. c. ii. 444 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THIXCS REAL. [nnturalization cancels all defects, and Is allowed to have a retrospective energy, which simple denization has not(m).~\ At common law, too, aliens could not be the channels of descent, for [Sir Edward C6kc(n) holds, that if an alien cometh into England, and there hath issue tAvo sons, who are thereby natural born subjects, and one of them pur- chases land, and dies ; yet neither of these brethren can be heir to the other. For the commune vinculum, or com- mon stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other.] And though this opinion of his was after- wards oveiTuled (o), it was only on the ground that the descent from one brother to the other might be considered as immediate, Rnd A^dthout regard to the comtnime vinculum: an exception from the general law of inheritance, \^'hich we have before shown to have formerly obtained (j?) ; but which has been lately abohshed by the Inhei'itance Act 3 &_4jW;in. lY. c. 106. --- — - - ^ The subject, hoAvever, of tracing descent through an alien, has been regulated since the time of Lord Coke by act of parliament. For [it is enacted by the statute 11 & 12 Will. 3, c. 6, that all persons, being natm-al-born subjects of the king, may inherit and make their titles by descent from any of their ancestors (lineal or collateral), although their father or mother, or other ancestor, by, fi'om, through, or under whom they derive their pedigrees, were born out of the king's allegiance. But inconveniences were after- wards apprehended, in case persons should thereby gain a ftitiu'e capacity to inherit, who did not exist at the death of the person last seised. As if Francis, the elder brother of John Stiles, be an alien, and OKver the younger be a natural-bom subject, upon John's death, without issue, his (m) Co. Litt. 129 a. 415 ; 1 Lev. 59 ; 1 Sid. 193. (n) Ibid. 8 a. {p) Sup. p. 421. (o) Collingwood v. Pace, 1 Vent. CHAP. XII. — OF TITLE BY ESCHEAT. 445 [lands Avill descend to Oliver the yonnger brother ; now, if afterwards Francis has a child bom in England, it was feared that, under the statute of King WiUiam, this new- born child might defeat the estate of his uncle OHver. Wherefore it is provided, by the statute 25 Geo. II. c. 39, that no right of inheritance shaU accrue by;^ virtue of the former statute to any persons whatsoever, unless they are in being, and capable to take as heirs at the death of the person last seised ; with an exception however as to the case, where lands shall descend to the daughter of an alien (cj) : which descent shaU be divested jn favour of an after-l)()rii brother; or the inheritance shall be divided with an after-bom sister or sisters ; according to the usual mle of "descents by the common law(r).] Such is the state of the law with respect to escheats propter defectum sanguinis ; as to which we shall only fiu*- ther observe, that by a recent Act (s), another case, besides that which we have ah-eady noticed, is withdrawn from the operation of escheat, — viz., where the land was held by the party deceased, under a trust or mortgage, — it being provided by this (as in substance by former statutes) for the protection of the party beneficially interested, that where a trustee or mortgagee dies intestate without an heir (or his heir or devisee is not known), the Com^t of Chan- cery shall have power to make an order vesting the lands in such person and in such manner as the com-t shall direcf(i^). II. We now arrive at the consideration of escheats /^JT^^..^.^ propter d£Uctum teneiitis ; those, namely, where by attainder, j."^ ^ '^^J • the blood of the person attainted is so corrupted as to be— i rendered no longer inheritable. {q) See Co. Litt. by Harg. 8 a, 11 Geo. 4 & 1 Will. 4, c. 60; 4 & 5 (n.); Christian's Blackst. 374, n. Will. 4, c. 23 ; and 1 & 2 Vict. c. (r) Vide sup. p. 392. 69, by which provisions of the same (s) 13 & 14 Vict. c. 60 (amended kind were made, by 15 & 16 Vict. c. 55). This statute {t) 13 & 14 Vict. c. 60, ss. 14, 15. (the " Trustee Act, 1850") repeals ibility of l)cing heir; and thereforethe yoimgei' brotlier would not inherit, but the land would escEeat to the lord : though, had the elder died without issue in the life of the father, the younger son l)orn after the pard on might well have i nherited, for he had no cor- (h) Co. Lift. 391 b. (i) Co. Litt. 392 a. VOL. I. G G 450 BK. II. OF EIGHTS OF PROrEKTY. — PT. I. THINGS REAL. [iiiption of blood {It). So, if a man had issue two sons, and the elder in the hfetime oif the father had issue, and then M'as attainted and execute d, and after wards the father died, the lands of the father Avoidd not descend to the younger son ; for the issue of the elder, which had once a possibility to uiherit, would impede the descent to the yoimger, and the land would escheat to the lord(Z).^ [Upon the whole it appears, that a person attainted was neither allowed to retain his former estate, nor to inherit any future one ; nor to transmit any inheritance to his issue, either immediately from himself, or mediately through him- self fr'om any remoter ancestor : for his inheritable blood, which is necessary either to hold, to take, or to transmit any feudal property, was blotted out, coiTupted, and extin- guished for ever ; the consequence of which is, that estates thus impeded in their descent, resulted back and escheated to the lord.] But the doctrine of con-uption of blood, arising as it did fi'om feudal principles, and perhaps extending fmlher than even those principles woidd warrant, was in modem times always looked upon as a peculiar hardship, at least as re- garded the family of the offender. [And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the eighth, it was declared that they should not extend to any corruption of blood (m).] And now at leng-th by the statutes 54 Geo. III. c. 145, 3 & 4 Will. IV. c. 106, and 13 & 14 VictTc. 60 (w), the same spirit haslDeen infused (subject to some wholesome excep- tions) into the general law of the realm ; and whatever savoured of inhumanity or harshness under the antient sys- (k) Co. Litt. 8 a. other than the offender himself; but (/) Dyer, 48 a. this provision was repealed by 39 (m) By 7Anne, c. 21 (the opera- Geo. 3, c. 93. tion of which was postponed by 17 (n) The last-mentioned statute Geo. 2, c. 39,) it was enacted, that repeals 4 & 5 Will. 4, c. 23, which after the death of the Pretender and contained provisions of the same his sons, no attainder for treason kind, should operate to the prejudice of CHAP. XII. — OF TITLE BY ESCHEAT. 451 tern effectually removed. For by the Act of Geo. III. it is jDi-ovidedthat no attainder for felony7 except for treason or murder, " shall extend to the disinheriting of any person, " no r to the pr ejudice o? the right or title of any person or " persons other than the right or title of the offender, during " his natural life only ; and that it shall be lawiid to every " person to whom the right or mterest of any lands, tene- " ments, or hereditaments, after the death of such offender, " should or might have appertained if no such attainder " had Ix'cii, to enter into the same"(o). By the Inheritance Act, '' that when the person, fi-om whom the descent of " any land is to be traced, shall have had any relation, " who having been attainted shall have died before such " descent shall have taken place ; then such attainder " shall not prevent any person from inheriting such land " who would have been capable of inheriting the same by " tracing his descent througlTsuch relation, if he had not " been atfainted, unless such land shall have escheated " in consequence of such attainder before 1st January, " 1834"(jw). ' And by the Trustee Act, 1850, that "no " lands, stock, or chose in action, vested in any person " upon any trust, or by way of mortgage, or any profits " thereof, shaU escheat or be forfeited to her majesty, her " heirs or successors, or to any corporation, lord or lady " of the manor, or other person, by reason of the attainder " or conviction, for any offence of such trustee or mort- " gagee ; but shall remain in such trustee or mortgagee, " or su rvive to his or her co-trustee, or descend or vest in " his or her representative, as if no such attainder or con— " viction had taken place (§')." This provision, however, has no a])])li(ati(jn to any beneficial interest which the trustee or mort gagee m ay have in the property so vested (o) 54 Geo. 3, c. 145. empowered to appoint a fresh trus- (p) 3& 4 Will. 4, c. 106, s. 10. tee in place of one wlio lias been {q) 13 & 14 Vict c. 60, ss. 46, 47 ; convicted of felony. (15 & 16 Vict. and see 18 & 19 Vict. c. 91, s. 10. c. ^5, s. 8.) The Court of Chancery is, however, a a 2 452 BK. II. or RIGHTS OF PROPERTY. — PT. I. THINGS REAL. in liim, such interest being made recoverable in the same manner as if the Act had not been passed. In conchision of the chapter we may remark, that even where an escheat has actually taken place, its consequences are now frequently remitted, Avhere the crown is the party entitled io take the benefit. For by modern acts of par- liament, in all cases where a title has accrued to the crown by escheat for Avant of heirs, or by reason of any for- feiture, the sovereign is empowered, (notwithstanding the statute (r) which has restrained the alienation of the royal demesnes in general to leases for thiiiy-one years,) to make grants to any person or persons, for the pui-pose of restoring the land to the family of the former owner ; or carrying into effect any grant, conveyance, or devise of it, that he may have intended to make (s). (r) I Anne, stat. 1, c. 7, s. 5. See s. 12 ; 47 Geo. 3, sess. 2, c. 24 ; 59 48 Geo. 3, c. 73, s. 3. Geo. 3, c. 94 ; 6 Geo. 4, c. 17. (s) See 39 & 40 Geo. 3, c. 88, ( 453 ) CHAPTER XIII. OF TITLE BY OCCUPANCY. [Occupancy is tlie taking possession of those things which before belonged to nobody. This, as we have seen (a), is the true ground and foundation of all property; or of holding those things in sevei'alty, which by the law of nature, un- quahfied by that of society, were common to aU manldnd. But when once it was agreed that everything capable of OAvaership shoidd have an o-s\Tier, natural reason sug- gested, that he who coidd first declare his intention of appropriating anything to his own use, and in conse- quence of such mtention actually took it into possession, shoidd thereby gain the absolute property of it ; according to that ride of the law of nations, recognized by the laws of Rome (&), quod nullius est, id ratione naturali occupanti conceditur. This right of occupancy, so far as it concerns real pro- perty (for of personal chattels we do not in this place speak), hath been confined by the laws of England within a very naiTow compass, and was extended only to a single instance; namely, where a man was tenant pur autre vie, or had an estate granted to himself only (^^^tllOut men- tioning his heirs) for the life of another man, and died] ■wdthout alienation, [during the life of cestui que vie, oy him by whose life it was holden : in this case, he that could first enter on^tlie land mi^ht lawfully retain the pos- (a) Vide sup. p. 156. (6) Ff. 41, 1. 3. 454 BK.II. OF EIGHTS OF rROPERTY.— PT. I. THINGS REAL. [session so long as cestui que vie lived, by right of occu- pancy (c). This seems to have been recumng to first principles, and calling in the law of nature to ascertain the property of the land, Avhen left Avithout a legal OTATier. For it did not revert to the grantor, though it formerly Avas supposed so to do {d) ; for he had parted A\ith all his interest so long as cestui que vie lived : it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particiJar estate carved out of it, much less of so minute a remnant as this ; it did not belong to the grantee, for he Avas dead ; it did not descend to his heirs, for there were no words of inheritance in the grant ; nor could it vest in his executors, for no executors could succeed to a fi-ee- hold. Belonging therefore to nobody, Hke the hcereditas Jacens of the Romans, the law left it open to be seized and appropriated by the first person that could enter upon it during the life of cestui que vie, under the name of an occu- pant.] But if [the estate pur autre vie had been granted to a man and fiifJieirs during the life of cestui que tJzV,] and the grantee died Avithout alienation^ and Avhile the life for which he held continued, there could not be a title by com- mon occupancy, but the heir would succeed, and Avas called a special occupant (e). And so the law continues to this day, in the absence of any alienation during the life of the grantee or any dcAase by him, (for snch an estate as we shall presently see is noAv dcAisable) ; — the heir succeeding, according to the doctrine most commonly receiA^ed, in (c) Co. Litt. 41 b. As to title by " assigns," and the right in which occupancy, see Geary v. Bearcroft, tlie executor, &c. in that case takes, Carter, 59; Vaughan, 187. see Westfaling v. Westfaling, 3 Atk. {d) Bract. 1. 2, c. 9 ; 1. 4, tr. .3, c. 460 ; Williams i;. Jekyl, 2 Ves. sen. 9, s. 4; Flet. I. 3, c. 12, s. 6 ; 1. 5, c. 6S3 ; Ripley v. Waterworth, 7 Ves. 5, s. 1 5. 425 ; Fitzroy -j. Howard, 3 Russ. 230. (e) As to the case where an estate As to the grant of such estate to a pur autre vie is granted to a man and man " and his heirs," see Carpenter, " his executors, administrators, and i\ Dunsmure, 3 Ell. & Bl. 918. CHAl'. XIII. — OF TITLE BY OCCUrANCY. 455 virtue of a special exclusive right (by the terms of the original grant) to enter upon and occupy the land during the residue of the estate granted; for as there is no estate of inheritance, he cannot, properly speaking, take by descent. But by other authorities, the heir (though termed a special occupant) does in reality take by descent ; and his estate, though not a fee, is a descendible fi-eehold(./). An estate pur autre vie may be granted, not only to a man and his heirs, but to a man and the heirs of his body ; and this is termed a quasi entail; the interest so granted not being properly an estate tail, for the statute De donis applies only where the subject of the entail is an estate of inheritance {g) : but yet so far in the nature of an estate tail, that it will go to the heir of the body as special occupant during the life of cestui que vie ; in the same manner as an estate of inheritance woidd descend, if limited to the grantee and the heirs of his body. And such estate may be also granted with a remainder thereon during tTie life oT cestui que vie : but the alienation of the quasi tenant in tail A\dll bar not only his issue but those in remainder ; and the alienation for that pm'pose (unlike that of an estate tail properly so called)may be effected by any mctliod of conveyance inter vivos (K). The title of common occupancy in an estate j?Mr autre vie, is now in effect annihilated by successive provisions of the legislatiu-e. For by the statute of frauds 29 Car. II. c. 3, 14 GeoJI.j;. 20, and 7 WiU. iV. & 1 Vict. c. 26,jucii an estate (except, as it would seem, in the case of a quasi entail) is rendered devisable by will {i) ; and when no dis- (/) See Vaughan, 201 ; Doe v. Doe v. Luxton, 6 T. R. 289 ; Martin, 2 W. Bl. 1150; Doe i;. Lux- Campbell v. Sands, 1 Sch. & Lef. ton, 6 T. R. 291 ; Bearparkv. Hut- 294 ; Dillon v. Dillon, 2 Ball & B. chinson, 7 Bing. 188. 77; Hopkins v. Raniaclge, 1 Batty, (g) Co. Litt. by Harg. 20 a, n. (5). 365. (/() See 3 P. Wms. 265, n. (5 ed.) ; ( j) It seems not to bave been de- Norton V. Frecker, 1 Atk. 524 ; visable previously (1 Powell, Dev. Grey ». Mannock, 2 Eden, 339; 34). As to the effect of 29 Car. 2, c. 456 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. position of it has been made by the deceased o^\nier, and there is no special occupant, it is placed, on the death of the**avNTier, on the same footing wth his personal estate. Thie statute last mentioned, after repealuig the fonner pro- visions, except as to the estates pur autre vie of persons dying before 1st January, 1838 (/), provides (in terms somewhat more extensive than the prior enactments), that an estate pur autre vie, of whatc'S'er tenure {m), and whether it be a corporeal or incorporeal hereditament, may be de- vised by last Avill and testament ; and that if no disposition by Avill be made of an estate pur autre vie of a freehold nature, it shall be chargeable in the hands of the heir (if it comes to him by reason of special occupancy) as assets by descent {n), as in the case of fi-eehold land in fee simple : and in case there shall be no special occupant of any estate pur autre vie, it shall go to the executor or administrator of the party that had the estate by ^-irtue of the grant; and, in eveiy^ case where it comes to the hands of such personal representative, shall be assets in his hands, to be apphed and distributed in the same manner as per- sonal estate {ri). It is only in an estate p^ir autre vie (as ah'eady re- marked), that our law affords any example of the acqui- sition of land by occupancy. It is difficult at least to put anv other instance wherein there is not some owner of the land appointed by the law (o). [In the case of a sole corporation, as a parson of a church, when he dies or re signs , though there is no actual owner of the land till a successor be appointed, yet there is B,^legal, potential OAvnership subsisting in contemplation of law ; and when the successor is appointed, his appointment shall have a 3, s. 12, see Doe rf. Jeff v. Robinson, (w) The earlier statutes did not 8 Barn. & Cress. 296 ; Doe d. Lewis apply to copyholds, Zouch v. Forse, V. Lewis, 9 Mee. & W. 662 ; see also 7 East, 186. Co. Litt. by Harg. 41 (b), n. \^s). (n) As to assets, vide sup. p. 434. ( I) 7 Will. 4 & 1 Vict. c. 26, ss. 2, (o) 2 Bl. Com. p. 261. 34. CH.VP. XIII. — OF TITLE BY OCCUPANCY. 457 [retrospect and relation backwards, so as to entitle him to all tlie profits from the instant that the vacancy commenced. And in all other instances, when the tenant dies intestate, and no otTier OAv ner of the lands is to be found in the common coiu-se of descent, there the law vests an owner- sliipTrTthe croAATi, or in the subordinate lord of the fee, by escheat. So also In some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or dereliction of the waters ; in these instances the law of England assigns them an immediate owner.] Thus, [in case a new Island rise in the sea, though the ci\al law gives it to the first occupant (p)5_yet oiu's gives it to the sovereign (g). And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma ; or by dereliction, as when the sea shrinks back below the usual water-mark ;] in these cases the law is held to be, that if this gain be by Httle and httle, hj small and imperceptible degrees, it shall go to the owner of the land immediately behind, for de minimis non curat lex. But if the alluvion or derehction be sudden and considerable, in this case it belongs dejure communi to the crown ; for the soil, when the sea flowed over it, was prima facie tlie cromi's property (r), and therefore ought to remain so, though no longer covered by the sea (5). (p) Inst. 2, 1, 22. 268. (q) Hale, de Jure Maris, 17 ; CaUis {s) 2 Bl. Com. 262; Hale, ubi of Sewers, 45, 2nd edit. The trea- sup. j 2 Roll. Ab. 170; Dyer, 326; tise, deJure Maris, was published by Callis, 51, 53; and see Rex v. Lord Mr. Hargrave, and has been gene- Harborough, 3 Barn. & Cress. 91 ; rallyreceivedasa work of Lord Hale ; 5 Bing. 163; Scratton v. Brown, 4 but doubt is thrown on this point in Barn. & Cress. 505. It is to be a learned argument of Mr. Serjeant observed, however, that in Hale Merewether, in Attorney-General v. (])p. 12, 17), it is laid down that the Mayor, &c. of London, before the king may grant a manor cum littore Court of Chancery. maris to a subject, and tiiat the shore (r) Hale, ubi sup. p. 14; see (that is, the space between the ordi- Blundell I'. Catterall, 5 B. & Aid. nary high andjow water-mark,) will 458 EK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. And upon the same principle, a sudden inniindation fi'om the sea mirnot deprive the former OAvner of the land sub- merged, of his right (t); though, on the~other hand, it has been decided, that where the sea gains ^^^nt•^ tlic land ]jy gradual advance, (the croAATi being the om lui Lt t\\een high and low water-mark,) the crown becomes also the OAA-ner orthe^and~newlj covered vnth water (u). It is said too by Bracton, [that if an island rise in the middle of a rivei^, it belongs, in common, to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore {x).'] Yet [this seems only to be reasonable where the soil of the river is equally divided between the owners of the opposite shores ; for if the Avhole soil is the freehold of any one man, — as it usually is whenever a several fishery is claimed (?/), — there it seems just (and so is the constant practice) that the eyotts or little islands^ arising in any part of the i*iver, shall be the proj^eri-y of him who qwneth the piscary and the soil.] It is fVu-ther laid doA^Ti in om' books, that [if a river nmning between two lordshijjs, by degrees gains upon the one, and thereby leaves the other 6lvj ; the owner who loses his ground thus imperceptibly has no renaeHy {] but if the com\se of the river be changed by a sudden and violent flood, or otEer hasty means, his land M-ill not be lost (z). [And this law of alluvions and derehctions, AA^ith regard to rivers, is nearly the same in the imperial law (a), from whence indeed those our deter- minations seem to have been drawn and adopted ; but we ourselves, as islanders, have apphed them to rnarine increases.] pass; and it would seem that after (.r) Bract, lib. 2, c. 2. such a grant, a sudden increase of (y) Smith v. Kemp, Salk. 637. land by alluvion or derelicdon, (z) Callis, 51,2nd edit. In Black- within these limits, must belong to stone (vol. ii. p. 262) the statement the grantee. on this subject is, that "he shall (t) Hale, de Jure, &c., pp. 15, "have what the river has left in any 17. "other place;" but this seems not (u) In re Hull and Selby Railway, to be supported by the authorities. 5 Mee. & W. 327. (a) 2 Inst. 1, 20, 21, 22, 23, 24. ( 459 ) CHAPTER XIV. OF TITLE BY FORFEITURE. [Forfeiture is a piinlshment annexed by law to some illegaTact, or negligence, in the o^vner of lands, tenements, or hereditaments, whereljy hie loses all his interest therein, ahd^thej go to"the party injiu-ed as a recompense for the wroiig which either he alone, or the pubHc together mth himself, hath sustained.] Lands may be forfeited by various means ; some of which it will not be convenient to discuss in this place, as they are incidental only to subjects of a more general description, belonging to other divisions of the work. But t here a re three kinds of forfeiture which require a distinct and sepa- rate consideration, and to which the present chapter will conseguently Tje'^devoted. Tlie first of them accrues by ahenation in mortmain ; the second, by the "s^Tongful ahenation of particular tenants ; the thhd, bj^ A^-rongM d isclaimer . 1. [Ahenation in mortmain, in mortua manu, isjin ahen- ation of lands or tenements to any corporation ( a), — so le or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in conse- quence whereof the lands became perpetually inherent in one " dead hand," this hath occasioned the general appel- lation of mortmain to be applied to such alienations ; and the rehgious houses themselves to be principally con- sidered in forming the statutes of mortmain : in deducing the history of which statutes, it Arill be matter of curiosity (a) Co. Litt. 2 b. As to corporations, vide sup. pp. 362, 3GG, 379 ; post, bk. IV. pt. III. c. I. 460 BK. II. OF RIGHTS OF PROrEIlTY. — PT. I. THINGS REAL. [to obsei'A'e the great address and subtle contrivance of tlie ecclesiastics in eluding from time to time tlie laAvs in being, and the zeal ^N-ith Avhich successive parhaments have pur- sued them through all their finesses ; how nevr remedies were still the parents of new evasions ; till the legislature at last, though with difficulty, obtained a decisive victor)\] By the common laAv, a corporation is as capable of purchasing lands as an individual (&) ; — subject to_this distinction^ that persons cqrporate take the fee to hold to their successors, instead of their heirs. Yet fit was always, and is still, necessaiy for corporations to have a licencein mortmain from the crown , to enable them to] become t he holders of [lands(r): for as the king is the ultimate lord of every fee, he ought not, nnlrss bv liis own consent^ to lose his jirivileg'c of" escheats and otlier feudal profits, by the vesting of lands in tenants that can never be attainted or tlie. And such Hcences of mortmain seem to have been necessary among the Saxons, above sixty years before the Nonnan conquest (t?). B ut besides this general l i cenc e from the king, as lord paramoimt o f the kingdo m, it was also requisite, Avhenever there wa s a mesn e or intermediate lord between the king and the ahenor, to obtain his licence also (upon the same feudal principles), for the alienation of the specific land. And if no such licence Avas obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeitiire.] Yet [such were the influence and ingenuity of the clergy, that, not- AAithstanding this frmdamental principle, we find that the largest and most considerable dotations of religious houses] without licence, [happened "uitliin less than tw o cen tinies a fter the Conquest.] But, when these [began to grow (&) Case of Sutton's Hospital, 10 authority, whether before Magna Rep. 30; Co. Litt. 2 b. Charta, any restraint was put by (c) F. N. B. 221. It should be the common law upon alienations observed, however, as to the anti- in mortmain ; see Hallam's Middle quity of the principle, that a doubt Ages, vol. ii. p. 321, 7th edit, is expressed by a writer of great () Co. Litt. 22.5 a. CIIAr. XYI. — OF DEEDS. 491 [sufficient words to declare clearly and legally the party's meaning. But as these formal and orderly parts are cal- culated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is pi-udent not to depart from them without good reason or urgent necessity :] and therefore such of them as are appropriate to deeds containing a conveyance of land, shall here, be mentioned in their usual order {q). 1. [^The premises may be used to set forth the nmnber and names of the parties, with their additions or titles ;] andT m the case of an indentm-e, the deed is always formally descrilx'd as made inter partes, that is, as made between such an one of the one part, and such another of the other part. 'As to which, this distmction was formerly esta- blished, that one named as party in an indenture could not covenant with a stranger (or person not named as party), nor could the latter take an estate by the deed, excepll)y way of remainder ; though on the other hand, a straiiger Inight covenant with one who was party, and bindT himself by executing the deed (r). But by 8 & 9 (q) Co. Litt. 6 a. Two Acts may and approved by the purchaser, the be noticed here which were passed, latter prepares the draft of the con- in 1845, to enable parties, if they veyance ; and when that draft is ap- think proper, to abridge the Ian- proved by the vendor, the purchaser guage in which deeds relating to prepares an engrossment of the deed real property have been usually properly stamped, and sees to the drawn, viz, 8& 9 Vict. c. 119 and execution of it accordingly. When c. 124. But it is believed that they the transaction is not a sale, but a have not been much acted upon. It demise of real property, the practice may be useful to notice also here is different No abstract is delivered, the practice, which customarily pre- and the draft and engrossment pro- vails among conveyancers, as to the perly stamped of the lease, (as to preparation of deeds relating to real which instrument, vide post, p. 521,) property. On a sale of such pro- are usually prepared not by the perty, the vendor delivers an ab- lessee but by the lessor, stractof all such instruments as have (r) Co. Litt. 259 b; Salter v. been executed in regard to the pro- Kidgley, Carth. 76; Storer t;. Gor- perty for the last sixty years. When don, 3 M. & Sel. 322; Berkeley v. the abstract has been verified by Hardy, 5 B. & Cress. 355. examination of the instruments, &c.. 492 BK. II. OF RIGHTS OF PROFERTY. — PT. I. THINGS REAL. Vict. c. 106, s. 5, it is now provided, that an immediate estate and interest in any hereditaments, and Ijenefit of a cohditidu or covenant respecting any hereditaments, may be taken, though the taker be not named a party to the same indentiu'e. The premises [also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.] With respect to the last, that is, the description of the thing granted, a conveyance of any land will suffice (as we have elsewhere seen) to pass also the structures or buildings thereon, as Avell as aU mines below the sm- face (s) ; but a conveyance, by deed, of certain land, or of a certain house, even adding the words with the ap'purte- nances, will not pass land not specified, although it may have been usually occupied together Avith the property wluch is specified : imless indeed it consist of the orchard, garden, or curtilage of a house ; in which case it woidd pass under a grant of the house and its appurtenances, or even (as it should seem) imder a grant of the house simply (t). 2, 3. [Next come the habendum and tenendum ("to have and to liold"). ~T!Tie office of the habendum is pro- perly to determine what estate or interest is granted by the deed (u) ; though this may be performed, and sometimes (s) Vide sup. p. 174. include all houses, out-houses, &c. (t) See Co. Litt. by Harg. 5 b, &c., and hereditaments and appur- n. (1); 2 Saund. by Wms. 401, n. tenances whatsoever to the lands (2). As to the word appurtenances, therein comprised belonging, or in see Co. Litt. 121b; Hinchliffe v. anywise appertaining, &c. ; and also Kinnoul, 5 Bing. N. C. 1, 25. It is (in the case of a conveyance of the to be noticed here, that by the Acts fee) the reversion and remainders, of 8 & 9 Vict., referred to supra, &c., and all the estate. Sic, both at p. 491, in n. (q), it is provided that law and equity, of the grantor, &c. every deed made conformably to (u) As to the eftect of an haben- those Acts shall, unless any exception dum as from a day antecedent to he specially made therein, be held to the time of the execution of tlie CHAP. XVI. — OF DEEDS. 493 [is performed, in the premises. In which case the haben- dum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to, the estate granted in the p remises . As if a grant be " to A. and the heirs of his body" in the premises, habendum " to him and his heirs for ever," or vice versa ; here A. has an estate tail and a fee simple expectant thereon (:r). But had it been in the pre- mises " to him and his heii's," habendum "jto him for lifcj" the habendum would be utterly void (y) ; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it. The tenendum " and to hold" is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify jthe tenure by which the estate granted was to be holden ; viz. ^* tenendum per servitium militare, in hurgagio, in liber o socagio, c^c." But aU these being now reduced to free and common socage, the tenui-e is never specified. Before the statute of Quia emptores (18 Edw. I.), it was also sometimes used to denote the lord of whom the land should be holden ; but that statute directing all fiiture purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, tliis use of the tenendum hath been also antiquated ; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de capitalibus dominis feodi (^z) ; but as this ex- pressed nothing more than the statute had akeady pro- Added for, it gradually grew out of use. 4. Next follow the tenns of stipidation, if any, upon which the grant is made; the first of which is the reddendum, or reservation whereby the gi-antor doth create or reserve some new thing to himself out of what he had before granted. As " rendering therefore yearly the sum of 10s., or a pep- deed, see Shaw v. Kay, 1 Excli. 5 B. & Cress. 709. 412. {y) Baldwin's case, 2 Rep. 23; (x) Co. Litt. 21 a; Thurman v. Earl of Rutland's case, 8 Rep. 56; Cooper, 2 Rol. Rep. 19, 23 ; Cro. (z) Madox, Formul. passim. Jac. 476. And see Goodtitle v. Gibbs, 494 BK. II. OF RIGHTS OF PEOPERTY. — PT. I. THINGS REAL. [percom, or two days ploughing, or the Hke." Under the pvire feudal system, this render, reditus, return or rent, consisted, in chivalry, principally of military services ; in \allenage, of the most slavish offices ; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit (a). To make a reddendum good, if it be of any thing ncAvly created by the deed, the reservation must be to the grantors, or some or one of them, and not to any stranger to the deed ih). But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee. 5. Another of the terms upon which a grant maj be made is a condition; which is a^lause of contingen cy, on the happening of which the estate granted may be de- feated; as "provided always, that if the mortgagor shall " pay the mortgagee oOOZ. upon such a day, the whole " estate granted shall determine," and the like (c). 6. Next may follow a clause of warranty; whereby the grantor doth, for himself and his heu-s, warrant and secm-e to the grantee the estate so granted (c? ). By the feudal con- stitution, if the vassal's title to enjoy the feud was disputed, he might " vouch," or call the lord or donor to warrant or ensure his gift ; which if he failed to do, and the vassal was evicted, the lord was bormd to give him another feud of equal value in recompense (e). A nd so, by our ant ient law, if befor e the statute of Quia emptores a man enfeo ffed another in fee, by the feudal verb dedi, to h old of himse lf (a) Vide sup. pp. 194, 210. antient state of the law; for war- (ft) Browning v. Beston, Plowd. ranties have long fallen into disuse. 132; Whitlock'scase, 8 Rep. 71. Indeed, it is by no means clear (c) As to mortgages, vide sup. (having regard to recent enact- p. 310. ments) what effect would now be- {d) As to warranty, see Co. Litt. long to a warranty. See 3 & 4 Will, by Butl. 365, a, n. (1), 373, b, n. 4, c. 27, s. 36 (abolishing the writ of (2), where the whole subject is co- warrantia charta and real actions in piously discussed. And see Doe t;. general). See also sect. 39 of same Jones, 1 Tyrw. 506. It is now, how- statute, and 3 & 4 Will. 4, c. 74, ever, a subject of little importance, s. 14. except in its connection with the (e) Feud. 1. 2, t. 8 and 25. CHAP. XVI. — OF DEEDS. 495 fan d his heirs by certain ser\aces, the law annexed a_war- ranty to this grant, w hich boiuid the feofFor and his h eirs, to whom the services (which Avere the consideration and equivalent for the gift) were origmally stipidated to be rendered (/).] And npon a similar principle, [i n case , ^ after a partition or ex change of lands of inheiitance, either party or his heirs were e\icted of his share, the other and his heirs were boimd to warr anty (^), becaus e they enj oy the equivalent. And so upon a gift in tail or lease for life, ^ rendering rent, the donor or lessor and his heirs (to whom the rent is payable) were boimd to wan'ant the title {K). But in a feoftiuent in fee b y the verb dedi, s ince the s tatu te ^^ of Qida emptores, the feoffor only was bound to the im- plied warranty, and not his heirs (I); because it is a me re personal contract on the part of the feoffor, the tenure ( a nd of coiu'se the antient services) resulting back to th e s uperior lord of the fee j^ And now by 8 & 9 Vict, c . 106, ^ s. 4, it is enacted, that an exchange or partition of any tenements or hereditaments made by deed executed after O the 1st Octobe r, 1845, shall not imply any con dition_jn "• law, and that the word " give" or the word " grant" in a deed, executed after the same day, shall not imply any covenant in law in resj)ect of any tenements or heredita- ments, except so far as the word " give" or the word "grant" may, by force of any act of ^^arliament, imply a covenant. In other forms of alienation, gradually intro- duced since the statute of Quia emptores, no warranty whatsoever has ever be en held to be im])l ied ; [they bear- ing no sort of analogy to the original feudal donation ; and therefore in such cases it became necessaiy to add an ex- press clause of wan-anty to bind the gra ntor an d his heirs;] which [can only be created by the verb warranti zo or war- rant (k). (/) Co. Litt. 384 a. But the word (/.) Litt. s. 733; Co. Litt. 384 a ; concessi implied no warranty. (Ibid.) See Doe v. Prestwidge, 4 M. & Sel. (g) Co. Litt. 174, 384 a. 178, 182. So an express warranty {h) Co. Litt. 384 b. cannot be created without deed. (?) Ibid. (Co. Litt. 386 a.) 496 BK. II. OF RIGHTS OP PROPERTY. — PT. I. THINGS REAL. [These express wan-antics were introduced, even prior to the statute of Q,uia emptores, m order to evade the stnct- ness of the feudal doctrine of non-a licnation w ithout tlie c onsent of the heir (i). For tiiough, at the death of his an- cestor, h e might have entered on any tenements that w ere aliened without his concurrenc e, yet if a clau se of warranty was added to the anc estor's grant, this covenant descend ing upon the heir, insured the grantee ; not so much by con- fii-ming his titl e, as by obliging such heir to yield him a reco mpense m lands of equal value ; the law, in favoiu" of alienations, supposing that no ancestor would wantonly disinherit his next of blood (m) ; and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land ; and that this eqrdvalent descended to the heir, together with the ances- tor's warranty. So that when an ancestor, being the rightful tenant of the freehold, either conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such wari'anty not only bound the warrantor himself to protect and assiu-e the title of the warrantee, but it also bound his heir ; and this, whether that warranty was lineal, or collateral to the title of the land. ZzwmZ warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor Avho majle the warranty; as where a father, or an elder son in the life^f the father, released to the disseisor of either them- selves or the grandfather, mth warranty, — this was lineal to the yormger son(w). Collateral waiTanty, was, where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor; as where a yoimger brother released to his father's disseisor, ^vith warranty; — this was collateral to the elder brother (o).] [In both lineal and collateral warranty, the obligation^of (0 Vide sup. p. 471. (m) Litt. ss. 703, 706, 707. (;«) Co. Litt. 373 a. (o) Ibid, ss. 705, 707. CHAP. XVI. — OF DEEDS. 497 [tlie heir, in case the Avarrantee was evicted to peld him other lands in their stead, was onlj^ on condition that he had other sufficienFTands hj descent from the warranting ancestor {p)7'^ "But though, A\4thout assets (q), he was not bomi3[ to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually"15arfed"B-om claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent (if he had them not before), and must fulfil the warranty of" his ancestor : and the same laile (r) was, ^\\\h. less justice, adopted also in respect of collateral wan-anties, w hich likcA\dsc (though no assets descended) baiTed the heir of the warrantor from claiming the land liy any col- la teral title ; upon the presvimption of law that h e might h ereafter have assets by descent either fr-om or tlirough the s ame ancestor. The inconvenience of this latter branch of the rule was felt veiy early, when tenants by the ciu-tesy took upo n them to aliene their lands with waiTanty ; which collateral warranty of the father, descending up on the son ( w ho was the heir of both his ]3arents), baiTed him fr-om claiming his m aternal inheritanc e : to r emedy Avhich the statute of Gloucester, (6 Edw. I. c. 3,) declared that such waiTanty should l^e no bar to the son, u nless asset s de- s cended ti-om the fathe r. It was aftei-wards attempted i n 50 Edw. III. to make the same proAasion miiversal, by enacting that no collateral warranty should be a bar, imless where assets descended from the same ancestor {s) : but i t then proceeded not to effec t. However , by the statute 1 1 Hen. V il. c. 20, not^^ithstanding any alienation Avdth war- ranty by tenant in dower, the heir of the husband is not baiTed, though he be also heir to the wife. And by sta tute 4 & 5 Anne, c. 16, all warranties by any tenant for life shall be voi d against those in rem ainder or reversion ; and a ll coll ateral warranties by any ancestor , who has no esta te o f inEeritance in possession, shall be void against his heir.] (p) Co. Litt. 102 a. (r) Litt. ss. 711, 712. {q) As to assets, vide sup. p. 434. (s) Co. Litt. 373. VOL. I. K K 498 BK.II. OF RIOnTS OF mOPERTY. — PT.I. THINGS REAL. But this statute did not affect the collateral Avarranty of t enant in tail in ]) ossession : and it had been jn'eviously held, that the collateral warranty of tenant in tad (thou gh mthoiit assets) barred the rcuininderman or reversioner on whom it descended ; [not beino- within the statute Dennis, as that Act Avas prlncipaJJy mteiiicled to ])revent the tenan t i n tail fi'om disin he ritino- his own issue ( fj."| It had been se ttled, too, that the lineal wan-anty of tena nt m tail with assets, was a sufficient bar to the issue, [bei ng indeed noth ing more in effect than exchanging the lands entaile d for others of equal value ;] though on the other hand, his lineal warranty Avithout ass ets, was held, byanalogy to t he statute ot (jloucester, to be n o bai '(^). And such con- tin ued to be the state of the law, till both one bar and_the other were abolished by the m odern statute 3 & 4 Will. IV. c. 74, s. 14 . 7. A deed of conveyance usually contains, in i^ie next place, [covenants, conventiones, — Avhich are clauses of agreement whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or to give something to the other. Thus the grantor may covenant that he hath a right to convey ; or for the grantee's quiet enjoyment or the like {x) ; the grantee may covenant to pay his rent, or keep the premises in repair, &c.] A covenant in any deed gives to the covenantee and his representatives, in case of its breach, a right of action for damages against the covenantor and his representa- K ul any consideration whatever, or even those made for good, though not for valuable, consideration, are said to be voluntary ; and by force of the statute 27 Eliz. c. 4 (z), A-oluntary deeds are void as against hona fide p ur- c hasers (^ }; and arc also void (by 13 E liz. c. 5) a s aga inst creditors, -w here the grantor is indel)tcd to such cred i tors a t t he tune, to the extent of insolvency (/). So all deeds are liable to be impeached if founded on immoral or illegal consideration, or if obtained by fraud (m). But in gener al, their le gal efficacy ydW not be ]3re vented ])v the mere wan t of consideration. For in this i-espect they are dis tin- guished from simple co ntracts, that is, contracts not under seal ; to the validity of Avhicli some consideration is essen- tial : but a writing sealed and delivered as a deed, is sup- posed by the law to be made ^\i\\\ due deliberation ; and to express, ftdly and absolutely, the intention of the party by whom it is executed: he is therefore bound by its execution, whether he received a consideration for the grant or engagement which it comprises, or not (n). We Qi) Twyne's case, 3 Rep. 83 ; 2 piece, 2 Barn. & Aid. 554 ; Pratt v. Rol. Abr. 779 ; Palm. 214. Barker, 4 Russ. 507. According to {i) Made perpetual by 39 Eliz. Blackstone, (vol. ii. p. 296,) a deed C.18, s. 31. made without consideration is "as {k) See Johnson v, Legard, 6 M. " it were of no effect, for it is con- & Sel. 60T Doe v. Manning, 9 East, " strued to enure or to be effectual 59 ; Doe v. Rolfe, 8 Ad. & El. 650 ; " only to the use of the grantor Metcalfe v. Pulvertoft, 1 Yes. & Bea. " himself." But this properly applies 183; Doe d. Richards v. Lewis, only to conveyances; and, even as to 11 C. B. 1035. these, is too largely laid down: for (/) See Bac. Abr. Fraud (C) ; it is clear, that a conveyance, if in- Glaister t'. Herver, 8 Ves. 200; Bat- tended to be gratuitous, or by way tersbeei'. Farrington, 1 Swanst. 113; of mere gift, will operate accord- Holloway v. Millard, 1 Mod. 419; ingly ; and be effectual for the bene- Johnson v. Legard, Turn. & Russ. fit of the grantee, except as far as 293; Tarleton t>. Liddell, 20 L. J., it may interfere with the rights of Q. B. 507. creditors or bona fide purchasers. {iri) See Collins t'. Blantern, 2 (See Irons v. Smallpiece, 2 Barn. & Wils. 341. Aid. 554 ; Pratt v. Barker, 4 Russ. (m) Bac. Read. Uses, 79; Bunn r. 507.) Guy, 4 East, 200 ; Irons v. Small- ClIAP. XVI. — OF DEEDS. 507 may add here, that whenever it appears that a deed was obtained by fraud, force, or other foul practice, or it is proved to be an absohite forgery, such instrument is not only incapable of being enforced, but may be formally set aside by the judgment or decree of a court of judicature. This was antiently the province of the Court of Star Chamber, and it now belongs to the Court of Chan- cery (o). In reference, moreover, to this subject, it is to be obser^'cd, that a deed may not only be avoided, but discharged. For by a release a party may be discharged from the obligations even of a valid deed; but such release to be effectual must be itself by deed(j9). IV. As to the general rules Avhich our law has esta- blished relative to the construction of deeds, they are prin- cipally as follows : TT A deed is to be expounded according to the intention, where the intention is clear, rather than according to the precise words used ( (7). For "verba intentioni dehent in- servire ;" and " qui hceret in liter a, hceret in cortice." [There- fore by a grant of a remainder, a reversion may well pass, and e converse (r).] And upon a similar principle, it is a maxim that [" mala grammatica non vitiat chartam,^'' neither false English nor bad Latin will destroy a deed (5) ; which perhaps a classical critic may think to be no unnecessary caution.] 2. To explain an ambiguity in the language of a deed. (0) 1 Shep.Touch. 70; 2 Bl. Com. may be barred by a release not by son. deed. See Index to vol. iii. in tit. {p) See West D. Blakeway, 2 M. " Equitable Pleading." & G. 729. It may, however, be {q) Chapman v. Dalton, Plowd. right here to apprise the reader that 289; Hasker v. Sutton, 1 Bing. 500. in some cases where relief against a (r) Hob. 27. And see 2 Saund. deed can be had in Chancery, re- by Wms. 96 b, n. (1). cent enactments have allowed relief {s) Osborn's case, 10 Kep. 133 ; to be obtained also in a court of 2 Sh«w. 334. law ; so that an action on such deed 508 BK. II. OF RIGHTS OF PKOPEETY. — I'T. I. THIXGS RE.VL. no e\ddence dehors the deed itself is admissible (0. For in sucE cases, tlie doubt arises merely from the failiu-e of the parties to express their own meaning in proper terms ; and if the law allowed the difficulty to be removed by ex- traneous evidence, it Avould render precision of less import- ance, and introduce inconvenient laxity into the structure of deeds in general (u). But here it is necessary _to distin- guish between patent and latent ambiguities (x). The first are,^where the doubt arises upon the face of the instrmnent itself; and to these the lade applies : the second are, where the doubt is introduced by the existence of a fact not apparent on the face of the deed ; and to these the rule hasTio application (z/) : the reason for which seems to be, that where the ambiguity itself is produced by circiun- stances extraneous to the deed, its explanation must of necessity be sought for through the same medium. 3. The construction of a deed should be made upon the entire instrument, and so as to give effect, as far as pos- sible, to every word that it contains {z). 4. The construction should be favourable, and such that "res magis valeat guam pereat{a).^^ In connection appa- (0 Bac. INIax.Reg. 23. The same Queen v. Wooldale, 6 Q. B. 549. general rule applies to written agree- {y) In the case of a devise (to ments, not amounting to deeds. which, as to all other written instru- (See Higgins v. Senior, 8 Mee. & W, ments, the rule applies), a " latent " 844.) It is to be observed, however, ambiguity has been thus illustrated, that the terms of a contract may, in that if a man devise to his son John, some cases, be expounded by refer- having two sons of that name, ence to usage. (Spicert). Cooper, 1 evidence will be admitted to show Q. B. 424 ; Grant v. Maddox, 15 which son the testator meant. See Mee. & W. 745.) 5 Rep. 68 b ; 2 Atk. 372 ; 2 P. Wms. (a) Or (as expressed by Lord 135. Bacon) it would " make all deeds («) 2 Bl. Com. 379. " hollow, and subject to averments." (a) See Plowd. 156; Shep. Touch. (Bac. Max. Reg. 23.) 82, S3; 2 Bl. Com. 380; 2 Saund. (x) As to patent and latent ambi- by Wms. 96, n. (1); Roe v. Tran- guity, see 4 Cru. Dig. 425 ; 6 Cru. mar, Willes, 682 ; James v. Plant, Dig. 165; Bac. Max. Reg. 23; San- in error, 4 Ad. & El. 766 ; Doe d. derson v. Piper, 5 Bing. N. C. 425 ; Lewis v, Davies, 2 Mee. & W. 516. Doe d. Gains v. Rouse, 5 C. B. 422 ; CHAP. XVI. — OF DEEDS. 509 rcntly witli wliicli rule, it is also laid clo'wai, that [if the Avorcls wiU bear two senses, one agreeable to and another against Toav, that sense shall be preferred which is most agreeable thereto (b). As if tenant in tail lets a lease to have and to hold during life gencrallj, it shall be con- strued to be a lease for his own life only, for that stands with the law ; and not for the life of the lessee, which is beyond his powder to grant.] 5. When any thing is granted, the ineans necessary for its enjoymeiiF^'e also granted by implication ; for it is a maxim that " cuicunque aliquld conceditur, conceditur et id sine quo res ipsa non esse potuit (c)." Thus, if a man conveys a piece of ground in the midst of his estate, a right of way to come to it, over the land not conveyed, "N^dll pass to the grantee. 6. [If there be two clauses so totally repugnant to each other that they cannot stand together, the first shall be re- ceived, and the latter rejected (c?).] TT^mbiguous words shall be taken most strongly against tTiegrantor, and in favoiu' of the grantee (e). " X^erha foj'tius accipiuntur contra proferentem." [For the principle of self-preservation will make men sufficiently carefi.ll not to prejudice their OAvn interest, by the too ex- tensive meaning of their words ; and hereby all manner of deceit in any grant is avoided, for men Avould always affect ambiguous and intricate expressions, if they were after- wards at liberty to put their own construction upon them.] But [in general, this i-ule, being a rule of some strictness (b) Co. Litt. 42 a. Doe d. Spencer v. Pedley, 1 Mee. (c) See Co. Litt. 56 a ; Shop. & W. 677. The rule, however, in Touch. 89 ; Liford's case, 11 Rep. such case, when arising on a devise, 52; 1 Saund. by Wms. 323 a, n. (6); seems to be to consider the latter Lord Darcey v. Askwith, Hob. 234 ; clause__as the one to be followed. Earl of Cardigan v. Armitage, 2 (See Co. Litt. ll26 ; Plowd. 541; Barn. & Cress. 211 ; Harris v. Ryd- Doe d. Spencer v. Pedley, ubi sup.) ing, 5 Mee. & W. 60 ; Hinchlifle v. (e) See Co. Litt. 36 a ; Bac. Max. Kinnoul, 5 Bing. N. C. 24. Reg. 3 ; 2 Bl. Com. 380 ; Doe v. (d) See Shep. Touch. 88 ; Hard. Edwards, 1 Mee. & W. 556; Bullen 91 ; Doe d. Leicester, 2 Taunt. 113 ; v. Denning, 5 Barn. & Cress. 812. K K 7 510 BK. II. OF RIGHTS OF PROPEETY.— FT. I. THINGS REAL. and rigour, is the last to he resorted to, and is never to be rehed upon but where all other rxdes of exposition fail(y)] and it doe« not appl^to_a grant by the Crown at the suit of the grantee {g). Having thus considered the general nature of deeds, we may remark finally, as to their use and application, that it is not only through these instruments that " conveyances" are for the most part effected, but that a deed is in some cases absolutely essential to the transaction in hand, as will be more fully noticed Avhen the occasions shall arise. (/) Bac. Max. Keg. 3. (g) Vide post, p. 627. ( 511 ) CHAPTER XVII. OF ORDINARY CONVEYANCES —AND FIRST, OF THOSE AT THE COMMON LAW. The branch of law which relates to " conveyances," or the instruments of voluntary alienation, is properly of a practical character, and seems in the nature of things capable of being regulated with great simplicity. It in- volves, hoAvever, in the English jurisprudence, considera- tions of a very complex and subtle kind, and has been elaborated into a highly artificial system, known under the denomination of conveyancing, — a system which main- tains its 0"\vn separate body of practitioners and professors, and constitutes a science in itself (a). In the earlier times, and indeed do'WTi to so late a period as the reign of Plenry the eighth, the chief distinction be- tween the different modes of conveyance, as regards lands of fi'ee tenure {h), to which alone our attention is at present directed, was this, that they were either by matter in j)ais, or by matter of record (c) ; the first, which were the ordi- naiyclass, comprehending such as were transacted between two or more persons i7i pais, in the countiy (that is, ac- cording to the old common law, upon thejyery spot to be transTeiTed (d^ ) ; the second, such as were effected by an assurance in the sivperior courts of justice. But in and subsequent to the reign just mentioned, various acts of par- (a) See 44 Geo. 3, c. 98, s. 14. conveyed, vide post, c. .\xrr. As to conveyancers, see 23 & 24 (e) As to records, vide sup. pp. Vict. c. 127, s. 34. 48, 488, n. {d): and see the same (b) As to lands of cqptihol d tenur e, note, as to matter in pais. and tlie manner in which they a re {d) 2 Bl. Com. 294. K K 8 512 BK. II. OF IlIGHTS OF PllOPERTY. — VT. I. THINGS REAL. liament have been passed, the effect of Avliicli has been to introduce a new class of conveyances ; distinguished from the more antient ones, as deriving their force and authority fi'om these statutes, and not fi-om immemorial custom, or the common law of the realm ; and it will be found con- venient, in discussing the general subject of conveyances, to keep the latter distinction, as well as the former, promi- nently m Adew. We shall therefore divide the conveyances of land of freehold tenure, first, into conveyances of the ordinary kind^being in effect the same with those antiently described as 1,71 pais : and secondly, into conveyances by matter of record ; which, as compared with the other, are of a rarer or more special description. The first of these,__we shall again subdivide into two classes, first, conveyances at common law ; secondly, conveyances iy statute law. The conveyances at common law will constitute the subject of the present chapter; and thejMiiaybe thus eniimerated : — I. Feo^^t. II. Grant. III. Lease. IV. Exchange. V. Partition. VI. Release. VII. Confirmation. VIII. Sui-reuder. IX. Assignment. X. Defeasance. I. A Feoffment. In the course of our past disquisi- tions, we have already had frequent occasion to refer to this method of conveyance, because it was for ages the only method in ordinary use by which om* ancestors were wont to convey the freehold of land in possession ; and the doctrines relating to it are by consequence very closely con- nected with the fundamental pi-inciples of the law of real property, and essential to their illustration {d). And for the same reason, we shall proceed now to give a somewhat fuller accomit of its nature and properties than its actual importance, in practice, would seem to justif}\ For it is necessary here to apprize the reader, that t his co nveyance has now fallen, in great measiu-e, into disuse, ha,ving been {d) As to feofFinent, see Co. Litt. 48 a. CHAP. XYII. — OF COIS^^^EYANCES AT COMMON LAW. 513 almost entirely supplanted by some of that^ class which are foimded on the statute law of the realm. [Xleoffinent, then, is derived from the verb to enfeoff, feoffare or infeudare, to give one a feud,] and is a method of ahenation applicable to the purpose above described, viz. that of conveying an estate of freehold in possession in a corporeal hereditament; and to that purj)ose only(e). [This is plainly derived from — or is indeed itself the very mode of — the antient feudal donation ; for though it may be performed by the word " enfeoff^'' or " grant," yet the aptest word of feoffinent is " cZo" or " dedi"{f). And it is still directed and governed by the same feudal rules ; in- somuch that the principal ride relating to the extent and effect of the feudal grant, " tenor est qui legem dat feudo,^'' is, in other words, become the maxim of our law with rela- tion to feoffments, " modus legem dat donationi'' (g). And therefore as in pure feudal donations, the lord, fi'om whom the feud moved, must expressly Hmit and declare the con- tinuance or quantity of estate which he meant to confer, " ne quis plus donasse prcBsumatur, quam in donatione ex- presseriif^ so, if one grants by feoffiiient lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life (A). For as the personal abihties of the feoffee were originally presiuned to be the immediate or principal inducements to the feoffinent, the feoffee's estate ought to be confined to his person, and sid)sist only for his life ; unless the feoffor, by express pro^dsion in the creation and (e) A reversion or remainder, his consent is not given, the con- however, and the particular estate veyance must be by grant, and the on which it is expectant, may be livery is void. Litt. s. 567 ; Co, created by the same feoffment (vide Litt. 48 b, sup. p. 327). And so a freehold (/) Co. Litt. 9a. As to the effect reversion already created, if expec- of these words, in respect of their tant on a particular estate for years, not now implying any covenant in may be transferred by feoffment, law, vide sup. p. 498, n. with the consent of the particular {g) Wright's Ten. 21. tenant. (Co. Litt. 48 b.) But where (/i) Co. Litt. 42 a. VOL. T. L L 514 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [constitution of the estate, hatli given it a longer continu- ance.] It has therefore been the practice in all feoffinents, from time immemorial, to limit, by express words, the nature of the estate intended to be conveyed. [But by the mere Avords of the donation the feoffinent is by no means perfected ; there remains a very material ceremony to be perfonaaed, called livery of seisin,~\ "without which the transaction cannot operate as a feoffinent (^). [This Every of seisin is no other than the pure fiiidal in- vestiture or delivery of coi'poral possession of the land or tenement, which was held absolutely necessary to complete the donation (A). " Nam feudum sine investitura nullo modo constitui potuif (/) ; and an estate was then only per- fect when, as the author of Fleta expresses it in om* law, "fit juris et seisince conjunctid''' {m). Investitures, in their original rise, were probably in- tended to demonstrate in conquered countries the actual possession of the lord : and that he did not grant a bare litigious right, which the soldier was ill quahfied to pro- secute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or acciu'ately retained in the memory of bystanders, who were very httle interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate ; and that such as claimed title by other means, might know against whom to bring their actions. In all well-governed nations, some notoriety of this kind has been ever held requisite, in order to acqufre and ascer- tain the property of lands. In the Roman law, plenum do- minium was not said to subsist, unless where a man had both the right and the corporal possession ; which posses- sion could not be acquired without both an actual intention (i) Litt. s. 70. (0 Wright's Ten. 37. {k) Vide sup. p. 181. {m) L. 3, c. 15, s. 5. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 515 [to possess, and an actual seisin or entry into the premises, or part of them, in the name of the whole (n). And even in ecclesiastical promotions where the freehold passes to the person promoted, corporal possession is required at this day to vest the property completely in the new proprietor ; who, according to the distinction of the canonists (o), ac- quires the jus ad rem, or inchoate and imperfect right, by nomination and institution ; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in ecclesiastical dignities, possession is given by " instalment ;" in rectories and ^^carages, by " induction ;" without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by in- stitution. So also even in descents of lands by oiu' law, which are ca'st on the heir by act of the law itself, the heir,] as we have seen, [has not ■plenum dominium, or fiill and complete ownership, till he has made an actual cor- p oral entry into the lands (p).] [Yet the corporal tradition of lands being sometimes in- convenient, a s}Tnbolical dehver}^ of possession was in many cases antiently allowed, by transferring something near at han37 in the presence of credible witnesses ; which, by agreement, should serve to represent the^verj^ thing de- signed to be conveyed ; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself. Among the Jews, we find the e\'idence of a pm'chase thus defined in the book of Ruth {q) : " Now " this was the manner in former time, in Israel, concem- (n) "Nam apiscimur possessionem (p) Vide sup. p. 432, where it is corpore et animo ; neque per se corpore, noticed that an heir before entry neque per se animo. Nan autem ita cannot maintain an action of tres- accipiendum est, ut qui fundum pos- pass. So under the rule that for- sidere velit, omnes glebas circumam- merly required a title by descent bulet ; sed sufficit quamlibet partem to be traced from the person last ejus fundi introire." — Ff. 41, 2, 3. — seised of the inheritance, the heir And again: " traditionibus dominia was incapable, before entry, of being rerum, non nudis pactis, transferun- made the root of descent, vide sup. ).] Here, as they all hold pro indiviso or pro- miscuously, [it is necessary that they all mutually convey and assm'e to each other the several estates, which they are to take and enjoy separately (9').] By the common law, coparceners — who were compellable to' m^ke partition — might have made it by parol only, accompanied by Hyery ; but joint-tenants and tenants in common — who at common law were not so compellable — could not have made it other- wise^ than by deed; though (if perfected by li\cry) such deed did not require to be signed (r). However, it would seem that, by the Statute of Frauds, (29 Uar. 11. c^^,) an instrument in writing, signed by the party or his agent, is now necessary in ever}^ case of partition (s). And by the express proWsion of 8 & 9 Vict. c. 106, s. 3, partitions ^f all hereditaments (not being copyhold) shall be void at law, luiless made by deed (^). T he common law conveyances which have been h itherto considered, are all (it may be remarked) of a primary ^v o riginal character . Those which remain" are of a \second - Inclosure Acts; and that not only in common to a writ of partition,) in cases of inclosure, but even as did not affect the manner of con- regards lands not subject to be in- veyance when the partition was closed, or in respect of which no effected without writ, proceedings for inclosure are pend- (s) Co. Litt. by Harg. 169 a, n. ing. (See 8 & 9 Vict. c. 118, ss. 92, (4.) See, however, sup. p. 502, 147; 9 & 10 Vict. c. 70; 10 & 11 n. (;/). Vict. c. Ill ; 11 & 12 Vict. c. 99; (0 It is also provided by 8 & 9 12 & 13 Vict. c. 83 ; 14 & 1.5 Vict. Vict. c. 106, s. 4, that a partition c. 53 ; 15 Sc 16 Vict. c. 79 ; 17 & 18 of any tenements or hereditaments Vict. c. 97 ; 22 & 23 Vict. c. 43.) made by deed executed after 1st ( p) As to partition, see Co. Litt. October, 1845, shall not imply any 155 b. condition in law. Partitions as well (q) Vide sup. p. 344. as exchanges, may now be effected (r) 2 Bl. Com. 324. Blackstone under provisions specially devised adds that the statutes 31 Hen. 8, for that purpose in the General In- c, 1, and 32 Hen. 8, c. 22, (which closure Acts. See the Acts referred subjected joint tenants and tenants to, sup. p. 525, note(o). CHAP. XVII. — OF CONVEYANCES AT COINIIVION LAW. 527 [« r?/ 01- derivative sort, Avliicli presiT]3pose som e other con- v eyaiice ]n-ecedent ; and only sene to enlarge, confi mi, alter, rest rain, restore, or transfer the interest granted by s uch original conveyan ce.] As VI. A Release ; which may be defined as a conveyance of an idteiior interest in lands or tenements to a particular ^■ tenant, or of an undivided share therein to a co-tenant, (the ^, relessee being- in eitlier case in pmdty of estate with the /'-'"-^ * 7 "^ relessor,) — or of the right to such land or tenements, to a j» person wrongfidly in possession (u). It was always effected without livery of seisin, even though the interest conveyed wereTreeliold ; for the doctrine of release is founded on this principle, that though the freehold m possession could not pass at common law without hvery (which made a notoriety to the coimtry), yet where another person Avas al- ready in the possession, the reason and propriety of that ceremony failed ; and the grantor might consequently con- vey such right or interest as he had, by mere deed {x). A dee^, however, is essential to the efficacy of tliis convey- anceTy)7"and the proper operative word to be employed inTt^ is that of '' release (z):" yet it is to be observed, that the release of a right may not only be express, but may alsoTe implied by law from circumstances ; and when it_is of this kind, it may take place without deed (a). A release (in confOTmity_with^jyiejd^ enure in several ways. 1. [By wa^ of enlargin g an estate, or enlarger V estate,'] (m) As to releases, see Co. Litt. use of this word in reference to the 264 a. Some account of the early obligations of a deed. To which it state of the law respecting them will may be added that this is the tech- be found in Reeves's Hist. Eng. nical term employed in all cases Law, vol. iii. p. 354. where a renunciation of any right or (a-) 2 Bl. Com. 325; Gilb. Ten. claim is concerned; whether as re- 53. gards real estate or things personal, (y) Co. Litt. 264 b. or rights of action. (?) Vide sup. p. 507, as to the (a) Co. Litt. 264 b. 528 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. ■which is the species of release that most frequently occiu's ; and consists of a conveya nce of the nlterior interest to the partici3ai"tenant7"[as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee.] But to the validity of such r eleases as these, it is necessary that the estate of the relessee sho idd be a complete and vested one (<:/) , [ for if there be lessee fo r years, and, be fore he enters and is in possession, the less or releases to hi m all his right in the reversion, such relea se is void ; J and tliis because the les see has, in such case^ a mere interesse termini, and not an estate upon which a revers ion can properly be expectant( g). And fiu'ther [there must be a privity of estate between the relessor an d relessee ; tha t isrone of their estat es must be so related to the other as to make but one and the same estate at law :] as in the case where the ulterior estate convejed is a reversion or remain- der mediately or immediately expectant upon the particidar estate of the relessee ; all which, in contemplation of laAV, form parts of the same estate, as being derived at the same time, out of the same original seisin (/). Thus, if a man make a lease for years, wdth remainder for life, a release (d) Co.Litt. by Butl. 270 a, n.(.3). "no possession; and therefore a li'tlieestateof the relessee, therefore "release, which enures by way of is an estate in possession, he ought " enlarging an estate, cannot work to be in actual possession of the land " without a possession : for before (see Litt. ss. 455, 456, 459) ; for " possession, there is no reversion." otherwise his estate is incomplete. (Co. Litt. 270 a;. It is to be observed, But otherwise actual possession of however, that if the estate for years the land is not necessary : for " if a be created by a conveyance under " man make a lease for years, with the Statute of Uses, and not at " remainder for years, and the first common law, no actual entry is ne- •' lessee doth enter, a release to him cessary to give effect to the release. " in the remainder for years is good The reason of this will appear when " to enlarge his estate." — Co. Litt. we treat of conveyances of that 270 a, 270 b. class. (e) "Before entry," says Lord (/ ) See 2 Prest. Conv. 324; 2 Coke, " the lessee has bui interesse Bl. Com. 325 ; Gilb. Ten. 70, 71 ; " termini, an interest of a terra and Goodright V.Forrester, 1 Taunt. 602. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 529 bj the lessor to tlie lessee for years, and to his heii-s, is good ; for that he hath both a privity and an estate : and a release to him in the remainder for life, and his heirs, is good also(^). But if A. makes a lease to B. for life, and B. makes a lease for years ; and afterwards A. releases to the tenant for years, and his heirs, this release is void to enlarge the estate, because there is no privity between A. and tlie lessee for years (h). Upon the same principle a rel ease to a tenant at will, is good , because he has a suffi- ci ent estate for the pm^pose, and a pri^dty with the lessor ; but a release to a tenant at sufferance is void, because he has a possession without pri^^ty (i). 2. A release may enure [by way of passing an estate, or mitter V estate; as where one of two coparceners releases all her right to the other^ this passeth the fee simple of the whole (^).] But in this species of release, as well as the former, there must be a privity of estate between the relessor and relessee (Z) ; and therefore one tenant in common cannot release to his com panion, because they have distinct freeholds, and ther e is no necessary unity o f title between the m {m). 3. It may enm"e [by way of passing a right, or mitter le droit ; as if a man be disseised, and releaseth to his disseisor all his right ; hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that la^vfid Avhicli Ijcfore was tortious or wrongful (w). 4. By_way_of extinguishment ; as if my tenant for life makes a lease to T) A. for life, remainder to B. and his heirs, and I release to ' A.]~this extinguishes my right to the reversion, and shaU eniifento the advantage of B.'s remainder as well as of A.'s particidar estate (o). 5. By way of entry and feoff- ment; as ifjhere be two joint disseisors, and the disseisee {g) Co. Litt. 273 a. {I) 2 Bl. Com. 325 ; Co. Litt. {h) Ibid, 272 b. 273 b. (i) Co. Litt. 270 b. As to te- (to) Co. Litt. 200 b ; Gilb. Ten. nants by suflerance, vide sup. p. 74 ; vide sup. p. 356. 299. in) Litt. s. 466. (/(•) Co. Litt. 273. (o) Ibid. s. 470. VOL. I. 31 M 530 BK.II. OF RIGHTS OFrROrEItTY.-^PT.I. THINGS REAL. [releases to one of them, he shall be sole seised, and shall keep out his former coinpanion ; A vhicli i s the same in effect as if the disseisee had entered, and thereby jrut an end to the disseisin, and aftei'^^ards had enfeoffed one of the disseisors in ^e(j9).] And here we may obsen^e , mt h respect to the four last species of release, th at the fee may be conveyed by them all, without the use of word s of in- heritance (^): in which respect therv^ differ fi-om releases to enlarge the estate: and indeed from feoffments also, and from grants ; for as to all these, it is a general ride (though subject to exception in particular cases) that ^n estate_of inlieritance cannot be created without the word heirs (r). VII. [A Confirmation is of a natvu-e nearly allied to a release (s). Sir Edward Coke(^) defines it to be a convey- ance of an estate or right in esse^ whereby a voidable estate is made stu-e and imavoidable, or whereby a par- ticular estate Ts increased; and the words of making; it are these, "have given, granted, ratified, approved, and confii-med" {u). An Instance of the first branch of the definition is, i f tenant for hfe leaseth for fortv years, an d dieth dimng that term ; here the le ase for years is void- able by him in reversion: yet if he hath confirmed the estate of the lessee for years, before the death of tenan t for l ife, i t is no lon ger voidable bvit sm-e (x). The latter branch, or that which tends to the increase of a paiiicidar estate, is the same in all respects A^'ith that species of release which operates by way of enlargement.] It is to be ob- served that a confirmation (like a release, and for the same reason,) has always been effectual Avithout liveiy of seisin, even though a fi-eehold estate be the subject (?/). Moreover (/)) Co. Litt. 278 a. (/) Co Litt. 295 b. {q) Ibid. 9 b. (ei) Litt. ss. 515, 531. As to con- (r) Litt. s. 1 ; Co. Litt. 8 b ; vide firmations, see also Reeves's Hist, sup. p. 242. iiiig- Law, vol. iii. pp. 354, 355. (s) As to confirmations, see Co. (x) Litt. s. 5U). Litt. 295 b, 308 b. {ij) 2 Bl. Com, 326. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 531 a deed is essential to the validity of a conveyance of this kind(£]_;_tliough there may be a con firmation implied hy law from circumstaiices, as well 3s a confirmation bj deed {a). VIII. [A SniTender, {sursum redditio, or rendering up) is of a natiu'e directly opposite to a release ; for as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater (5). It is defined as a }delding up of an estate for life or years to him that hath an immediate reversion or remainder ; wherein the particular estate may merge or drown, by mutual agree- ment between them (c). ] And accordingly it is held, that the surrenderee must have such an estate, that the estate sur- rendered may be capable of merging in it; [so that ten ant for life cannot siu'render to him in remainder for years (c?).] A surrender [is done by these words, " hath siuTendered, " granted, and yielded up,"] or the like [e). And though the estate surrendered be for life there was not, at common law, any occasion for livery of seisin (f ) ; [for there is a pri\4ty of estate between the sun-enderor and the sur- renderee ; the one's particular estate and the other's re- mainder are one and the same estate ; and hvery having been once made at the creation of it, there is no necessity for having it afterwards.] Nor was either deed or other writing required to effect the surrender of land ( (/). But by the Statute of Frauds, (29 Car. II. c. 3,) s. 3, no lease (ex- cept of copyhold) shall be surrendered unless by operation of {z) Shep. Touch, by Preston, vol. 7 Bing-. 757. ii. p. 312. (d) Perk. s. 589. (a) See Co. Litt. 295 b ; Doe v. (e) 2 Roll. Ab. 497. Jenkins, 5 Bing. 469; Jenkins v. (/) See Farmer v. Rogers, 2 Church, Cowp. 482 ; Ludford i;. Bar- Wils. 26; Co. Litt. 338 a; Shep. ber, 1 T. R. 86 ; Doe v. Archer, 1 Touch. 307 ; Sleigh v. Bateman, Bos. & Pul. 531. Cro. Eliz. 487. (6) As to surrender, see Co. Litt. (g) Co. Litt. 338 a ; Shep. Touch. 373 b. 307. (c) Ibid. 337 b; Burton?;. Barday, M M 2 ? 532 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. law — for a siu'render, lilvc a confirmation, may be implied by- law from circumstances (A), — or unlessby deed or note in writing, signed by the party or his agent lawfully au- thorized by writing (i). And now by the statute 8 & 9 Vict. c. 106, (s. 3,) a siuTender in wi-iting of an interest in anjT tenement or hereditament, — not being a copyhold interest, and not being an interest Avhich might by law have been created wdthout ^\Tnting, — made after the l.st October, 1845, shall be void at law unless made by deed. It is laid do^^^l that, upon a sur render, no entiy is req uired t o complete the title of the surrenderee, except for th e purpose of bringing an action for any tre spass committ ed ; so that if a tenant for life or years surrender at a place off the land, to hini in reversion, and the latter agree to it, he has the land in him without fiu-ther ceremony (A). As to the effect of this conveyance, we may also remark that if a lessee for life or years make a lease for years, re- serving rent, and then surrender his estate to him in rever- sion, the estate for years made out of the estate so sur- rendered A^dll continue notwithstanding the siuTcnder ; but the imder-tenant, at common law, was held discharged (in general) from the rent and other covenants of such under lease : for the reversionary estate to which they were an- nexed has ceased to exist (Z). And hence in the case of reneicahle leases, it was in the power of such under lessees (by reusing to suiTender notwithstanding they had cove- (h) Sliep. Touch. 301; Bac. Ab. surrender; (Doe t). Thomas, 9 Barn. Leases (S.) 3. See also as to sur- & Cress. 288;) but may, under par- renders in law, Davison v. Stanley, ticular circumstances, be evidence of 4 Burr. 2210 ; Phipps v. Sculthorpe, one. (Walker v. Richardson, 2 Mee. 1 Barn. & Aid. 50 ; Dodd v. Ack- &W.882.) As to the effect of such lom, 6 Man. & G. 672. And the cancellation, see also Lord Ward v. cases cited in the judgment in Lumley, 5 H. & N. 87, Q5Q. Nickells v. Atherstone, 10 Q. B- (A-) Shep. Touchstone, 307, 308 ; 944. Tliorapson v. Leach, 2 VenL 198. (i) See Roe v. Archbishop of {I) Lord Treasurer r. Barton, York, 6 East, 86; Gore v. Wright, Moore, 94; Webb v. Russell, 3 SAd. &E1. 118. A mere cancella- T. R. 402. tion of the lease is, of itself, no CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 533 iianted to do so), greatlj to prejudice their immediate land- lords'," the first lessees. But now by the statute 4 Geo. II. c. 28, it is provided in the particular case of a lease sur- rendered for the purpose of renewal, that the new lessee shall (without a surrender of the under-lease) have the like remedy as to the rent and covenants, and the under-lessee shall hold, as if the original lease had been kept on foot ; and the chief landlord shall have the like remedy, by dis- tress or entry on the lands and hereditaments comprised in such under-lease, for the rents and duties reserved by the new lease, (so far as they exceed not those reserved by the original lease,) as he would have had if such original lease had been kept on foot(?^). And by 8 & 9 Vict. c. 106, (s. 9,) it is provided more generally, that when the reversion ex- pectant on a lease (made either before or after the passing of that Act~oFany tenements or hereditaments of any teniu*e) shall, after the 1st October, 1845, be surrendered or merge, the estate^ which shall, for the time being, confer as against the tenant mider the same lease, the next vested right to the same tenements or hereditaments, shall, (to the extent and for^fhe purpose of preserving such incidents to, and obliga- tions on, the same reversion, as but for the surrender or merger thereof, woidd have subsisted,) be deemed the re- version expectant on the same lease. IX. An Assignment of land or real estate is properl y a transfer, or making o ver to another, of a person's whole in - terest therein, whatev er that interest mav be ; but it is mor e particularly a]0]3lied t o ex]3ress the transfer of an estate f or hfe or vears. And an assignment for life or years differs from a lease only in this, that by a lease a man grants an interest less than his o^\ti, reserving to himself a reversion ; by an assignment, he parts with the whole property, and the assignee consequently stands in the place of the (n) See Doe v. Marchetti, 1 B. & of crown lands, see 8 & 9 Vict. c. 99, Ad. 715. As to the renewal of leases s. 7. 534 BK. II. OF RIGHTS Or PROrERTY. — FT. I. THINGS REAL. assignor (o). Tims wHere a lease is assigned, the assignee becomes liable to the landlord or reversioner, for the fixture performance of tlie covenants made by the lessee : and_he remains so, until the assignee assigns over in his tura_to another person (p). And this liability attaches to him everTwithout entry (^). Y et he is not liable by force a^ the assignment, except on such covenants as run with the l ancfl r), — a term that has been explained in a former chapter (s). And, on the other hand, he is entitled, diu'ing the same period, to enforce against the reversioner any covenants nmning vnth. the land, which the kasc con- tains in favour of the lessee ; and in case the reversioner conveys his interest to another, then to enforce them also for the ftitm-e against the grantee of the reversion (t). It is to be observed, however, that if the transfer of the term be for a single day short of the residue of the term, no habihty or claim on the original covenants can arise between these parties: for it is then an under-lease and no assignment ; and the alienee not coming precisely into the place of the ahenor, is in no privity -with the rever- sioner (m). No deed or other writing was necessary, at common law, to tEe vahdity of an assignment (x) ; though in the case of a lease for life, it could not be effected mthout livery of seisin (y); but now by the Statute of Frauds, (29 Car. II. c. 3,) the same provision as to the necessity of a deed or -written instriunent is made, with respect to an assignment, as before mentioned in the case (o) 2 Bl. Com. 326. N. C. 411. ( p) Taylor v. Shum, 1 B. & Pul. (5) Vide sup. p. 498. 21 ; Harley v. King, 2 C. M. & R. (0 32 Hen. 8, c. 34 ; Thursby v. 18 ; 1 Gale, 100 ; Wolveridge v. Plant, 1 Saund. by Wms. 230 b ; Steward, 3 Tyr. 637. The original Wright v. Burroughes, 3 C. B. 685. lessee, however, is not discharged (u) Holford a;. Hatch, Doug. 182 ; from liability by an assignment over, Baker v. Gostling, 1 Bing. N. C. 19. but remains liable on his covenants; (x) Noke v. Awder, Cro. Eliz. (Barnard v. Godscall, Cro. Jac. 309.) 373, 436 ; Moore, 419, S. C. (5')\Villiamsv.Bosanquet, 1 Brod. (y) Earl of Derby v. Taylor, 1 cSj Bing. 248. East, 502. (r) Wliitton v. Peacock, 2 Bing. y u^^ CHAP. XVII. — OF CONVEYANCES AT COIVIMON LAW. 535 of a surrender. And by 8 & 9 Vict. c. 106, s. 3, an assign- menToFircIiatteTlnterest, not being copyhold, in any tene- ments or hereditaments shall be void at law, unless made by deed ; Avliile on the other hand, by the effect of the same statute, sect. 2, an assignment even of a lease for life may now be effected by deed of grant without hvery of seisin. The operative words in an assignment are " as- sign, transfer, and set over ;" but it may be effected by any words sufficient to express the intention (2^). X. [A Defeasance is a collateral deed, made at the same time with a feofFnicnt or other conveyance, contain - mg certain conditions, upon the perfonnance of Avhich the es tate then created may be defeated, or totally imdone (a). A nd in this man ner mortgages were in former times usually made ; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffinent Avas rendered void on repayment of the money ^ boiTOwed at a certain day. And this, when executed at the same time Avith the original feoffment, Avas considered as part of it~by the antient law : and on that accoimt only, in- dulged (Z*).] For a con Abeyance of the freehold, at com mon law, cannot be defeated or recalled by a deed executed afler- w ards ; and if such coiiA^eyance Avere to contain a proviso t hat it shall Ijc lawfrdforthe grantor by s ubsequent act to revoke the same, the proAiso AA^ ould be void f or repu g- nance (c). [" But things that Avere merely executoty, or t o (z) Parminteri). Webber, 8 Taunt. As to a defeasance, see Co. Litt. 593. As to an agreement to assign, 236 b. not amounting to an assignment, see (&) Co. Litt. 236. Hartshorn v. Watson, 5 Bing. N. C. (c) Co. Litt. 237 a. But if there 477. A transaction which would be be a conveyance under the Statute of void as an assignment may still be Uses with a proviso that the gvantor held valid as an under-lease, if the shall have power to revoke the uses, intention of the parties can be so " this proviso being coupled with a effected. See Poulteney 1'. Holmes, " use is allowed to be good, and not 1 Stra. 405; Pollock v. Stracy, 16 "repugnant to the former estates." Law Journ. (Q. B.) 132. —Ibid. This subject will be noticed (a) The term is derived from tlie in the next chapter. French verb, dcfait e, iiifcclum rcddcre. <-**< 536 BK. II. OF KIGIITS OF PROPERTY. — PT. I. THINGS REAL. [be completed by matter subsequent, — as rents, of which no seism could be had till tlie time of jiaynicnt, and so also annmties, conditions, AvaiTantics, and the like, — were al- Avays hable to be recalled by defeasances made suljsequent to the time of their creation (e). J Defeasances of land ar e now of rare occuiTence(y): the practice in mode rn tim es being to include, in the same deed, both the conveyance of the land to the alienee, and the conditio ns (if any) to whi ch it is to be subject, and by which its effect may be defeated . (e) Co. Litt. 237 a. If a thing, Purchase, Lord Talbot said " he however, which is executory in its " should always discourage the prac- commencement be afterwards exe- " tiee of drawing an absolute deed cuted, it cannot be defeated by a " and making a defeasance, as it subsequent defeasance ; Co, Litt. by "wore the face of fraud." (Ca. Butler, 237 a, n. (1). temp. Talbot, 61, 64.) (/) In the case of Cotterill v. ( 537 ) CHAPTER XVIII. OF CONVEYANCES UNDER THE STATUTE OF USES. The subject of common law conveyances having now suffi- ciently engaged om" attention, we are next to examine those which derive their force from the statute law ; among which, the first place is due to conveyances founded on the Statute of Us es. It is evident fi'om what was said in a former chapter, that this statute entirely failed to accomphsh the object con- templated by its provisions (a). For instead of extinguish- ing equitable ownerships, it made only a sHght alteration in the formal words by which they might be constituted, and changed their name to that of trusts — under which they took root more firmly, and flourished in greater vigour than before. But while the statute thus missed its mark, it led to accidental resvdts of a most important character, the nature of which we shall here proceed to explain. The methods employed for creating or raising uses at the period when the statute passed, were principally three ; \dz. feoffinent, covenant to stand seised to uses, and bargain and sale {h). The first transferred the legal estate in the manner already explained when we treated of common law conveyances; and it was apphed to the purpose now in question, by declaring in the deed of feoffment, or some other collateral instrument (c), to whose use the feoffee was (a) Vide sup. pp. 360, 375. (c) 1 Sand. Us. 172, 173 ; Sugd. (6) Reeves's Hist. Eng. Law, vol. Gilb. Introd. xlii. iv. p. 161—163. 538 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. to hold, and defining tlie estate or interest forjvvhicli such use was to subsist. The two last emanated ^^om that doc- trine of the coiu'ts of eqiiitj formerly noticed (c?), that the o^Tier of land who covenanted to stand seised of it to the use of some near relative, or who entered into a bargain an^ sale of it for pecuniary consideration, — was thence- forward to be considered as holding it to the use^f such covenantee or bargainee respectively. As soon as this doctrine was established, the object of putting land into use was accomphshed with the greatest facihty, by the mere execution on the part of the owner of a deed of covenant to stand seised ; or of an instrument of bargain and sale ; for such estate as therein mentioned, to the in- tended cestui que use: because a use conformable to that estate immediately arose in his favour (e). And though the original o-mier continued seised (there being no transfer of the legal estate), his ownership became nommal only, for he held subject to the use. In^these two latter modes, therefore, as well as by feoffment, it had become the com- mon practice to raise uses before the statute passed. After that event, it became ob^dous that uses had now become capable of being tm-ned to a new purpose (though one that had not been designed by the legislatm-e), ^-iz. the conveyance of the legal estate upon a principle unknown to the common law. For we may remember that by the effect of the statute, whenever there is a seisin to a use, that use is executed, or (in other words) transmuted into equi- valent legal estate (/). A party, therefore, who desu-ed to ahene his land after the passing of this Act, had only to create (by Avhatever means) a seisin to the use of the pro- posed alienee, for such interest as intended (^); and a legal estate of the same description was then transfen-ed to liim by force of the statute, as effectually as if it had been con- veyed by one of the ordinary methods of the common law. {d) Vide sup. p. 365. (/) Vide sup. p. 364. (e) 1 Sand. Us. 172 ; Fox's case, (g) \ Cruise, Dig. 440, 8 Rep. 941, n. C. XVIII. — or CONVEYANCES UNDER STATUTE OF USES. 539 It was also ol:)vious that this new principle of conveyance presented parties with the means of escaping from any of the restrictions of the common law, with respect to the modification of estates ; for uses (as we have seen) might be limited with greater fi-eedom than the land itself (A) ; and as by a covenant to stand seised, or a bargain and sale, a seisin to uses might be created Avithout any solem- nity beyond the simple execution of a secret deed, — any per- sons, who were desirous to avoid the pubHcity and other inconveniences, connected with livery of seisin, might effect the purpose with ease, by resorting to one of these methods, and making it a medium for the operation of the new prin- ciple (i). Under these circimastances it naturally happened that the same three methods which, before the statute, had been ordinarily employed to raise uses, now began to be employed as modes of transferring the legal estate for the benefit of the transferee ; and in connection with this, they were also made, as often as occasion required, to fulfil their former office of creating equitable interests. And to effect this nothing more is necessary than to insert in them a limitation of one use upon another, in the manner described in the chapter on Uses and Trusts (A); for while the use is executed by the statute, and becomes legal estate, the second retains, under the name of tmst, the equitable character designed. Such is the principle of conveyances imder the Statute of Uses, considered as a class. They comprise not only the feoffiiient to uses, the covenant to stand seised, and the bargain and sale, but that species called a lease and re- lease, (added to their number soon after the statute passed,) and a fifth, now recently introduced, which may be denomi- nated a grant to uses. And this last, as we shall have oc- casion presently to explain, has nearly superseded all the rest, in the practice of conveyancing. Yet as some ac- quaintance -wTith the foiu" former will continue to be of (70 Vide sup. p. 368. {Ic) Vide sup. p. 373. (i) 2 Sand, Us. 40 ; 2 Bl. Com. 337. -A*, i'i-t-rf 540 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. importance, so far as tlie investigation of antient titles to land, and the history of the law in general is concerned, it "will be necessary here to examine, individually and in detail, the whole that have just been enumerated. And we vnR begin mth — I. A Feoffment to Uses (l). This is the ordinary con- veyance of the common lavv, of Avhich the natiu'e was explained in the last chapter, but with a limitation to uses superadded {m). Thus if A. be desirous to convey to B. in fee, he may do so by enfeoffing a third person, C. (of course with livery of seisin), to hold to him and his heirs to the use of B. and his heirs ; the effect of which will be to convey the legal estate in fee simple to B. For the legal estate passes to the feoflPee by means of the livery, in like manner as it would have done before the statute ; but no sooner has this taken place, than the Kmitation to uses begins to operate, and C. thereby becomes seised to the use defined or limited ; the consequence of which is, that, by force of the statute, the legal estate is eo instanti taken out of him, and vests in B., for the like interest as was limited in the use, that is, in fee simple. B. thus becomes the legal tenant as effectually as if the feoffinent had been made to himself, and without the intervention of a trustee. This method, however, involving as it does the necessity of making livery of seisin, has not been of frequent occur- rence ia modern ]3ractice {n). II. A Covenant to stand seised to Uses (o). This is a conveyance adapted to the case where a person seised of land in possession, vested remainder, or reversion (p), proposes to convey his estate to his wife, child, or kins- (0 See 1 Sand. Us. 173; 2 Sand. of 8 & 9 Vict. c. 106, s. 4, depriving Us. 13. a feoifment of all tortious operation, (m) Vide sup. p. 512. (o) See Roe v. Tranmaer, Willes, (;») 2 Sand. Us. 13. It is likely 682; Doe v. Davies, 2 Mee. & W. now to be absolutely laid aside, in 503. consequence of the recent provision (p) 2 Sand. Us. 34, 94. C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 541 man {q). In its terms, it consists of a covenant by the alienor to stand seised to the use of the intended party. Before the Statute of Uses, this would merely have raised a use in favoiu* of such party ; but now the legal es- tate "^ill be transferred to him ; for, the covenantor being by the effect of his covenant seised to the use of the co- venantee, the statute will immediately execute that use. Before the statute, however, no use would be raised in contemplation of equity, upon a mere contract, unless that contract were foimded on proper consideration (r) ; which when that of natural affection,hi'o\ig\it the conveyance under the description of a covenant to stand seised (s). As a con- sequence fl'om this, the modem conveyance in question is also held to be ineffectual, luiless it is to operate between persons standing in some relation to each other, in which natui-al affection may be presumed to influence the gift ; namely, the relation of marriage or of near consanguinity ; for there is, otherwise, no use for the statute to take effect upon (t). It is on accoimt of inconveniences connected with this principle, and for other reasons, now wholly laid aside (m). III. A Bargain and Sale. This is a conveyance adapted to the case where a person seised of land in possession, vested remainder, or reversion, proposes to convey it to some other person. In its terais, it consists of a bargain and sale by the ahenor, to the intended alienee, for money ; and at common law such bargain and sale might be a verbal one merely. By the effect of this contract, the former becomes (9) 2 Bl. Com. 338. (0 2 Sand. Us. 94. ; Sharrington (r) Reeves's Hist. Eng. Law, vol. v. Stratton, Plowd. 300. iv. p. 162. («) 2 Fonb. Tr. Eq. 25 ; 2 Bl. (s) 2 Sand. Us. 90. But a use Com. 338 ; 2 Sand. Us.91 ; 2 Saund. might be raised on a. feoffment with- by Wms. 97 a, n. (b). See Doe d. out consideration. (Sugd. Gilb. 90 Starling v. Prince, 10 L. J. (C. P). 91.) 223. 542bK.II. of rights of PROrERXY. — PT.I. THINGS REAL. seised to the use of the latter, in fee, or tail, for life, or years, (according to the natiu-e of the limitation); and this before the statute was the whole effect of the instrument; but now the statute will execute that use, and clothe the latter with a commensiu'ate legal estate. But as it is es- sential to the efficacy of a covenant to stand seised, that it should be made in consideration of natural affection, so, for the hke reason, it is requisite in the case of a bargain and sale, that it should~be founded on pecuniary consideration ; for otherv\'ise no use would be raised, and there would be nothing for the statute to operate upon. With respect to this conveyance, it is to be observed, that it possessed in a pecidiar degree the recommendation to which we before adverted, of enabling parties to transfer a freehold without livery of seisin. For the covenant to stand seised could be rarely made available to the piu^DOse, as it operated only between persons standing in particular relations to each other; but in the extensive class of con- veyances which take place between seller and purchaser, a bargain and sale afforded the ready means of dispensing wdth livery of seisin and attornment ; and by the insertion into the deed of a small sum of money, as the nominal con- sideration of a transfer, it was easy, even when the trans- action was not really of the pecuniaiy kind, to obtain the benefit of the same mode of conveyance (s'). And not only the freehold in possession might be thus conveyed Avithout livery, but a remainder or reversion might also pass by the same method (as indeed it might also by covenant to stand seised), mthout attornment (a). But secret transfers of land Avere strongly opposed (for reasons before sufficiently explained) to the antient poHcy of the law. As soon there- fore as the legislature perceived that these might be accom- phshed with facihty, by means of a bargain and sale, it (2) 2 Sand. Us. 41. 5 T. R. 124. As to attornment, vide (a) 2 Sand. Us. 40 ; 1 Saund. by sup. p. 472. Wms. 234 b, n. (4) ; Sbove v. Pincke, C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 543 hastened to provide a remedy; and that devised for the purpose was, to connect with this new conveyance a new ceremony, calculated to ensure pubHcity, and to operate as a permanent memorial of the transaction (b). It was ac- cordingly enacted by statute 27 Hen. VIII. c. 16 (called the Statute of Inrolments), that no bargain and sale shall enure to pass a freehold, imless the same be by deed in- dented, and enrolled within six months after its date, in one of the courts of Westminster Hall or with the custvs rotuTorum of the county (c). A bargain and sale, it is to be observed (and the remark is equally apphcable to a covenant to stand seised), is also capable of conferring a complete estate for years, without entry ; a property that belongs not to a conveyance at common law : for a lease for years gives (as formerly shewn) no complete estate imtil entry has been made {d) ; \ but if a man seised of land, bargain and seU it for a term of years, the use thus raised will be executed and become a complete estate for years, by force of the statute, T\athout any additional ceremony (e) ; upon the same principle that a bargain and sale for a freehold interest will enure to pass a freehold, "sritholit livery of seisin (f). And though the Statute of Inrolments j)rovides compensation for the ten- dency ofjbargains and sales to dispense "with Hvery in fi'eehold conveyances, it makes no similar provision to guard against their effect in convejdng a term of years without entry ; for these chattel interests were of a very precarious nature till about six years before the statute passed, and were not thought of sufficient importance to (6) 2 Sand. Us. 43, 44, 51 ; Bac. (e) It should be observed, how- Use of Law ; 2 Bl. Com. 338. ever, that even in cases to which the (c) 2 Sand. Us. 41. Heredita- Statute of Inrolments does nol ap- ments lying within any city or town ply, the bargain and sale was re- corporate, the officers of which have quired under the Statute of Frauds authority to make inrolment of deeds, (29 Car. 2, c. 3) to be in writing; and are excepted from this statute. (2 by 8 & 9 Vict. c. 106, to be by deed. Sand. Us. 66.) (/) Barker v. Keate, 2 Mod. 249 ; {d) Vide sup. p. 293. Mallory's case, 5 Rep. 113. 544 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. be included in its enactment (/). A bargain and sale for term of years vnW therefore be effectual Avitliout inrol- rrient (g) ; and dijffers, in this respect, from a bargain and sale for an estate of freehold. It is material to observe, that no particular form of words is essential to the efficacy either of a bargain and sale or a covenant to stand seised (A). " Bargain and sell" are the words of transfer ordinarily used in the one case, and " covenant to stand seised" in the other. But other words vnU have the same effect (e) ; and the distinctive character of each of these conveyances is determined by the consideration on which it is foimded {k). "Where the use is raised upon a pecuniary consideration, the convey- ance will be good as a bargain and sale, whatever the terms used : where on the consideration of natiu'al affec- tion, it will avail as a covenant to stand seised (l). If the words employed, however, are such as to indicate that there is no intention of conveying by the instrument in which they are contained; for example, if they amount merely to an engagement to convey by a fixture instrument ; no use will arise, and no estate consequently will pass {m). The rule, which requires a bargain and sale to be fovmded on pecuniary consideration, is held to be matter of form only, and sufficiently complied A\dth if the conveyance pur- porf to be so foimded ; and for this purpose any triyial_sum may be inserted, though the consideration which really passes between the parties be of larger amoimt, or even though it be in fact not of a pecuniary nature (n). It is also immaterial whether the sum so inserted be actually paid or not (o). IV. A Lease and Release. Thejconyeyance so de- (/) 2 Bl. Com. 338. (/; 2 Sand. Us. 90 ; 2 Saund. by (g) Ibid. Wms. 96 b, n. (1), n. (2). (A) 2 Sand. Us. 56, 90; Doer. (m) 1 Saund. Us. 118, 120. Davies, 2 Mee. & W. 503. (n) 2 Sand. Us. 54. (i) 2 Sand. Us. 90. (o) Sugd. Gilb. 96. {k) 2 Fonb. Tr. Eq. 47. C. XVIII. — OF COXVEYAXCES UXDER STATUTE OF USES. 545 scribed is of a compoiind description, consisting of two separate parts ; first, a bargain and sale ; secondly, a com- mon law conveyance of release : and, (lite the bargain and sale,) it is adapted to the case where a person seised of land in possession, vested remainder, or reversion, proposes to convey his interest to another. A conveyance of the same denomination was among those which obtained occasionally at the common law (p), and was omitted in our former enumeration of them only because it has long fallen into complete disuse. Its prin- ciple (which is material to oiu' present piu^ose) was as fol- lows : — A party desiring to convey in fee, would first make to the proposed alienee, a demise or lease ; for example, for one year, w^hich, if perfected by his actual entiy, would confer upon him a complete estate of leasehold {q). He would then be capable of receiving a release of the rever- sion, for he would be tenant of the partictdar estate on which that reversion was expectant (r) ; and the next step therefore woidd be to execute a release of the land to him and his heirs : so that, by the conjoint operation of the two conveyances, he would become, without hvery of seisin, tenantjn fee in possession. When the Statute of Inrol- ments had rendered it impossible to effect a secret and summary conveyance of the freehold, by the method of bargain and sale (5), the practitioners of the day were left to explore new means of attaining that favourite object ; and they accordingly invented for the purpose, a new convey- ance under the Statute of Uses ; the hint of which was supplied by this common lawexpedlent of lease and re- lease (t). Instead of a lease or demise, the conveying party was made to execute a bargain and sale for some leasehold interest, for example, for the term of one year. This, mth- (p) 2 Sand. Us. 70, where it is (r) Vide sup. p. 328. said not to have been frequent. See (s) Vide sup. p. 543. Reeves's Hist. Eng. Law, vol. iii. (<) 2 Sand. Us. 71 ; 2 Prest. Conv. p. 357; vol. iv. p. 356. 219. {q) 2 Bl. Com. 144. VOL. I. N N 546 BK. II. OF RIGHTS OF PROPERTY. — FT. I. THINGS REAL. out any inrolment, passed tlic legal estate for a year to the bargainee, (the Statute of Inrolments extending to free- holds only,) and the estate so transferred was complete (as we have seen) \\4thout actual entry (^u). The transferee therefore was capable of receiving a release of the fr'eehold and reversion (a:) ; which release was accordingly granted to him on the next day (y). This compound conveyance — which is said to have been invented by Serjeant Moore soon after the Statute of Uses(^) — was called, like its common laAV prototjq^e, a lease and release ; though, pro- perly speaking, it is rather a bargain and sale with release. As it was competent to pass the fr'eehold without livery of seisin, entry, or inrolment, or any other ceremony than the execution of the deeds themselves (a), and was in some other technical points more advantageous than a bargain and sale {b),it soon grew into famihar use ; and became so generally established as almost entirely to supersede every other method of confeiTing a fr-eehold estate, whether at common law, or under the Statute of Uses. It is almost superfluous to add, that its legal validity became also, in progress of time, too firmly settled to be shaken, though great lawyers have formerly entertained doubts on that subject (c). On the release, some use was ordinarily engrafted. If it was one to the relessee himself in fee, he took the legal estate as at common law (d) ; for this is not such a use as the statute executes (e) ; but if the use were declared to a thii-d person, it would be executed by the statute, and the legal estate in the fr-eehold conveyed would pass accord- ingly to him. The lease (or bargain and sale) and the release, in prac- (m) Vide sup. p. 543. See 2 Sand. Hist. Eiig. Law, vol. iv. p. 355. Us. 71. (a) 2 Sand. Us. 72. (at) 2 Sand. Us. 71 ; 2 Prest. Conv. (b) Ibid. 60. 219. (c) 2 Bl. Com. 339. (y) Ibid. (d) 2 Sand. Us. 72. (s) 2 Bl. Com. 338 ; Reeves's (e) Vide sup. p. 372. 0. XVIII. — OF COXVEYANX'ES UNDER STATUTE OF USES. 547 tice, used always to constitute separate deeds, tlie former bearing date the day before the latter ; but if compris ed in th e same deed, they were understood to be ecjually effec - tual ( f). And by 4 & 5 Vict. c. 21, intituled " An Act " for rendering a release as effectual for the conveyance " of freehold estates as ajease and release by the same " parties," every instniment pm-porting to be a release of a freehold estate (g), and expressed to be made in pursu- ance of that Act, shall he as effectual for all purposes as if a bargain and sale (or lease) for a year had been executed, although such bargain and sale (or lease) shall not in fact have been executed. V. A Grant to Uses. Though we have not thought ourselves at Hberty to dispense with the foraier learning relative to the lease and release, so lately the piincipal con- veyance in oiu" law, and to the other methods before enu- merated in tlais chapter, these now rarely find a place in practice ; for by the obvious effect of that most important provision of the 8 & 9 Vict. c. 106, s. 2, to which we fonnerly had occasion to refer, — abolishing the antient maxim that corporeal hereditaments he in livery only and not in grant, by enacting that they " shall, as regards the " conveyance of the immediate fi-eehold thereof, be deemed " to Tie in grant as well as in livery," — all conveyances of hereditaments, (whether corporeal or incorporeal, or in possession or expectancy, and whether for an estate of freehold or for an inferior estate,) may now be brought within the range of that common law conveyance discussed in the last chapter under the head of grant ; though, in its antient and proper apphcation, that conveyance Avas con- fined (as we have seen) to the transfer of incorporeal here- (/) Sugd. Gilb. 229, (n.) and sale (or lease) for a year, as well (g) For the purposes of this statute, as a release, would have been used the word freeJwld is defined to extend if the Act had not been passed. (4 & to all lands and hereditaments, for 5 Vict. c. 21, s. 3.) the conveyance of which a bargain N N 2 548 BK. II. OF EIGHTS OF PROrEUTY. — FT. I. THINGS REAL. ditaments and estates In expectancy : and tliis being the case, a grant has, in fact, supplanted, generally spealvlng,^ll these metliods, and become the almost universal expedient for "conveying real estate inter vivos. It Is to be observed, however, that it is the practice of conveyancers tq^ import iiito*a grant of corporeal hereditaments, limitations to uses, and that a conveyance so fi-amed, takes effect under the Statute of Uses ; for while the seisin to the use is created by force of the statute 8 & 9 Vict. c. 106, the use is con- verted into legal estate by force of 27 Hen. VIII. c. 10 (/i)- Having thus considered each of the different convey- ances under the Statute of Uses, it is now tinae to make some remarks applicable to those conveyances as a class. We may remark then, in the first place, that convey- ances to uses must of course comprise all the circum- stances necessary to biing the Statute of Uses into opera- tion. Some use therefore (either in esse or othel•^\^se) must be raised by tbem, and some sufficient seisin to s uch use must be constituted (i) ; or in the language of convey- ancers there must be a seisin proper to support or se7've the use (A). And from this necessity of a seisin to a use it follows, that an existing term of years cannot be trans- fen'ed by any method of conveyance depending on the Statute of Uses for its operation ; for of a mere chattel interest there can be no seisin : though the o^^Tier of the freehold may (as we have seen) convey It by these methods, for a term of years ; for he has a seisin out of which the use for the term may be served (Z). For the same reason it has also been supposed that a corporation aggregate cannot ahene land by a conveyance under the Statute of (h) It may be as well to remark, in its operative power by force of that there may also be a grant of land 8 & 9 Vict. c. 106, as already ex- containing 710 use; as if A. grant a plained, sup. p. 520. close directly to B. anc' his heirs. (j) Vide sup. p. 371. In such a case the conveyance takes (k) 2 Sand. Us. 59 ; 1 Sand. Us. effect, not under the Statute of Uses, 97, 133, 140. but as a common law grant extended (/) 2 Sand. Us. 59. C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 549 Uses (m) ; for, as formei'ly remarked, it was part of the antient doctrine with respect to uses, that such bodies as these could not be seised to any use but their own [n). When corporations aggregate, therefore, have occasion to make conveyances of their lands, the method adopted has com- monly been that of a feoffinent ; or a lease with actual entry, followed by a release (o). With respect, however, to the use which is requu-ed for the purpose of a conveyance xmder the statute, this may either be expressly declared, or implied by law. Thus, if A. conveys by feoffinent or lease and release to B. in fee, without consideration, and without declaiing any use, there will be a resultbig use, by construction of law, to himself the grantor ; which use the statute will execute accord- ingj^ (p). With respect to the limitation of estates by these methods of conveyance, it may be laid doAvn as a general proposition, that a hmitation of the legal estate by way of use,l8 governed by the same principles as apply to the creation of estates by a common law assm-ance {(f). Thus we have seen that the word heirs is necessary at common law, to create an estate of inheritance (r) ; and in hke manner, if a man bargains and sells to A., without adding and his heirs, A. has only an estate for hfe (s). So an estate may be limited by way of use (as well as in a common laAv conveyance) in possession, in remainder, or in reversion (^) ; and, if in remainder, must behmited to take effect in possession ' immediately on the determination of {m) 2 Sand. Us. 58 ; 4 Cru. Dig. construction, however, is in some 175 ; Sugd. Gilb. 7, (n.) cases allowed in a limitation to US€S, {ri) Vide sup. p. 366. than in a common law conveyance ; (o) 2 Sand. Us. 59 ; Sugd. Gilb. vide sup. pp. 528, n. (e), 535, n. {d). 7, n. (1). (r) Vide sup. p. 242; 2 Bl. Com. ip) Co. Litt. 271 b ; 1 Sand. Us. 109 ; Nevell v. Nevell, 1 Roll. Ab. 106, 109; Doe v. Rolfe, 3 Nev. & 837. Per. 648- Vide sup. p. 378. {$) 1 Sand. Us. 124. (?) 1 Sand. Us. 123, 124; Corbet's (/) Svigd. Gilb, Ivii. Iviii. case, 1 Rep. 87 b. A more liberal 550 BK.II. OF RIGHTS OF rKOPEKTY. — FT. I. THINGS REAL. the particular estate {u). So tlie remainder may be eitlicr vested or contingent (.r) ; and is subject (if contingent) to tlie "common law rule, that if it amount to freehold, it can- not be limited on a particular estate less than fl-eehold (y). Legal estates created by way of use are also subject, in general, to the same incidents as if created by the methods of the common law (z). Thus, Avliere a pailicidar estate was lunited by way of use, it was formerly_hable to forfeiture if the tenant made a feoffment for a larger^ estate thairins interest warranted ; and if a contingent remainder was limited by way of use, and the particular estate was destroyed before the contingency happened, the remainder was defeated (a). We have seen, however, that in both of these cases, the fonner law is now affected by the pro- A-isions of the recent statute 8 &; 9 Vict. c. 106(6). But Avhile a limitation by Avay of use, is thus in general subject to common law principles, there are some very material particidars, in which it has always been allowed a greater latitude (c). The natm-e of these may be ex- plained as folloAvs. 1. By the common law, a man coidd not in any case be a purchaier (that is, take an estate) by his own conveyance ; for Tie coidd not, in the natm-e of things, imite the opposite capacities of grantor and gi-antee (d). Thus A. seised in fee, could not convey to himself for life, remainder over to B. in fee ; nor to B. for life, remainder to himself, the (u) Sugd. Gilb. ib. 164 ; vide sup. " Nemo potest esse agens et pattens," p. 329. 2 Prest. Est. 20. As to personal {x) Sugd. Gilb. Iviii. 153, 164. property, (including chattels real,) a {y) Ibid. 161, 165; vide sup. p. recent statute has made the following 33i. provision, viz., that any person shall (z) 1 Sand. Us. 166. have power to assign personal pro- (a) Sugd. Gilb. 298. perty, now by law assignable, in- (6) Vide sup. pp. 332, 336, 338, eluding chattels real, directly to 339. himself and another person or other (c) 1 Sand. Us. 130. persons or corporations, by the like {(1) Per Hale, Pibus v. Mitford, nieans as he might assign the same 1 Vent. 378; Southcot v. Stowell, to another. (22 & 23 Vict. c. 35, s. 2 Mod. 210; 1 Sand. Us. 131, 132 ; 21.) C. XVIII. — OF CONVEYANCES UNDEK STATUTE OF USES. 551 grantor, iu fee. In tlie first case, the Avliole jconveyance would be void ; in the second, the remainder : A. in such case taking- no remainder, but continuing in the reversion, as of his former estate (e). And the distinction involved this practical difference, that the reversion, being the old estate, was in its descent confined to the blood of the same piu-chaser as before ; whereas if A. had taken (or in other words purchased) it as a remainder, it woidd (according to the general law of inheritance) have been descendible to his heirs general, whether his former title had been by purchase or descent (/). But indirectly, and through the medium of a limitation to uses, it has been always practicable for a man to become pui-cliaser by his own conveyance {g). Thus A. may by feofiuient, or lease and release, convey to a third person C, to the use of himself, the grantor, for life, with remainder to the use of B., in tail or in fee ; or to the use of B. for life, with remainder to the use of himself, the grantor, in tail ; and in all these cases he will take the legal estate by purchase accordingly (K). Though if the remainder were to the use of himself in fee, he woidd for- merly not have taken by pui'chase ; at least not in such sense as to make him a piu'chasing ancestor. For such a use was considered as amounting only to the old use in reversion, so that it would be converted by the statute into a legal estate in reversion, which would descend to the b)lood of the same pui-chaser as before (i). And such was the state of the law at the time of passing the In- heritance act (3 & 4 AVill. IV. c. 106) ; but that Act has (e) Co. Litt. 22 b; Read v. Er- {h) Co. Litt. 22 b; Co. Litt. by rington, Cro. EHz. 321 ; 2 Bl. Com. Harg. 13 a, n. (2) ; 1 Sand. Us. 135 ; 176. It is to be recollected here, Sugd. Gilb. 150, 151. that a reversion is always the old {i) 1 Rep. 129 b, 130 a; Co. Litt. estate, a remainder a new one ; vide 23 a ; Reed v. Errington, Cro. Eliz. sup. pp. 319, 324. 321 ; Ld. Raym. 802 ; Godolphin v. (/) 2 Bl. Com. 176 ; Walk. Desc. Abingdon, 2 Atk. 57. The case was 169 ; vide sup. pp. SQi, 432. the same where the use in fee resulted (g) Per Hale, Pibus v. Mitford, to the grantor, instead of being ex- 1 Vent. 378; Southcot i». .Stowell, pressly limited. As to resulting 2 Mod. 210 ; Walk. Desc. 180. uses, vide sup. p. 365. \ 552 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS RB5VL. now established a new rule with respect to the limitation which a man makes in his own favour, in his ovm con- veyance ; the terms of the provision (section 3) being as follows : — " that when any land (7f) shall have been limited " by any assiu-ance, executed after the 31st December, " 1833, to the person, or to the heirs (Z) of the person, " who shall thereby have conveyed the same land ; such " person shall be considered to have acqim'ed the same as " a purchaser by \'irtue of such assurance, and shall not " be considered as entitled thereto as his former estate, or " part thereof." We may add here, that upon the same principle which made it impossible for a man to convey^to himself, he could not at common law convey to his wife (m) ; she being considered by that law as the same person mth him. Yet the object may be eftected through the medium of a limitation to uses ; that is, by creating a seisin in an- other person, and declaring a use to the wife (w). \ 2, At common law, a freehold cannot be created to com- mence in futiiro; or in other words, cannot be limited to take effect at a future period, except by way of remainder upon some particular estate also passing at the same time out of the grantor ; for which ride, and the reasons on which it is founded, the reader is referred to a former part (k) The word land is used in this " heirs are so totally in him, as be Act in a sense much larger than pro- " may give the land to whom he perly belongs to it ; and is to be un- " will." — Co. Litt. 22 b ; and see 1 derstood to extend to all heredita- Vent. 378; 2 Bl. Com. 176. A limi- ments, corporeal or incorporeal, free- tation by a man to his own heirs was hold or copyhold ; and every interest consequently subject, before the In- capable of being inherited, including heritance Act, to the same rules as chattels and other personal property, stated in the text with respect to a if transmissible to /iefrs. (3&4W. 4, limitation by him to himself in fee, c. 106, s. 1.) or to his own use in fee. (1 Rep. (/) A limitation by a man to his 129 b, 130 a; Co. Litt. 22 b.) own heirs, is equivalent to a limita- (n?) Co. Litt. 112 a; Moyse v. tion to himself and his heirs ; "for," Giles, 2 Vern. 385 ; Lucas v. Lucas, says Lord Coke, "hares est pars ante- 1 Atk. 271; Arthur v. Bokenham, " cessoris. And this appeareth in a 11 Mod. 156. " common case, that if land begiven {?>) 1 Sand. Us. 132. " to a man and his heirs, all his C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 553 of the work (o). But this may be effectually done by a conveyance under the^ iStatute of Uses ; for a use was never subject to the like restriction, but may be Hmited for any extent of interest, to commence infuturo {p) ; and the sta- tute, taking effect on such future interest, transmutes it into legal estate {q). Thus a man may covenant to stand seised to the use of another in fee seven years hence, or bargain and sell to him in fee after seven years, and such convey- ance will be effectual (r). So by feoffment, or lease and release, an estate may be conveyed to A. and his heirs, to the use of B. and his heu's at the death of C. (s). A use thus limited in futuro, indej)endently of any preceding estate, is called a springing use (t). Such a use is also often described as executory, because it is not executed by the statute until it comes into esse by the arrival of the period contemplated. Thus, in the tAvo first examples, the whole fee remains in the covenantor or bargainor, till the seven years expire {u); in the two latter, a use results to the feoffor or releasor, till the death of C. {x). But on these events the springing vise is executed, and the cestui que use is clothed with the legal estate in fee. 3. By a common law conveyance, an estate cannot be limited, upon a ftitme event, to one person, in abridgment or defeasance of an estate of freehold, first limited to an- other (?/); which is often expressed, where the dispositions are both in fee simple, by the maxim that a fee cannot he limited on a fee (^r). Thus land cannot be conveyed at (o) Vide sup. pp. 326, 327 ; Sugd. ^64, 9th edit. Gilb. 163, (n.); 1 Sand. Us. 138. («) Fearne, by Butl. 372,9th ed.; (p) Vide sup. p. 368. 1 Sand. Us. 143; 2 Bl. Com. 173, ((/) Sugd. Gilb. 161, (n.) 164. This maxim applies, not only (r) 1 Sand. Us. 139, to such limitations as referred to in (s) Ibid. 140. the text, but also to limitations of (<) Sugd. Gilb. 153. one fee upon another by way of re- («) Ibid. 161, (n.) 153, (n.) malnder. For no remainder (as we (ar) 1 Sand. Us. 140. have seen) can be limited on a fee- (i/) Co. Litt, by But]. 203 (b), n. simple (vide sup. p. 326.) And (1); Cogan v. Cogan, Cro. Eliz. therefore if land be given to A. and 360; Fearne, by Bull. 14, 15, IS, his heirs, so long as B. has heirs of 564 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. common law to B. in fee, or for life, with provision tliat when C. returns from Rome, it shall thenceforth imme- diately go over to C. in fee (a). For this M^o viJd be to de- feat the first estate by force of a condition, which can only be"c[one byjhe^entry of the grantor, or h is heirs ; and the effect of such entry_would be to destroy the second limita- tion as well as the first, and to restore the grantor and his heu's to their former estate (i). . But a use might always be made to shift, in this manner, from one person to an- other (c) ; and therefore, since the statute, land may be conveyed thi'ough the medium of a use, in like manner ; as by limiting it to A. and his heirs, to the use of B. and his heirs, ydth pro\dso, that when C. returns from Rome, the land shall be to the use of C. and his heirs {d). A vise so Hmited in derogation of a preceding estate, is called a shifting or secondary use (e) ; and this also is of the_ exe- cutor]/ kind, the operation of the statute being suspended till the event arrives ( / ). Thus, in the example just given, thei^eTs~a use first executed by the statute in B., and when C. returns fi'om Rome, the use to C. comes into esse, and is executed in him (g). It is, hoAvever, to be observed, that as, upon questions of legal construction, a preference is always given to the modifications of the common law ; his body (which is a fee-simple (i) Co. Litt. 379 a ; Litt. ss. 721, qualified, vide sup. p. 244), with 722, 723 ; 1 Sand. Us. 151 ; vide remainder in fee to C, this re- sup. p. 307. mainder is void. (Fearne, by Butl. (c) Sugd. Gilb. 153, 154, (n.) ; 1 372, 9th edit.) And the maxim, in Sand. Us. 152. this sense of it, applies to convey- (d) 1 Sand. Us. 149. ances under the Statute of Uses, as (e) 1 Sand. Us. 152; Sugd. Gilb. well as those at common law. It is, 152, (n.) however, to be recollected, that there (/) Sugd. Gilb. 154, 155, (n.) ; 1 may be alternate or substituted limi- Sand. Us. 144. tations of the fee, where each of them {g) This form of disposition is is by way of contingent remainder sometimes called a conditional limita- (vide sup. p. 332). See the maxim tion, a term, however, which is also further discussed in the recent case used in a different sense. See Fearne, of Egerton v. Massey, 3 C. P. (N.S.) by Butl. (9th ed.) pp. 13, 15 ; Sugd. 338. Gilb. 178 (n.) ; 1 Sand. Us. 151. (a) Fearne, by Butl. 14, 15, 9th ed. C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 555 wherefore, it is firmly settled, that no estate cajmble of being considered as a remainder (according to the rules by wliich remainde rs are limited) shall ever be construed as a shifting or springing tise {h). 4. The grantor, in a common law conveyance, cannot reser ve to hi mself, nor confer on any_other person, the power of revoking or altering the grant, by any future act or instrument : for that is deemed repugnant to the con- veyance itself (Q. The utmost that the common law allows, is a deed of defeasance (coeval with the grant, and there- fore esteemed a part of it) upon events si)ecifically men - tioned (I{). But the limitation of a use, subject to a power of this description, was not considered as involving any repug- nancyrToi' a use was a mere direction to the trustee, how he was to deal mth the legal estate : Avhich might well be recalled or changed (Z). Therefore, in a conveyance imder the statute, a proviso giving to the grantor, or gi'antee, or a stranger, authority to revoke or alter, by a subsequent act, the estate first granted, will be valid ; for it^is ia effect no more than an authority to revoke the use first limited, or to declare a new one (m). Such provisoes are called powers (n) ; a term properly applicable, as we have seen (o), to all authorities, as distinguished from estates : and they are either mere powers of Revocation (p), enabling the grantor simply to recall what he has bestowed ; or powers of revocation and new appointment (q), authorizing the grantor, or some other person, to alter or make a new^ disposition of the estate conveyed. The first, will of course hardly find a place except in grants of a^g£^tuitous (h) 2 Saund. by Wms. 388; Fearne, " came from equity into the common by Butl. 393, 9th edit. '' law with the Statute of Uses."— (i) Co. Litt. 237 a; 2 Bl. Com. (1 Burr. 120.) 327, 335 ; 2 Fonb. 158, 150. (o) Vide sup. p. 234. (/f) 2 Bl. Com. 335; vide sup. (p) A ^ower of appointment im- p, 535. plies power of revocation, but not (0 Sugd. Gilh. 158, (n.) e Tonve rso. (4 Cruise, Dig. 232.) (m) Ibid. (q) 1 Sand. Us. 155 ; 4 Crui'^c, (71) "The limitation and modify- Dig. 228. " ing of estates by virtue of powers, N N 6 556 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. nature, (or voluntary conveyances as tliey are called,) though in these they are naturally to be expected (r) ; mankind^ according to the remark of Lord Bacon, having always affected to have the disposition of their property revocable in their oa\ti time, and irrevocable ever after- wards {s). But with respect to poAvers^ of revocation and new appointment, they are of frequent occurrence in^the more common case of conveyances founded on considera- tion, and particularly in family settlements ; their object notHbeing to indulge the caprice of any party, but to c^rry into effect wnth greater convenience the arrangements actually contemplated. Thus, if a life estate be limited to the settlor, with remainder over, it is common to insert a power enabling him fi'om time to time to make effectual leases of the property in possession, for terms not exceeding twenty-one years ; a privilege reasonable and convenient in itself, but such as is not incident to the estate of a tenant for life generally {t). Of the same nature, in general, are the uisual powers of jointuring, selling, charging land with the payment of smns of money, and the like («) ; and all these are technically described as powers of revocation and ncAv appointment, — because, in authorizing a new dis- position not made by the conveyance itself, they operate pro tanto as a revocation of those which it contains {x). Such a power, if closely considered, Avill be found to amoimt to an authority to create a use, to take effect in derogation, to a certain extent, of the uses first hmited ; or (r) 2 FonK 155, n. {q). (.r) 1 Sand. Us. 155 ; 4 Cruise, (s) 2 Bl. Com. 335. Dig. 228. The term power of revo- {t) It is to be remembered here, cation and new appointment is not, that by a recent Act (19 & 20 Vict. however, usually applied to a mere c. 120) such leases may now be made power of leasing, jointuring, or the by a tenant for life under a settle- like ; but to powers of a different jnent even without a power to that nature, as where a man conveys his effect in the settlement ; provided it estate to trustees to certain uses, contains no express declaration to with proviso that it shall be lawful the contrary, and subject to such for him at any future time to revoke exceptions and provisions as are these uses and declare new ones, contained in that statute; (vide sup. &c.; ibid ; and see 1 Cruise, Dig. p. 263.) 4.38 ; Doe i'. Martin, 4 T. R. 39. (k) 2 Sand. Us. 81. C. XVIII. — OF COXVEYxVXCES UXDER STATUTE OF USES. 557 rather to the %'ii-tual Hmitation of an executory use of that description, in favour^of such person, and for such estate, as shall be defined by the subsequent act of the donee of the power (?/). This subsequent act or exercise of the power is called an appointment {z) ; and its effect (when it correctly piu-sues the authority) is to raise, in favour of the appointee, a use corresponding to the estate ap- pointed^) ; which being served out of the original seisin, is immediately executed by the statute, and transmuted into equivalent legal estate (5). An appointment is not con- sidered as an independent conveyance (c). It is merely ancillary to the former deed ; which (as ah'eady observed) contains, in effect, a prospective limitation of the new use. The appointee, therefore, is considered, for most piu-poses, as deri%dng his title under the original conveyance (c?)^and^ (y) Sugd. Gilb. 152, 153 (n.); 2 Sand. Us. 81. (z) 2 Sand. Us. 31. " In what- " ever mode the power is exercised, " whether by grant, bargain and sale, " will, &c., the instrument in every " case operates strictly as an appoint- " ment or declaration of the use ; " and therefore, in consequence of " the rule before noticed, that there " cannot be a use upon a use, the " bargainee, &c. takes the legal es- " tate, the appointment being made " to him ; and if any ulterior use is " declared, it operates merely as a " trust in equity." — 2 Sugd. Powers, p. 14 (ed. 1836); et vide ibid. vol. i. p. 240. («) As to the manner of executing a power to appoint by will, see 7 Will. 4 & 1 Vict. c. 26, ss. 27, 10 ; as to illusory appointments, see 11 Geo. 4 & 1 Will. 4, c- 46 ; see also 12 & 13 Vict, c 26, (suspended by 12 & 13 Vict. c. 110, and repealed in part by 13 & 14 Vict. c. 17,) and 22 & 23 Vict. c. 35, s. 12, giving relief against the defective exe- cution of powers. By the pro- vision last mentioned, any deed thereafter executed in the presence of, and attested by two or more wit- nesses, in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execu- tion and attestation thereof, be a valid execution of a power of ap- pointment by deed, or by any instru- ment in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing, made in exer- cise of such powers, should be exe- cuted or attested with some additional or other form of execution, attesta- tion or solemnity. (6) 2 Sand. Us. 82 ; 4 Cruise, Dig. 228. (c) 2 Sand. Us. 84. {d) 4 Cruise, Dig. 282, 497 ; Bringloe v. Goodson, 4 Bing. N. C. 734 ; see also Sugd. Powers, vol. ii. p. 25, edit. 1836. 558 BK. II, OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. to be In the same position as if tliat instrument liad actually contamed a limitation in liis fav oui', to the extent of tliees- tate appointed. Not only as to the limitation of estates, bnt in other particulars, there were important differences between con- veyances to uses, and those that take effect at common law. For most purposes (as we have seen) an actual pos- session is deemed to be given, by the former conveyances, v equivalent to that which would have been obtained if the alienee (supposing the interest conferred to be freehold) had received livery of seisin, or (supposing it leascliold) had made actual entry (e). But as a bargain and sale, a covenant to stand seised, and a lease and release, convey the actual possession by construction of law only, so they differedTi-om a feoffinent, in such incidents as result from its real delivery in point of fact. Therefore, though a feoff- ment, when made by the tenant in actual possession, would convey a wrongfid estate of freehold (supposing his title insufficient to give a rightful one), and, when made by a particular tenant for a greater estate than he can lawfully convey, would occasion a forfeiture (or, in the case of tenant in tail, a discontinuance) of the particidar estate, and the contingent remainders dependent on that estate were consequently liable to be defeated (f),—no such results woidd follow fi-om any conveyance by way of covenant to stand seised, bargain and sale, or lease and release (^). For by the feoffiiient, there was an actual investiture of the possession, as for an estate of freehold; which, as it was held, must take effect either dejure or de facto; but the other conveyances coidd, in their nature, pass no mcnce than the grantor might lawfidly transfer (A). For this reason they received, by way of distinction fi-om a feoff- ment, (and others now abohshed of the Hke nature,) the (e) 2 Sand. Us. 52. (/*) Fearne, by Butler, 322, 9th (/) Vide sup. p. 468. ed. ; Smith v. Clyfford, 1 T. R. 744. (g) 2Sand. Us. 73. C. XVIII. — OF CONVEYA^^CES UNDER STATUTE OF USES. 559 appellation of innocent convey ances (?'). But the statute 8 & 9 Vict , c. 106, s. 4 , having (as we have seen) provided, that a feoffinent made after the 1st October, 1845, shall not have any tortious operation, the whole learning on the subject to which we have here refeiTcd, (so far as regards fiiture conveyances,) has, by the effect of this pro\asion, been swept away. The reader who reflects attentively on the natiu-e of a conveyance under the Statute of Uses, as Ave have at- tempted to explain it in the present chapter, -^dll not fail to be impressed with the importance of the changes which this act of parliament incidentally occasioned. It has been said to have had Httle other effect than to make a slight alteration in the formal words of a conveyance (Ji), — a re- mark alluding to the practice it has introduced of hmiting one use upon another, when the intention is to give a trust estate. So far indeed as the creation of that species of interest is concerned, such, and such only, was its result, but the remark puts altogether out of sight its operations in regard to the legal estate. We have seen that it enabled the owner to dispose of this, in methods obA'iously more suitable to the exigencies of social life than the convey- ances formerly employed, and exempt from the harsh and inconvenient effects with which these were sometimes attended ; and (what is still of greater coijsequence) that it materially enlarged the power of alienation itself, by affording him the means of subjecting his property to a variety of arrangements of which it was before incapable. In thus^affording escape, however, fr-om the rigours of (i) Fearne, ubi sup. ; in Smith v. Us. 49.) Clyfford, 1 T. R. 744, they are termed (/r ) 2 Bl. Com. 336. The learned lawful conveyances. The same pro- Commentator, however, notices im- perty of passing no estate beyond mediately afterwards, p. 337, its what the grantor may properly trans- having introduced new species of fer belongs also to a grant at com- conveyances, mon law. (Co. Litt. 332 a ; 2 Sand. 560 BK. II. OF RIGHTS OF PROPERTY. — PT. I. TIIIXOS REAL. tlie antieiit law, the statute would have opened the door (unless closely watched) to inconveniences of a different description. For it Avould have enabled conveying parties, thi'ough the medium of springing and shifting uses, and powers of revocation and new appointment, to prescribe the com'se in Avhich their property shall devolve, and pre- vent its effectual alienation, for any peiiod of time however extended ; and therefore to curb this licence, it was found necessary to establish a rigid rule of restriction. In order to explain this, we shall be led into some examination, before we close the chapter, of a subject which now for the first time presents itself, viz. that oi perpetuity (J). In settlements (by which we here mean conveyances by way of provision for a family, Avhether made in consideration of marriage or otherwise), grantors have always been na- turally prone to regidate the succession to an estate at very distant periods: — the earUest known arrangement of this nature haA^ng been the creation of an estate tail ; which once operated as a sure and perpetual settlement of the property, in the line of the first donee, for the re- motest generations. But as all such arrangements, while they continue in force, however long that period may be, tie up the property, (as it is commonly expressed,) or in other words prevent its fi'ee ahenation ; they have been considered in later times with reasonable jealousy and dislike, as tending to embarrass the transactions of man- kind, and to fi-ustrate the purposes for which property was first established (m). To these feelings was doubtless in some measure attributable (n) the doctrine established by Taltarum's case, in the reign of Edward the fourth (o), {I) On the subject of perpetuity, Monypenny v. Bering, 16 Mee. & see Co. Litt. by Butler, 379 b; W. 418. 327 a; 1 Sugd. Pow. 491; edit. (m) See 2 BI. Com. 173. 1836; 1 Pow. Dev. 388 ; 3 Reeves's (n) See Taylor v. Horde, 1 Burr. Hist Eng. Law, 324; 1 Smith's 60; 5 Cruise, Dig. 328. Leading Cases, 183 ; Cadell v. Pal- (o) See as to this case, 5 Cruise, mer, 10 Bing. 140 ; ToUemache v. Dig. 422, 423 ; et sup. p. 253. Lord Coventry, S Bligh, N. S. 547 ; C. XVIII. — OF CON^'EYAXCES UXDER STATUTE OF USES. 561 by which a common recovery was allowed to have the ef fect o f imfetteriiig an estate tail ; and in the same spiiit, when limitations by way of sj^ringing and shifting uses, and powers of revocation and neAv appointment, came into practice, the courts of justice soon began to contemplate T\ath alarm the restrictive tendency of these devices. It was thought necessary, therefore, to fix upon some period as the latest at which an estate limited by way of executoiy use shall be allowed to vest. Such a period has been ac- cordingly estabhshed by a series of judicial decisions ; and it is one derived from the state of the law appHcable to entails. Even upon the most pennanent plan, that of strict settlement, to which we adverted in a former place {p), the estate entaUed could not, after the doctrine established by Taltarmn's case, be pi'eserved from ahena- tion longer than during the life of the taker of the first estate of freehold, and the nonage of the tenant in tail next in remainder : for on attaining the age of twenty-one, the latter was competent, with the concurrence of the fomier, to suffer a recoveiy. Bj_analogy to this (§') it has become the rule that the latest period at which an estate limited by way of executory use can be allowed to vest, is (with one pax-ticular except ion) the expiration of some life or lives in bein g, and twenty-o n e years afterwar ds {r) ; as if a man be seised m fee of lands, and gives them to the first son of J. S. that shall attain twenty-one, and his heirs, — where the estate vests, at the latest, on the expiration of J. S.'s life and^the infancy of such son ; and tliis infancy, generally speaking, cannot expire later than twenty-one years afFer J. S.'s death : but if the son is bom posthu- mously (which brings the case within the exception above alluded to) it will expire later by the addition of the tisne (/j) Vide sup. p. 337. Blackall, 7 T. R. 100; Cadell v. (q) Co. Liu. by Harg. 20 a ; note Palmer, 10 Bing. 140, S. C. Bligh, (5). N. S. 202 ; Gilbertson v. Richards, (r) 2 Bl. Com. 174; Long v. -5 H & N. 453. VOL. I. O O 562 BK. II. OF RIGHTS OF PROrERTY. — PT. I. THINGS REAL. of gestation in utero wliich ibllows iipou such death (s). On the other hand, however, in the case when the period at which the estate is Hmited to vest comprises no hfe or lives in being, it is not allowed to exceed twenty-one years from the time Avhen the limitation is created (J). Such being the rule, in these different cases respectively, as to the latest period at wliich an estate by way of exe- cutory use is allowed to vest, — w-e have now to add that it has been long established as a general principle, and one not applicable to executory uses only, that the la^ abhors perpetuity (u) ; that is (accorduig to the usual meaning of the term) any limitation, eitlier for legal or equitable interests, and whether by executory use, remainder, or otherwise, of such a natiu'e as to lead to the possibihty, if it were allowed, of making a future estate vest at a later period than is warranted by such rule ; and that it uni- formly annuls ever}- such limitation (.t). Xor is this prin- («) 2 Bl. Com. 174; Long v. Baekall, ubi sup. ; Wilkinson v. South, 7 T. R. 558 ; Cadell v. Pal- mer, 10 Bing. 140; S. C. 7 Bligh, N. S. 202. {t) Palmer v. Holford, 4 Russ. 403 ; 1 Jarman on Wills, 2nd ed. p. 205. {u) 2 Bl. Com. 174. It is said in 10 Rep. 113 b, that "perpetuities, " monopolies, and patents of con- " cealment, were born under an un- " fortunate constellation ; for as soon " as they have been brought in ques- " tion, judgment has always been " given against them, and none at '* any time given for them." (a) Long V. Blackall, 7 T. R. 100 ; Doe V. Ewart, 7 Ad. & El. 648; Cadell V. Palmer, ubi sup. ; Gilbert- son V. Richards, 5 H. & N. 453. To show that the doctrine which annuls a limitation, on the ground of its tending to perpetuity, applies to remainders, it is sufficient to cite Fearne, by Butler, 9th ed. 502, which is as follows : " if lands be " limited to a person in esse, with " remainder after his decease to '' his unborn children, and after. '' wards to the children of such " unborn childien, this last remain- " der is absolutely void." (See also Cliallis V. Doe d. Evans, 18 Q. B. 231, and Cattlin v. Browne, 11 Hare, 375.) It is sometimes, however, laid down in the books, that this doctrine does not apply to remain- ders. But this seems too wide a proposition. No doubt it is inappli- cable to some remainders, for exam- ple, to one limited on a prior estate tail ; for the liability of that to be barred by a recovery is a sufficient protection from perpetuity, and there is no need, therefore, of the doctrine. But the case is different with regard to a remainder such as mentioned in the above citation from Butler. C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 563 ciple confined to dispositions of tlie freehold. It applies also to terms of years and to personal property (y). In connection with tlie siihject of the rule against perpe- tuity, we may notice here the state of the law mth respect to the accumulation of the income of property, whether real or personal, even when the period allowed by that rule is not exceeded. A remarkable instance having occurred, in which, to secm-e an immense fortune to his distant de- scendants, a testator had recourse to the expedient of direct- ing the income of his property to be accumulated during the hves of all his children, grandchildi-en and great-grand- children, who were h\dng at the time of his death, for the benefit of some future descendants to be living at the death of the survivor (z); it was thought expedient to put a check, for the futiu'e, on dispositions of this description : AncTiFis consequently now provided by act of parhament (39 & 40 Geo. III. c. 98), that no such accumulation shall be allowed for a longer term than the life of the grantor, or twenty-one years fi'om the death of the grantor or testator, or diuing the minority of any person li\ang or in ventre sa mere at the death of such grantor or testator, or during the minority only of any person who, imder the uses or trusts of the instrument directing such accumula- tions, would for the time being, if of full age, be entitled to the income so directed to be accumulated : and, fm'ther, that where any accumulation is directed contrary to the Act, such direction shall be void, and the income during the time the property is directed to acciunulate contrary to the Act, shall go to such person as would have been en- titled thereto, if no such accumulation had been directed (a). ( of Grafton v. Birmingham Railway perty Report, p. 22. 582 BK. II. OF KIGIITS OF rKOrEIlTY. I'T. I. TIIIXGS EEAL. ance, viz., the deed to lead or to declare their uses. For as the most usual fine sitr cognizance de droit come ceo, &c., conveyed an absolute estate without any limitations to the cognizee ; and as common recoveries did the same to the re- coveror ; these assiu'ances could not in themselves be made to answer the pm*poses of family settlements, wherein a vafie^of designation and an-angement is often expedient. The fi ne or recovery itsel f, [like a power once gained in mechanics,] was applied, therefore, through the mediumof uses, |]to give efficacy to an infinite variety of movements, i n the vast and intricate machine of a v olumino us famil y settlement. ] A nd if these deeds Avere made ]:)reA'ious to the fine or recovery, they were called de ed s to lead the vi ses; if subsequent, d eeds t o declare the m. xVs if A., tenant in tail, AA-ith reversion to himself in fee, woidd settle his estate on B. for life, remainder to C in tail, remamder to I), in fee, — that is what by law he had no poAver of doing effectually, w^hile his own estate tail was in being. He therefore usually, after making the settlement pro- posed, covenanted to levy a fine to (or if there were any iatermediate remainders, to suffer a recovery in favour of) E,, and directed that the same should enure to the uses in such settlement mentioned. This, then, was a deed to lead the uses of the fine or recovery; and the fine when levi ed, or the recovery when suffered, would enure to the uses so specified, and no other. For though E., the cognizee or recoveror, had a fee simple vested in himself by the fine or recovery, yet, by the operation of this deed, he became [a mere mstrument or conduit-pipe, seised only to the use of B,, C. and D. in successive order; which use was executed immediately by force of the Statute of Uses.] Or, if a fine or recovery were had AA^thout any previous settlement, and a deed were afterwards made betAveen the parties, declaring the uses to which the same should be applied ; this would be equally good as if it had been expressly levied or suffered, in consequence of a deed directing its operation to those particular uses. For by statute 4 & 5 Anne, c. 16, C. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 583 indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, were made good and effectual in law ; and the fine and recovery were to enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the Statute of Frauds, (29 Car. II. c. 3,) to the contrary. The cumbrous fictions, of which a slender abstract only has been here presented to the reader, constituted, in actual practice, a branch of conveyancing of the most subtle, intricate, and costly character. After being allowed for centuries to deform our jurisprudence, their inconvenience at length began to excite attention. With respect to re- coveries, in particidar, we find in the work of Blackstone, a suggestion that they might be advantageously abohshed ; and the tenant be empowered to bar his estate tail, by the more simple expedient of a solemn deed to be enrolled in some court of record {u). It was not, how^ever, imtil a recent period, that this great improvement was carried into effect ; and for its realization the public is indebted to the commission appointed in the nmth year of King George the fom-th, to re^ase the laws relating to real property. At the suggestion of that learned body, early in the succeed- ing reign, the act of parhament mentioned at the com- meiicement of this chapter (3 & 4 Will. IV. c. 74) was passed, " For the abolition of Fines and Recovenes, and " for the substitution of more simple modes of Assiu-ance." This statute — to which we had before occasion briefly to advert (x) — first enacts, that after the 31st December, 1833, no fine shall be levied or recovery suffered of lands of any tenure, with the exception of such as should then be in actual progress iy) ; and then proceeds to provide new methods for effectuating, in future, such of the results of these assurances as it was deemed right to preserve, viz., the ban'ing of estates tail, and the passing or binding of (^0 2 Bl. Com, 300. (y) 3 & 4 Will. 4, c. 74, s. 2. (x) Vide Slip. p. 2.5(). 584 BK. II. OF IlIGIITS OF PKOrERTY. PT. I. THINGS EEAL. the estates or interests of married Avomeii : while, on the other hand, it purposely omits to appoint any substitute for them, so Jar as regards their effect in working a forfeiture, — or the bar by nonclaim, or discontinuance, in the case of fine. I. In reference to the first of the residts perj^etuated (the barring of estates tail), the enactment (a) is in substance as follows : that every actual tenant in tai\[b), Avhether in possession, remainder, contingency, or otherwise, shall have flill power (subject to the pro\dsion8 hereinafter mentioned as to protectorship) to dispose of the lands entailed (c), for an estate in fee simple absolute, or any less estate, as against all persons claiming under the estate tail, or in respect of any ulterior estate {d). And in lieu of a fine and recovery, it directs that such disposition may be made bj any of the assurances (a will excepted) which would have sufficed for the purpose, supposing the estate to have been one in fee simple absolute ; so that the dis^josition be an actual conveyance, and not one resting in contract only, and so that it be by deed, and inroUed in the High Coui-t of Chancery Avithin six calendar months after the execu- tion (e). An estate tail in lands of fi'eehold tenm*e-£for copyholds are not to our present pui*]^)ose ( f )'^ may now consequently be baiTed as against the grantor himself, the issue in tail, and all others in remainder, reversion, or (a) 3 & 4 Will. 4, c. 74, s. 15. (d) In this provision, tlic crown is (h) The definition of " actual te- expressly included (sect. 15). nant in tail," (as the term is used in (e) Sects. 40, 73. And (by sect. this Act,) is thus given, " the tenant 41) if the assurance be a bargain of an estate tail which shall not have and sale, it will, if enrolled in due been barred" (sect. 1). time in the Court of Chancery ac- (c) The word lands when used cording to this Act, be as valid as generally in this Act extends to all if it had been inrolled within the hereditaments of vshatever tenure time prescribed by the statute 27 (except copyhold,) and whether of Henry 8; as to which vide sup. p. the corporeal or incorporeal class. 543. It extends also to copyhold, where (/) As to copyholds, vide post, accompanied by expressions denot- bk. ii. pt. i. c. xxii. jng that tenure (sect. 1). C. XIX.— OF COX\'EYAXCES BY TEXAXTS IX TAIL, ETC. 585 other expectancy (subject to the pro\asions as to protec- torship before refen-ed to), by any o f those conveyances (Av hether at common law or under th e Statute of U ses) th at have been discussed in former chap ters ; su]3])osino ; such co nveyance to be by deed, and by deed didy inr ojled. The inrohuent, indeed, is not essential in ever}- case, it being dis- pensed Tidth, where the disposition is by way of lease not exceedmg tAventy-one years, to commence from the date, or within tAvelve calendar months from the date ; and reserving a rack rent, or not less than five-sixths of a rack rent. Sup- posing the inrolment (when required) to be made in due time {g), the deed takes effect from the execution (Ji) ; but a subsequent deed, if first inrolled, AAall be entitled to priority (z). T o u nderstand the provisions as to protectorship?, we must recollect, that though, by a fine, the issue might abvays be baiTed at pleasure, a common recovery (which alone had any e ffect as regarded those in remainder or re - ve rsion ) was ineffectual Avhen suffered by a tenant in tail not having an estate of freehold in possession, unless he obtained the concui-rence of the person in whom the im- mediate freehold was vested (A). Now this check would haAC Tjeen entirely taken off, if the new statute, in abolish- ing recoveries, had proceeded simply to proA'ide, that the tenant in tail might, in fritm'e, bar all parties through the medium of a deed inrolled. But it was not the design of the legislatvu'e to go so far. The restraint in question was merely the accidental consequence, it is true, of the fiction on which a recoACiy is built, and its general tendencies were useless and injm-ious ; but it happened, on the other hanHT^to secui'C one important object, that of affording protection to family settlements. For in these, it is xisual to limit estates in remainder to the sons successiA^ely in tail, expectant on the determination of the parent's life (g) 3 & 4 Will. 4, c. 74, s. 41. (i) Ibid. (A) Sect. 74. (A-) Vide sup. p. 578. 586 BK. II. OF RIGHTS Or PROrERTY. — VT. I. THINGS REAL. estate : and the doctrine, wliich required the concuiTence of the parent, as tlie immediate tenant of the freehold, put it out of the power of the eldest son to defeat the settlement, at his o^vn pleasm-e, by a recovery ; which he would otherwise have always been in a condition to do, as soon as he attained the period of majority. So far, therefore, as this ol)ject is concerned, it was deemed ex- pedient that the substitute pro^dded by the Act in question (when used for the purpose of a common recovery, and not merely the purpose of a fine,) shoidd be subjected to a check of the same description as the recovery itself; though, as a general rule, the concurrence of the person seised of the immediate estate of freehold is no longer re- quired. The specific provision to Avhich we here refer is to the following effect (/) : that no disposition, by a person who is tenant in tail under a settlement, shall be effectual imder the Act to bar any person but those claiming by force of the entail, unless it be made A vith consent of the person Avho ( within the meaning of the Act) i s " o\\Ticr " of the f n^t estate of freehold, (or for years determ inable "on Jife or lives,) prior to the estail tail(/w) : and the person, whose consent is thus required, receives accordingly the appella- tion of protector of the settlement. This provision , how- ever, it is mateiial to remark, is expressly confined to th e case where the prior estate is created by the same settleme nt as the entail : for wfiei'e it is"constituted by a different as- surance, the reason on which the protectorship is founded fails ; and the Act consequently leaves the tenant in tail to thefree exercise of his power of disposition (w). (0 3 & 4 Will. 4, c. 74, s. 34. Will. 4, c. 74, s. 1), an estate con- {m) Sect. 22. The words of the firmed or restored by the settlement Act are, " any estate for years deter- (sect. 25), an estate resulting to the " minable on the dropping of a life settlor (sect. 22), and an estate by " or lives, or any greater estate, not the curtesy, in respect of the estate "^eing an estate for years, prior to tail, or of any prior estate created by " the estate tail." the same settlement (sect. 22), — are, {n) It is to be observed that an respectively, to be considered as estate created by appointment, under " created by the settlement." a powder in the settlement (3 & 4 C. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 587 A^Tiere an assurance is executed by a tenant in tail, in sucli form and witli such attendant ceremonies as tlie statute requires ; it passes an indefeasible estate in fee simple abso- lute, for life, or years, or otherwise, according to the nature of the Hmitation. But if it be executed A^dthout consent of the protector, in a case wEere a protector exists, its effect is to bar the grantor and liis issue in tail only, and the rights of other persons claiming in expectancy on the estate ^tail are not affected(o). An assurance purporting to be in Tee simple absolute, will therefore in such case con- vey no more than a base fee(p) determinable on the failmre of issue (§'); though it is in the power of the grantoi", by afterwards obtaining the consent of the protector, and maEing a new disposition thereon, to enlarge such base fee into a fee simple absolute (r). And in the particular case, when, for vv^ant of the protector's consent, such base fee is created, and the immediate remainder or reversion in fee~iiappens also to become united in the same person with the base fee, — the latter mil ipso facta, and without any such consent or new disposition, enlarge into a fee simple absolute (s). But whether the bar effected be general or partial only in its natiu-e, it is to be imderstood that in all cases it operates Avithout prejudice to the in- terests of other parties not claiming by force of, or in ex- pectancy upon, the entail. It_ consequently leaves all estates prior to the estate tail undistui'bed(^). Although, in general, the Act proA-ides that the " owner'^ of the first prior estate (being of the kind ah-eady de- scribed) shall be the protector of the settlement, yet we may remark, that there are many cases in which the qua- lification for the protectorship is subject to more specific ])rovision. For first, in certain cases arising before 31st December, 1833 (the date from which fines and recoveries are abolished), the person, who, under the old law, Avotdd (o) 3 & 4 Will. 4, c. 74, ss. 15, 3 K (r) Sects. 19, 35. (p) Sect. 1. (s) Sect. 39. (rj) Ibiil. (0 Sects. 15, 19. 588 BK. II. OF RIGHTS OF PROrEETY. — FT. I. THINGS REAL. have been the proper party to make a tenant to the prce- cipe, is noAv, A\athout regard to any other laile of quahfica- tion, to be the protector (?/). The Act also provides that the first prior estate of freehold or of years determinable on life or lives, shall not avail to confer the protectorship, on any persons who take that estate as lessees at a rent ; or as doweresses, bare trustees, heirs, executors, adminis- trators, or assigns (a:) — vnth the exception, however, as to bare trustees, of such as, under any settlement made be-, fore the Act, would have been the proper parties to make a tenant to the prcBcij)e(^y) — the office being, in every case of exclusion, cast upon the owner of the next estate (if any) qualified to constitute a protectorship (^r). Nor is the creation of the office always by the mere act of law. For the settlor himself is entitled, in the settlement creating the entail, to appoint any person or persons in esse (not ex- ceeding three in number, and not being aliens,) to act in this capacity (the tenant of the prior estate being included in the number or not, at the pleasure of the settlor) ; and also to insert in the deed a power for the substitution of others, in the event of the death or retirement of those originally nominated (a). The office is intended to be in every case ?i personal one ; and therefore a pi'otector does not lose his right to act in that capacity by a transfer of the estate in ^drtue of which it was acquii'ed; whether that transfer takes place by his own ahenation, or by his other act or default (6). But when the person who would otherwise be protector is in- competent by reason of insanity, the Lord Chancellor (or other person deputed to exercise the royal fimctions with respect to idiots and lunatics) is to become protector in his stead : and where he, who would otherwise be protector, is disabled by treason or felony, the office is vested in the {u) 3 & 4 Will. 4, c. 74, ss. 29, 30, (z) Sect. 28. 31. {a) Sect. 32. (,r) Sects. 26, 27. (&) Sect. 22. iy) Sect. 31. C. XIX.— or CONYEYAXCES BY TEXAXTS IX TAIL, ETC. 589 Court of Chancery ; to which latter jurisdiction it is also confided in some other particular cases (c). A married woman, however, is competent to be protector ; and if the prior estate, in respect of which she becomes so, is settled to her separate use, she is to hold the office independently of lier husband, but, where not so settled, in conjunction Avith him only(c?). We may remark, too, that the office is in every case of a purely discretionary character ; so that the protector is absolutely free from all control in its exer- cise, and cannot, even by his owilI previous agreement, fetter his fr'ee agency on this subject (e). And lastly, that as to the consent which it is thus absolutely in his power to grant or to withhold, — it may either be given by the same instrument which makes the disposition, or by a separate one to be executed on or before the same day with the other, and to be duly inrolled(y); but when once given, it is incapable of being revoked (^). It is not only on legcd estates that an assiu'ance vmder the statut e in question will o])erat e, nor in respect of these only tliat its operation was required. It is indeed gene- rally true, that equitahle interests will pass by any instru- ment sufficient to indicate the intention of the grantor; Ji^ r. but equitab le estates entailed, or those belonging to marr ied women, and not settled to their se]3arate use, are exception s to 'the riilc, and can not be transfeiTed by an ordinary con - v eyance. It was consequently the practice l^efore the statute passed, to convey interests of the former descrip- tion (to which alone our attention is now dfrected) through the medium of fines and recoveries (A) ; which, though always transacted in a common law court (viz. the Com- mon Pleas), were considered in equity as legitimate as- surances for the piu'pose. Thus, if lands were given to (c) 3 & 4 Will. 4, c. 74, ss. 33, 48 ; (/) Sects. 42, 46. InreWainwright, 13Sim.(Ch.)260. {g) Sect. 44. {d) 3 & 4Will. 4,c.74,ss. 24,45, {h) 5 Cruise, Dig. 301, 461 ; Bo- 79. teler?;. Allington, I Bro. C. C. 72. (e) Sects. 3G, 37. 590 BK.Il. OF RIGHTS OF niOPEr/rY. — FT. I. THINGS REAL. tlie use of A. in fee, in trust for B. in tail, witli remainder over, — a fine levied or recovery suffered by B. in tlie Com- nion Pleas, was recognized in tlie courts of equity, as a bar to his equitable estate : that is, a bar to the extent to which the same assurance wovdd have operated on a legal estate of the same description (i). By the Act for abolish- ing fines and recoveries, a similar effect now belongs to the substituted assurance ; the word " estate" being used, throughout its provisions, " to express an estate in equity, as well as at law" (A). The Statute is also framed to take effect not only on actual entails, but upon money or land liable to be converted into entailed estate. This happens in the case where trustees have been directed to invest money in land, which, when purchased, is to be settled in tail for the benefit of a certain party; or to sell land and to invest the produce in like manner. With respect to trusts of this description, the statute provides, that all the clauses it contains shall be apphcable (so far as circumstances will permit) to the monies or lands so to be invested ; in the same manner as they Avould apply to the lands to be piu'chased, supposing the same to be actually pm-chased and settled conformably to the trust. But when the trust fund con- sists of leasehold estate, or of money, it is to be con- sidered (as to the person in whose favour or for whose benefit the disposition is to be made) as personal estate ; and any disposition of it by the intended tenant in tail must be made, not by a conveyance appropriate to the passing of the realty, but by a mere deed of assignment inrolled in the High Court of Chancery within six ca- lendar months after the execiition(/). As the power o f disposition given by this Act applies both to lega l and equitable interests, so it extends t o almo st eve ry species of entailed esta te. The only exception s a]opear t o be the case of tenant in ta il aj^er possibilit y of issuejx- (i) See Doe d. Cadogan v. Ewart, CO 3 & 4 Will. 4, c. 74, s. 1. 7 Ad. & El. 636. (0 Sect. 71. C. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 591 tinct (m) ; and of those wlio by the 34 & 35 Hen. YII I. c. 20 (t?.), or any o ther statute, arc restrained from ba rring t heir estates tai l (o). II. With regard to the second object comprised in the Fine and Recovery Act, viz. the passing or binding of the estate or interests of man-ied women ( p), it contains a ge- neral provision that a feme covert shall be as competent as if she were a feme sole, to dispose by deed, of lands of any tenure,~or~of money subject to be invested in the pvu-- chase oT lands ; and also to extinguish any estate which she, (or she and her husband in her right,) may have, or any power, which may be vested in her, in regard to lands or to money of that description; — provided only that her husband shall c oncur in the deed [q), and tha t up on her exec uting the same, or afte rwards, she produce and acknow - le dge it before the proper authorities (r). The persons be- fore whom it is to be acknowledged are — either a judge of one of the superior courts at Westminster, or two of the perpetuaTor special commissioners appointed for that pur- pose in the manner directed by the Act (s) : and they are (»«) 3 & 4 Will. 4, c. 74, s. 18. tion, that Act is repealed; and as As to tliis estate, vide sup. p. 267. to existing settlements, the power By 14 Eliz. c. 8, a recovery suffered of disposition is conferred on the by a tenant in tail of this description tenants of such estates, subject to was void as against those in rever • their obtaining such assent as would sion and remainder, if suffered with- have been required under that Act, out their consent. to render valid a fine or recovery. (w) 3 & 4Will. 4, c. 74, s. 18. It (See 3 & 4 Will. 4, c. 74, ss. 16, 17.) may be remarked here, that estates (p) As to the general state of the tail within the restriction of 34 & 35 law, with respect to purchases and Hen. 8, are excepted also from the conveyances of land by married operation of the powers given to women, vide sup. p. 481. the Court of Chancery as to settled (i?) 3 & 4 Will. 4, c. 74, s. 77. estates by 19 & 20 Vict. c. 120. See See Cross v. Middleton, 25 L. J. sect. 42 of that Act. (Ch.) 513. (o) Among these statutes, the 11 (r) 3 & 4 Will. 4, c. 74, s. 79. Hen. 4, c. 20, as to estates tail ex (s) By the Fine and Recovery provisione viri (as to which vide sup. Act, the "Masters in Chancery" are p. 581), is not included. For, as to also specified as persons before whom future settlements of that dtsciip- an acknowledgment may be taken. p p 8 592 BK. II. OF EIGHTS OF niOPEKTY.— I'T. I. THINGS REAL. directed, before tliej receive the acknowledgment of the feme covert, to examine her apai-t from her husband, in order to ascertain her fi-ee and voluntary; consent ; in the aljseiice of Avhich, the acknowledgment is to b e rej ected, and the deed becomes void, as far as relates to her execiitioja (0. Supposing the acknowledgment on the other hand to be received, an official memorandum of the fact is to be "written on the foot or margin of the deed ; and a certificate of it is to be also dra"mi up and signed on a separate piece of j)archment, and verified by affida\'it ; and the certificate and affidavit are then to be filed of record, in the Com-t of Common Pleas at Westminster (m). Until so recorded, the deed will have no effect as regards the party under coverture (v) ; but, when the record is complete, it will ope- rate to affect her interest, (by relation,) as from the time when it was acknowledged. When the object of the dis- position is to bar the estate tail of a married Avoman, the same course of proceeding is to be observed as in the case of other tenants in tail ; and tlie ceremony ol acknow- ledgmenT (with all its atten dant forms) is to be super- added ~(a:). The proceedings relative to acknowledgment are made subject, as to some of their details, to the regulation of the Court of Co mmon Pleas at Westmin ster ( ?/) ; wliich is also But, as to the masters in chancery, action giving occasion for such ac- see now 15 & 16 Vict. c. 80. By knowledgraent. 19 & 20 Vict. c. 108, s. 73, the ac- (r) See Jolly v. Handcock, 7 knowledgment may now also be Exch. 820. received by a judge of a county (j-) 3 & 4 Will. 4, c. 74, ss. 40, court. 79. (0 3 & 4 Will. 4, c. 74, s. 80. (y) Sect. 89. The Rules of the (w) By 17 & 18 Vict. c. 75 (passed Court of Common Pleas under this to remove some doubts), no deed Act, are of Hilary and Trinity acknowledged by a married woman Terms, 1834. (See 10 Bing. 458 ; 1 before a judge, &c., as above men- Bing. N. C. 242.) There had been tioned, shall be impeached, at any previous Rules (now revoked) of time after the certificatj of acknow- Michaelmas, 1833. See also Reg. ledgment has been filed, by reason Gen. T. T. 4 Will. 4, and 25 & 26 only that such judge, &c., was in- Vict. c. 96. terested or concerned in the trans- C. XIX. COXVEYANCES UNDER FINE AND RECOVERY ACT. 593 empowered by order, in a summary way, upon tlie ap^jli- cation of the wife, and upon such evidence as to the court shall see m meet, to dispense (in every ca se where it shall a ppear reasonable to do so) with the concurrence o f the hiisband in her acts, whether in barring an estate tail, or ex ecvitmg a deed for' any other purp ose (0)! The latter provision, however, is made with an express saving of such rights as the husband may possess independently of the Act (a). Such are the substitutes now provided by the legislature, in lieu of fine and recovery. The superiority of the new methods is manifest at the first glance ; but, in order to obtain a clear idea of the extent and nature of the reform which has been effected, it will be useful to advert to some of the specific points of difference between the present and the former system. The most obvious impro^'ement is, that, instead of ap- plying modes of assurance altogether peculiar and anoma- lous, to the pase where a tenant in tail or a married woman is the conveying party ; the law now enables them to pass their interests, by an instrument of the same description (in general) as is used in other ahenations of real estate ; and thus establishes a greater uniformity in the methods of conveyance. Xor is this a benefit of small amomit ; for all de^dations fi'om general rule engender difficulties, render the practice of the law less certain, and powerfiilly pro- mote the piu^oses of chicanery. The forms recently introduced, possess also the advantage of being incom- parably clearer and simpler than those which they have superseded. Considerable subtlety indeed attends a con- veyance under the Statute of Uses ; but it is to be recol- lected that fines and recoveries (when taken in connection (2) 3 &4 Will. 3, c. 74, s. 91. See parte Anderson, ib. 118. The court in re Darling, 2 C. B. 347 ; Re has power, under this section, to Turner, 3 C. B. 166; Re Dixon, 4 authorize her to dispose of copyhold. C. B. 631 ; Ex parte Taylor, 7 C. B. (Ex parte Shirley, 1 Arnold, 484.) 1 ; Re Eden, 28 L. J., C. P. 4; Ex (a) 3 & 4 Will. 4, c. 74, s. 91. parte Haigh, 2 0. B., N. S. 198; Ex VOL. I. Q Q 594 BK. II. OF KIGIITS OF PROPERTY. — PT. I. THINGS REAL. vdth tlieir appendages, tlie deeds to lead or declare the uses) themselves operated as conveyances under the sta- tute ; while at the same time they involved a fiction of the most intricate and artificial description, from which the substituted assurances are exempt. To this it may be added (and the point is by no means of subordinate im- portance), that the substitutes are considerably less expen- sive than their predecessors ; the charges connected ^dth a fine or recover}' (particularly the latter) haA-ing been so high as to form one of the most prominent reasons for their abolition. To pass from general to particular consi- derations, the former system was objectionable, fi*om the necessity which it fi-equently occasioned of creating a tenant to the precipe ; for, besides the inconvenience of being obliged to make an actual transfer of the freehold, for this purpose, to a stranger, it frequently happened that parties, Arithout whose concvuTence the fi-eehold could not be effectually conveyed, were by some mistake not joined in the proceedings, or refused to join in them, or could not be discovered (6). But, under the new system, all these annoyances are, by a neat and simple arrangement, avoided ; Avhile the only real benefit resulting fi-om the antient prac- tice, is at the same time effectually secured. For as the protector is always constituted by the same settlement as the tenant in tail, there can rarely be any difficulty in finding liim out ; and supposing the relation of parent and child to exist between them (as will usually be the case), there can be no reason to fear that compliance will be re- fused fi'om an unworthy motive ; nor, in case of compli- ance, vnU. any conveyance to a stranger be necessary, the mere consent of the protector (given in due form) being- all that the statute requires. It ought, lastly, to be men- tioned, as a fm-ther recommendation of the new assurances, that they are capable of being executed at any time that convenience may suggest ; in which respect they differ veiy (6) See the first Real Property Repm-t, p. 24, C. XIX. CONVEYANCES UNDER FINE AND RECOVERY ACT. 595 materially from the former methods, particularly that of recovery, which the law did not allow to be transacted, excej)t during the terms (c) ; for, as it was at those stated times only that the Court of Common Pleas was open, some of the proceedings in the fictitious suit were neces- sarily confined to the same periods ; from which circum- stance it frequently resulted that the death of parties would intervene to prevent the intended recovery, and defeat for ever the purposes which it was designed to ef- fectuate (d). (c) See Index to vol. in. in tit, and Recovery Act, will find an ample "Terms." and luminous disquisition upon it {(l) The reader desirous of further in the first volume of Mr. Hayes's information with respect to the Fine Introduction to Conveyancing. QQ 2 596 BE. II. OF EIGHTS OF PKOPEllTY.— PT. I. THINGS REAL. CHAPTER XX. OF DEVISES. The modes of assiu'ance hitherto examined, all operate or come into force from the time of the execution of the instrument(a) ; but there is another (and it is the last conveyance of an ordinary kind, to which we shall have occasion to refer), which is founded on a different prin- ciple, namely, a devise by last wdll and testament (b). For a ^^ill is of no force imtil after the death of the disposing party, but dmnng his life is (in the language of the law) merely ambulatory, that is, of an unsettled and fluctuating character. *' Omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem" (c). A will or testament are terms generally used without distinction, to express the instiaunent by which a man makes volimtary disposition of his property, after liis death. Testaments are said, both by Justinian (c?) and Sir EdAvard Coke (e), to be so called [because they are testatio mentis; an etymon which seems to savour too much of conceit, it being jolainly a substantive derived fi'om the verb testari, in like manner as juramentum, incre- mentum, and others, fi'om other verbs. The definition of the old Roman laT^yers is much better than their etymo- logy ; " voluntatis nostrce justa sententia, de eo quod quis (rt) Shelford on Wills, 5. properly used, in the larger sense (6) The lexm conveyances \s some- assigned to it in the present work. times applied to volunt-^.ry aliena- (c) Co. Litt. 112. tions inter vivos exclusively, and so {d) Inst. 2, 10. as not to include wills. But it is also (e) Co. Litt. 1 12 b, 322 b. CHAP. XX. — OF DEVISES. 597 Impost mortem suam fieri velW^f); \A\\q\\ may be tlius I'endered into English, tlie legal declaration of a man's intentions, which he wills to be performed after his death. It is called sententia to denote the circumspection and prudence vdih which it is supposed to be made ; it is volun- tatis nostrce sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically styled his will; it is justa sententia, that is, drawn, attested, and pubhshed, ^vith all due solemnities and forms of laAv ; it is de eo quod quis post mortem suam fieri velit, because it is of no force until after the death of the testator (^).] Wliile defining a will, we may also take occasion to explain the term codicil, which is derived from the Latin codicillus (importing a little book or wi-iting), and is an instrument made subsequently to the original will, by which its dispositions are explained or altered (A). It is subject, in general, to the same remarks as the original instrument itself, of which indeed it is considered as forming a part (i); so that what may be laid dovsTi as law relating to a will, may be taken generally as appHcable also to all codicils thereto annexed (k). With respect to the principle on which a disposition by AviU is allowed, [we have more than once observ^ed, that when property came to be vested in individuals by the right of occupancy, it became necessary, for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it ; which introduced the doctrine and practice of alienation. But these precautions would be very short and imperfect if they were confined to the life only of the occupier ; for then upon his death all his property woidd again become common, and create an infinite variety of strife and confusion. The law of very (/) Ff. 28, 1, 1. (k) In the new Statute of Wills, {g) 2 Bl. Com. 500. 7 Will, 4 & 1 Vict. c. 26, the term (h) Ibid. "will" is to be taken as extending (i) Ibid. to a codicil also (sect. 1). 598 BK.II. OF RIGHTS OF PEOPERTY.--rT. I. THINGS REAL. [many societies has therefore given to the proprietor a right of continuing his property, after his death, in such persons as he shall name (1). Testaments are of very great antiquity. We fincl them in use among the antient Hebrews ; though the example usually given (/«), of Abraham's complaining that, unless he had some children of his body, his steward Eliezer of Damascus, woidd be his heir (w), — -will be hardly thought quite conclusive to show that he had made him so by will. And indeed a learned ^svriter has adduced this very pas- sage to jDrove that in the patriarchal age, on faihu'e of children or kindred, the servants born under their master's roof succeeded to the inheritance as heirs at laAv (o). But — to omit what Eusebius and others have related of Noah's testament made in writing, and -ndtnessed imder liis seal, whereby he disposed of the whole Avorld (p) — it is appre- hended that a much more authentic instance of the early use of testaments may be found in the sacred writings (g), wherein Jacob bequeaths to his son Joseph a portion of his inheritance, double to that of his brethren : which will we find earned into execution many hundred years after- wards, Avhen the posterity of Joseph were divided into two distinct tribes (those of Ephraim and Manasseh), and had two several inheritances assigned them ; whereas the de- scendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced -nails into Athens (r), but in many other parts of Greece they were totally dis- countenanced (s). In Home they were unlaiOA\Ti until the laws of the Twelve Tables Avere compiled, which first gave the right of bequeathing (t) : and among the Northern (0 Puff. L. N. lib. 4, c. 10, {q) Genesis, c. 48. (?«) Barbeyr. Puff. 4, 10, 4 ; Go- (;•) Plutarch in Vita Solon, dolph. Orph. Leg. 1, 1 ; (et vide sup. (s) Pott. Antiq. 1. 4, c. 15 ; Her- p. 167.) mann's Antiq. s. 20. (n) Genesis, c. 15. (<) Inst. 2, 22, I. See Vinn. lib. (o) Taylor, Elem. Civ. Law, 517. 2, t. 10. (p) Seld. de Succ. Eb. c. 21. CHAP. XX. — OF DEVISES. 599 [nations, particularly among the Germans (m), testaments were not received into use. And this variety may serve to evince that the right of making wills and disposing of property after death, is merely a creatiu'e of the civil state {x) ; Avhich has permitted it in some countries, and denied it in others. And even Avhere it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven.] In this country, both real and personal estate have long been capable of transmission by will,— the latter, indeed, from time immemorial ; and a recent statute (7 AVill. IV. & 1 Vict. c. 26), to which we shall soon have occasion more particularly to refer, has now confirmed and fiu'ther regidated this power, and placed it, for the future, on a new basis. As regards personal estate, however, and chattels real, (which are considered as personalty,) and also as relates to copyholds, it would be premature to consider fully, in this place, the law of testamentary dis- position (?/) ; and we shall confine oiu' present inquiries, for the most part, to the nature of that right as it affects estates of fi-eehold duration and tenure ; or, as it is com- monly expressed, the law of devises. To obtain a clear idea of this subject, it will be desirable to consider under separate heads : — I. The power of devise itself, — to what person it belongs, and to what estates and interest it applies. II. The solemnities Avith which the will containing a devise must be executed, and how it may be revoked or revived. III. The rules of construction to which devises are subject. IV. Their operation in con- veying or limiting real estate. I. As to the power of dcAdsing, [it seems sufficiently clear that, before the Conquest, lands were devisable by will (z). («) Tacit, de Mor. Germ. 20. vide post, bk. ii. pt. ii. c. vii. ; and {x) Vide sup. p. 16(j ; 2 Bl. Com. as to devises of cojujhold, post, c. 13. XXII. (i/) As to wills of personal estate, (z) Wright's Ten. 172. 600 BK.II. OF EIGHTS OF rROPERTY. — PT. I. THINGS REAL. [But upon the introduction of the military tenures, the restraint of devising lands natui-allj took place as a branch of the feudal doctrine of non-ahenation without consent of the lord.] So that [by the common law of England, after the Conquest, no estate gTeater than for term of years could be disposed of by testament (6), — except only in Kent and in some antient boroughs, and a few particular manors, where their Saxon immunities by special indul- gence subsisted (c). And though the feudal restraint on alienation by deed vanished very early, yet this on wills continued for some centimes after ; from an apprehension of infirmity, and imposition on the testator in extremis, which made such devises suspicious (f/). Besides, in de- vises there was Avanting that general notoriety and public designation of the successor, which, in descents, is apparent to the neighbourhood ; and which the simplicity of the common law ahvays required in any transfer and new acquisition of property. But when ecclesiastical ingenuity had invented the doc- trine of uses as a thing distinct] fi^om the legal estate (fi), [uses began to be devised very frequently (/) ; and the de- visee of the use cordd, in Chancery, compel its execution. For it is observed by Gilbert (^), that, as the Popish clergy then generally sat in the Court of Chancery, they consi- dered that men are most liberal when they can enjoy their possessions no longer ; and therefore at their death would choose to dispose of them to those who, according to the superstition of the times, could intercede for their happiness in another world.] But by the effect of the statute 27 Hen. VIII. c. 10, these uses afterwards became legal estate, which Avas not devisable ; and this [might haA-e occasioned (6) 2 Inst. 7. (vol. ii. p. 373) is, " a thing distinct (c) Litt. s. 167; Co. Litt. 111. from the /awrf;" which scarcely con- Vide Rob. Gavel. 235. veys the idea intended. {d) Glan. lib. 7, c. 1. (/) Plowd. 414. (e) The expression of Blackstone {g) On Devises, 7. CHAP. XX. — OF DEVISES. 601 [a great revolution in the laAv of devises (Ji), had not the Statute of Wills been made about five years after — viz. 32 Hen. VIII. c. 1 (explained by 34 & 35 Hen. VIII. c. 5), — which enacted, that all persons being seised in fee simple (except feme coverts, infants, idiots, and persons of non- sane memory,) might by wiU and testament in writing devise to any other person, (except to bodies corporate,) two-thirds of their lands tenements and hereditaments held in chivalry, and the whole of those held in socage ;] which afterwards, [through the alteration of tenures by the statute of Charles the second, amomited to the whole of their landed property, except their copyhold.] A devise under these statutes took effect, not only upon legal, but upon equitable estate ; which indeed will ]3ass Lmder any form of conveyance applicable to the former species of interest. The statutes did not, however, apply to the chattels of the testator, Avhether consisting of temis of years in land, or of chattels personal, for these might pass by will before ; as we shall have occasion to show more particularly in a subsequent part of the w^ork {i). And even Math respect to a freehold interest, a devise mider these statutes Avas inoperative, unless it belonged to the testator at the time of executing the Avill. So that lands acquired after the date of the devise, were incapable of pass- ing imder it ; and if the testator Avas desirous of including them in his testamentary dispositions, a ncAv will or codicil, or a re-execution of the existing will, was required for the purpose {k). It may also be remarked, as to the persons capable of becoming devisees, that the statutes made an express excep- tion of corporations, Avhich was done to prevent the exten- (h) See Butler and Baker's case, v. Bokeiiham, ubi supra; Langford 3 Rep. 25 ; Arthur v. Bokenham, 11 v. Pitt, 2 P. Wms. 629 ; Marston v. Mod. 148 ; Wyiulham v. Chetwynd, Roe, 8 Ad. & El. 14. But after- Burr. 420. acquired personal estate has been (i) Vide post, bk. II. pt. II. c. VII.; always capable of passing under a 2 Bl. Com. 374. will already made. {k) 2 Bl. Com. 378. See Arthur G02 BK.II. OF RIGHTS OF PROrERTY. — PT.I. THINGS REAL. siou of gifts in mortmain (/). xVfterwards, indeed, it was held, that a de\'ise to a corporation for a charitable use was vans, as operating in the natm-e of an appointment, rather than a beqnest(m). But we have had occasion in another place {n) to advert to the statute 9 Geo. II. c. 36, by which devises to charitable uses are now generally made void ; and which has consequently rendered that decision, and some others of the same tendency, less material (o). Such Avas the state of the law vAi\v respect to the poAver of devising (or transmitting real property by Avill), at the time of the passing of the new act, 7 Will. IV. & 1 Vict, c. 26 ; and thus it still stands -sArith resjiect to aU Avills made before 1st January, 1838 : but as to all othei's, the sta- tute just mentioned has repealed the former enactments, making, in lieu of them, a ncAV and more ample proAasion. It enacts [p), that it shall be laAA-ftd for all persons — except man-ied Avomen (^), and infants under tAA^enty-one (r) — to dispose by ahU of aU their real and personal estate (5), either at law, or in equity, to AAdiich they shaU be entitled at the time of their deaths, and AA-hich, but for such disposition, (/) 2 Bl. Cora. 375. the age of twenty-one is attained, {m) Ibid. see Vin. Abr. Devise (G.), pi. 20. (jj) Vide 8up. p. 466. Before this Act, infants might make (o) 2 Bl. Cora. 375. a will of their personal estate at (p) 7 Will. 4 & 1 Vict. c. 26, s. 1. eighteen, and, according to .some ((/) Sects. 7, 8. The 8th section authorities, still earlier. 2 Bl.Com. provides that no will by a married 497; Harg. Co. Litt. 89, n. (6); woman shall be valid, except such Hearle v. Greenbank, 3 Atk. 709. as might have been made by a mar- {s) " Real estate" is to be under- ried woman before the passing of stood in this Act as extending to all the Act. Before the Act, a married hereditaments of whatever tenure, woman could not in general dispose and whether corporeal, incorporeal, of land by will ; (see Forse and or personal, and to every estate, Ilembling's case, 4 Rep. 60 b;) but right, or interest therein, other than might do so under a poM'gr expressly a chattel interest; and "personal conferred on her for the purpose. estate" to all property whatsoever See Johns u. Dickinson, 8 C. B. 93 }■, which by law devolves upon the as to what is due execution of such executor or administrator. (7 VA'ill.4 a power. & 1 Vict. c. 26, s. 1.) (/■) As to the precise time when CHAP. XX. — OF DEVISES. 603 would pass to the heii* at law or to the personal represen- tative ; and it expressly extends the same power to their estates piir autre vie, and to all their contingent, executory, or other fxiture interests, and even their rights of entry upon land : which latter subject was previously considered as in- capable of being debased ( i). The power is also expressly extended to after-acquired lands, by a pro\dsion that all reaTand personal estate, to which the testator is entitled at the time of his death, shall pass, notwithstanding that he may become entitled to the same subsequently to the execution of his will (u). And it is fiu*ther to be remarked, as to the person capable of taking by devise, that there is no exception in this Act (as under the former statutes) of corporations ; so that a devise to a body corjjorate will now be valid ; subject of course to the enactments of the Statutes of Mortmain, by which coqjorations are required to obtain the crown's licence^ to enable them to become the holders of land (a;) ; and subject also to the prohibition of 9 Geo. II. c. 36, as to a de^dse to charitable uses. On the other hand, though no exception is made by the Act Avith regard to the power of devising, except in the case of infancy or coA'erture, we must of course understand the exception to be tacitly added which would be introduced by the general rules of law, in respect of idiots, insane persons, and others laboui'ing under personal incapacity to aliene ( y). II. With respect to solemnities. When the Statute of Wills (32~ITen. VIII. c. 1) had for the first time given efficacy to devises, innumerable frauds and peijuries were quickly introduced (z); which can excite no sm^rise when Ave consider that l^are notes, in the handAAaiting of another person, then l^ecame good A^ills Avithin the statute, if only (0 SceDoev.Tomkinson, 2 Mau. Ad. & El. 14. &Sel.l65;Iloei'. Jones, 1 II. B1.30; (j-) Vide sup. p. 460. 3 T. R. 88 ; Goodi-ight v. Forrester, {y) Vide sup. p. 480. 8 East, 552. (?) 2 Bl. Com. 37G. {)() Sect. Z. Marston v. Roe, 8 604 BK. II. OF RIGHTS OF FROrERTY. — FT. I. THINGS REAL. published as such ; that is, declared by the testator to be intended to operate as his will and testament (a). For ex- cept publication (b), no other ceremony had been essential to a A\aitten mil of personalty, before this statute passed ; and the statute, itself, prescribed no particular solemnity in reference to a devise of real estate, except that it required the -wills to be in writing. [To remedy which, the Statute of Frauds and Perjuries, (29 Car. II. c. 3,) directed that all devises of lands and tenements should not only be in -svi-iting, but signed by the testator, or some other per- son in his presence, and by his express direction (c) ; and shoidd be subscribed, in his presence, by three credible ■VA^tnesses (d). And a solemnity nearly similar was requi- site for revoking (e) a devise by -\ATiting ; though the same might be also revoked by the burning, canceUing, tearing, or obliterating thereof by the de^sasor, or in his presence, and mth his consent], if done animo revocandi: as likcAvise, impliedly, by any new modification of the interest of the devisor, in the estate devised (/) ; [or by such a great and entire alteration in his circumstances as arose from mar- riage and the birth of a child {g),'] or, m case of a woman, marriage only(/«). In the construction of the Statute of (a) 2 Bl. Com. p. 376. Atk. 802 ; Williams v. Owens, 2 (6) As to this requisite, see Doe Ves. jun. 599 ; Langford v. Little, V. Sir F. Burdett, 4 Ad. & El. 14. 8 Ir. Eq. R. 546; see also the 4th (c) As to signing by a mark, see Real Prop. Rep. p. 24. Baker v. Denning, 8 Ad. & El. 94. {g) 2 Bl. Com. 376. (See Re Cady- (ri) See Roberts D.Phillips, 4 Ell. wold, 1 Swab. cS: Trist. 34.) Black- & Bl. 450. stone (vol. ii. p. 502) observes, that (e) It may be remarked here, this kind of revocation bore some that a will is always capable of analogy to the Roman rule, which revocation, though it purport in the set aside testaments as inofficious, if strongest words to be irrevocable ; any child was wholly passed by for to hold the contrary, says Lord without assigning a sufficient reason. Bacon, would be for a man to de- And to this rule he is inclined to prive himself of that which of all attribute the vulgar error as to the other things is most incident to necessity of leaving the heir one human condition ; and that is, al- shilling, or some amount of legacy, teration or repentance. (Bac. Elem. in order to cut him off efTectually. c. 19.) (A) Forse and llembling's case, 4 (/) See Sparrow v. Hardcastle, 3 Rep. 60 b. CHAP. XX. — OF DEVISES. 605 Frauds, it was adjudged [that the testator's name, Avritten Avith his own hand at the beginning of his will, as " I John Mills do make this my last will and testament," was a suf- ficient signing], if so intended by the testator (z). It was also [determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they might do it at different times (^); but that they must all subscribe their names as witnesses in his pre- sence, lest by any possibihty they shoiild mistake the instrument (/). And in one case, determined by the Court of King's Bench (w), the judges were extremely strict in regard to the credibihty, or rather the com- petency, of the witnesses ; for they would not allow any legatee,] nor, by consequence, a creditor by simple con- tract (n), [where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to vnsh. the establishment of the will. For, if it were established, he gained a security for his legacy (or debt) from the real estate ; whereas otherwise,] as the law then stood, [he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last ill- ness), and if, in such case, the testator had charged his real estate with the payment of his debts, — the whole will and every disposition therein, so far as related to real pro- perty, was held to be utterly void. This occasioned the (i) 2 Bl. Com. by Chitty, 37G, n. 740. (6). (m) Holdfast v. Dowsing, Stra. (A-) Freem. 48C ; 2 Ch. Ca. 109; 12o3. But see to the contrary, Pr. Ch. 18J. Wyndliam v. Chetwynd, Burr. 414. (/) Longford v. Eyre, 1 P. Wnis. („) Vide sup. p. 431'. GOG BK. II. OF RIGHTS OF TROrERTY. — RT. I. THINGS RE^U.. [statute 25 Geo. II. c. G, wliich restored both the com- petency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby remo\dng all possibility of their interest affecting their testimony. The same statute like^\ise established the competency of cre- ditors, by directing the testimony of all such creditors to be admitted, — leaving their credit, (like that of all other Aviitnesses,) to be considered on a \aeAv of all the circum- stances, by the court and jiuy before whom such will should be contested.] Such is still the law as to the execution and attestation required for all A^ills made before 1st January, 1838 (o) ; but the provisions pre^dously in force are, by 7 Will. IV. & 1 Vict. c. 2G, repealed as to all Avills made aftci' that date(p); and it is now enacted (9-), that no Avill, — Avith the exception of those made as to j)ersonal estate by sol diers a nd seamen in certain cases, as proA-ided for by form er stat utes ( r), — shall be ^'aUd, unless it be in AAT.-iting, and signed at the foot or end thereof {s), by the testator, or some other person, in his presence, and by his direction ; such signatui-e being also made or acloiowledged by him, (0) 7 Will. 4 & 1 Vict. c. 26, s. provisions have been made as to tlie 34. By this section, every will re- wills, wages and effects of deceased executeu, or republishea or revivea merchant seamen, viz. by 17 & 18 by any codicil, shall, for the purposes Vict. c. 104, ss. 194 — 204. of the Act, be deemed to have been {s) As to the position of the sig- niade at the time when so re-exe- nature, it is by 15 & 16 Vict. c. 24, cuted, re-published, or revived. (See made sufficient if it be placed at or Doe V. Walker, 12 Mee. & W. 591 ; after or following, or under, or beside, Winter v. Winter, 5 Hare, 306.) The or opposite to the end of the will, in statute extends to wills made before such manner that it shall be ap- 1st January, 1838, if altered* subse- parent on the face of the will, that qnently to that date. (Crokeri). Ilert- the testator intended to give effect, ford, 4 Moore's P. C. Cases, 339.) by such signature, to the writing {p) 7 Will. 4 & 1 Vict, c.26, s. 2. signed as his will ; but the signature (5) Sects. 9, 11, 12. is not sufficient to give effect to any (r) Statute of Frauds, 29 Car. 2, t!ds-^osmor\ underneath or following \x, c. 3 ; 11 Geo. 4 & 1 Will. 4, c. 20. or inserted after the signature is made. (See Shelford on Wills, 77 ; a work (As to this provision see Re Peach, which contains a very full and useful 1 Swab. & Trist. 138 ; Trott v. Skid- exposition of the New Will Act.) move, 2 Swab. & Trist 12.) Since 7 Will. 4 & 1 Vict. c. 26, new CHAP. XX. — OF DEVISES. 607 in the presence of two or more witnesses present at the same time, and such witnesses attesting and subscribing the will in his j^resence ( t). Where these requisites, how- ever, are complied A\dtli, no other is now imposed by law (m) ; and the statute expressly enacts, that no publica - ti on other than is implied in the execution so attest ed, shall in future be necessary ". The former provisions Avith respect to the competency of witnesses ha\dng an interest, are also repealed as to A\-ills taking effect under the new law (a:) ; and the new enact- ments on this subject are, first, that in case of the incom- petency of any attesting witness, the will shall not, on that account, be invalid ; secondly, that any beneficial gift or appointment by the "will, to an attesting mtness, or to the husband or Avife of an attesting witness, (except a charge for payment of debts,) shall be void, and the evidence of the witness admissible ; thirdly, that where land is charged by the will with payment of debts, and the creditor or hus- band or wife of the creditor, is an attestmg witness, such witness shall nevertheless be competent ; fourthly, that no person shall be incompetent as a witness, on account of his being an executor of the will. These enactments, how- ever, are now of the less importance, as by the later statutes of 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99, the objection to a witness on the ground of Interest, (which once applied (<) As to attestation, see Ilott v. («) Appointments hy will under a Genge, 4 Moore's P. C. Cases, 265 ; power are to be executed and attested In re William Frith, 1 Swab. & in the same manner with other wills; Trist. 8 ; Charlton v. Hindmarsh, even where other solemnities have ib. 433 ; Re Drummond, 2 Swab. & been prescribed by the donor of the Trist. 8. It may be as follows : power (7 Will. 4 & I Vict. c. 26, s. " Signed, published and declared by 10) ; a provision parallel to which " the said A. B., the testator, as and has been since made by 22 & 23 " for his last will and testament, in Vict. c. 35, s. 12, as to appointment " the presence of us, present at the by deed under a power; vide sup. " same time, who at his request, in p. 557. n. (a). " his presence, and the presence of (ar) 7 Will. 4 & 1 Vict, c, 26, ss. " each other, have hereunto sub- 14, 15, 16, 17- " scribed our names as witnesses." ^ 608 BK.II. OF RIGHTS OF PROPERTY. PT. I, THINGS REAL. generally in om- laAv, and not merely in the instance of wills,) is in all cases taken away (3/). As to revocation, also, the former law is altered by the New Will Act; and it is proAdded(c), that every mil taking effect vmder this statute shall be revoked by the marriage alone either of a testator or of a testatrix— rniless such Avill Avas made in exercise of a poAver of appointment, and in a case Avliere the estate wovdd not have passed, in defaidt of appointment, to his or her representatives : but that, on the other hand, no will " shall be revoked by any " presumption of an intention on the ground of an alter- " ation in circumstances («)," or in any other manner, except by man-iage as aforesaid, or by another wall or co- dicil, or some writing of revocation executed like a Avill ; or except by burning, tearing, or otherwise destroying the original AviU (animo revocandi), by the testator or some person in his presence and by his direction (b) ; and that, with the exception of such acts as these, no act whatever subsequent to the execution of the avlU shall prevent its taking effect on any estate which the testator shall have power to dispose of at his death (c). With respect to obli- teration or other alteration made after execution (tZ), it is in like manner pro\dded that they are to have no effect (where the original meaning can still be deciphered) imless executed with the same ceremonies as the Avill itself; though it will be sufficient if the signature of the testator, and the subscription of the vsdtnesses, be made opposite or near the part altered, or at the foot or end of some memo- randum written on the will, and referring to the altera- {y) There is, however, in both of Kendall, 10 W. R. 69. these statutes, a proviso that this (i) Sect. 20. See Francis v. shall not be taken to repeal the Grover, 5 Hare, 39 ; Price d. Powell, enactments of 7 Will. 4 & 1 Vict. 3 H. & N. 341 ; Elms v. Elms, 1 above referred to ; and consequently Swab. & Trist. 155. a gift or appointment to an attesting (c) 7 Will. 4 & 1 Vict. c. 26, s. 23. witness, or to the husband or wife of (rf) See as to alterations or era- an attesting witness, will still be sures, Gann v. Gregory, 22 L. J. void. (Ch.) 1059 ; Re James, 1 Swab. & («) 7 Will.4 & 1 Vict.c.26, s. 18. Trist. 238. Et vide sup. p. 505, (a) Sect. 19. See De Pontes v. n. (e). CHAP. XX. — OF DEVISES. G09 tion (e). And so when a will is once rev oked, it is not "to be revived othe rwise than by re-e xecution of t he origi nal, or by a codici l duly executed and showing an intention of reviva l ( f). -»^ t y 1 ^-^yi ^.i^-^^-l ^ ■^ ** ' i%fc ^ ^^"^ III. With respect to the construction of devises, they ' 7 7 ,t^S,fJr, are subject, in a great measiu-e, to the same rules of inter- pretation as apply to conveyances by deed (^) ; but as in making a will, a party is supposed to be inops consilii (h), there are instances in w^iich the law Avill carry his intended limitations into effect, though the words used woidd be in- sufficient or improper for the jjui-pose in a deed (i). Thus it was held — even before the late act 7 Will. IV. & 1 Vict, c. 26, rendering the fee devisable without words of limita- tion (k), — that a fee might be conveyed by devise [without w^ordsof inheritance (/), and an estate tail without words of procreation (m),] provided that other words were used suffi- cient to indicate the design ; though, in conveyances by deed, the case, as we have seen, is otherwise. So an estate may pass vmder a mil [by mere implication, without any express words to direct its cours e. As where a man devises lands to his heir at law, after the death of his wife. Here though no estate is given to the wife in express terms, yet she shall have an estate for life by imphcation (w); for the intent of the testator is clearly to postpone the heir, until after her death ; and if she does not take it, nobody else can. (e) 7 Will. 4 & 1 Vict. c. 26, 386; Slaters. Dangerfield, 15 Mee. s. 21. & W. 263. As to the construction (/) Sect. 22. See as to revival, of wills in reference to the descrip- Andrews D.Turner, 3 Q. B. 177 ; In tion of the devisee, see Doe v. His- the goods of William Brown, 1 cocks, 5 M. & W. 363; Doe «. Rouse, Swab. & Trist. 32. 5 C. B. 422. (g) See Clayton v. Lord Nugent, (k) Vide post, p. 611. 13 Mee. & W. 200. As to these (l) Vide sup. p. 242. rules of interpretation, vide sup. p. (m) Doe v. Bannister, 7 Mee. & 507. W. 298; Lewis v. Puxley, 16 Mee. (/i) 2 Bl. Com. 172. & W. 733 ; vide sup. p. 250. (0 Co. Litt. by Butler, 272 a, n. (n) II. 13 Hen. 7, 22; 1 Vent. 376. (1); Doc V. Roberts, 7 Mee. & W. VOL. I. R R 610 BK.ir. OF RIGHTS OF niOPErvTY. — VT.l. THINGS REAL. [So also where a devise is of Blackacre to A., and of Wliiteacre to B. in tail, and if they both die without issue, then to C. in fee: — here A. and B. have cross-remainders by implication ; and on the failure of cither's issue, the other or his issue shall take the whole, and C.'s re- mainder over shall be postponed till the issue of both shall fail (o). But where any implications are alloAved, they must be such as are necessary, or at least highly probable, and not merely possible implications (p).] There is also this difference between deeds and wills in point of con- struction, that supposing a will to contain two inconsistent clauses, that which comes last in order shall prevail {q) ; though in a deed (as we have seen) the preference is due to that which comes first (r). A will also is subject to a less strict rule, than a convey- ance by deed, in respect of the description of the thing granted. Thus, if I convey my house by deed, mthout any specification of land, we have seen that no land can pass, except the orchard, garden, and curtilage {s) ; but the question Avhat shall pass by the devise of a house (or of a house " with the aj^purtenances") is purely a question of intention, to be determined, like other points of con- struction, by the tenor of the Avliole ^\^)^. A devise in either foi-m may, under special circumstanc^es, have the effect of passing adjacent land or buildings {t). There are also some particular points of construction, established by parhamentary enactment, with regard to devises. For the former state of the law iipon these (o) Freem. 484. As to cross-re- {r) Vide sup. p. 509. mainders, vide sup. p. 358. {s) Vide sup. p. 492. (p) Vaugh. 262. (f) 2 Saund. by Wms. 401, n. (2). {q) There is some contrariety in See also the following cases on the the books as to this point ; but the construction of wills, in reference doctrine as laid down in the text ap- to the description of the tlihig de- pears to be supported by the better vised : Doe v. Cranstoun, 7 Mee. & authorities. (See Co. Litt. 112 b; W. 3 ; Doe d. Lightfoot, 8 Mee. & Plowd. 511, /« 7ioa'«; Doe d. Spencer W. 553 ; Doe t». Earles, 15 Mee & V. Pedley, 1 Mee. & W. 677.) W. 450. CHAP. XX. — OF DEVISES, 611 points, as settled by judicial decisions, being deemed un- satisfactory, it was thought fit in 7 Will. IV. & 1 Vict. c. 26, before referred to, to regulate them for the future upon different principles. The new statute, however, it must be recollected, does not extend to Avills executed before 1st January, 1838, which consequently remain sul)ject, in respect of the same questions, to the former rides of interpretation. The points to which we refer are princi- pally as follows. 1. As the dispositions made by a testator cannot take effect, and are not intended to take effect, till afber his death, it has often become a question whether in his de- scription of the property devised, or of the persons in whose favour he devises, he shall be considered as refer- ring to the state of things which exists when he executes his "svill, or to that which may exist at the time of his death. As to bequests of personal estate, the rule has always been, that the Avill speaks as at the time of death : but in de^nses of the realty, the opposite construction formerly obtained ; and the will was held to speak, in general, as at the time of its execution (?<). But the new statute has now assimilated the construction of devises upon this point, to That of personal bequest ; for it provides, " that every " will shall be construed, with reference to the real estate " and personal estate comprised in it, to speak and take " effect as if it had been executed immediately before the " death of the testator, unless a contrary intention shall " appear by the wdll(:r)." 2. Though (as before observed) an estate in fee was always allowed to pass by devise, AA-ithout apt words of inheritance, provided there were other expressions to show the testator's intention to confer a fee, yet, prior to the late Act, a long train of judicial decisions had established (m) See Lomax v. Holinden, 1 (r) 7 Will. 4 & 1 Vict. c. 26, s. 24. Ves. sen. 295 ; Pow. Dev. 307, (n.), See O'Toole v. IJrowne, 3 Ell. & Bl. by Jarmnn ; King i'. Bennett, 4 Mee. 572. & W. 36. R P. 2 612 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REiVL. that a mere devise of house or land would not suffice to indicate that intention, but would confer only an estate for life. Thus, if I were seised in fee of a house at A., and devised my house at A. to B. and his heirs, or devised it to him with equivalent Avords, expressive of an intention that he should take my whole estate therein, the house would pass to him, in either case, in fee ; but if I devised to him my house at A., without adding- and his heirs, or iising such other equivalent words as above mentioned, he would take an estate in it for his life only (y). This rule had always given much dissatisfaction, as estabhshing a construction contrary to that which common sense pre- sumes to be the real intention of the party (z) ; and by the new statute it is accordingly proAdded, " that where any " real estate shall be devised to any person without any " words of limitation, such debase shall be construed^to " pass the fee-simple, or other the whole estate or interest " which the testator had power to dispose of by will, in " such real estate, unless a contrary intention shall ap- *' pear by the will (a)." 3. In devises to trustees, it had been a general rule prior to the new Will Act, that though no words of in- heritance were used in the limitation to them, yet they shoidd take such an estate (even to the extent of the whole fee) as might be necessary to enable them to perform the purposes of the trusts ; but the question often arose, whether in particular instances they woidd take the fee, or a less estate, and if the fee, whether it would be determinable or not when the trusts were satisfied (b). But by this Act, a rule of construction is laid down, by which the subject Avill be hereafter governed ; it being pro\dded, " that where any " real estate (other than or not being a presentation to a " church) shall be devised to any trustee or executor, such («/) Roe V. Blackett, Cowp. 235; (h) See Doe v. Ewart, 7 Ad. & El. Silvey v. Howard, 6 Ad. & El. 253. QGQ ; Doe v. Edlin, 4 Ad. & El. 582 ; See Doe v. Fawcett, 3 C. B. 274. Barker v. Greenwood, 4 Mee. & W. (z) Dennev. Page, 11 East,C05,n. 429; Adams v. Adams, G Q. B. SGO. (a) 7 Will. 4 & 1 Vict. c. 26, s. 28. CHAr. XX. — OP DEVISES. 613 " devise sliall be construed to pass tlie fee simple, or other " the whole estate or interest which the testator had poAver ** to dispose of by wiU in such real estate ; unless a definite " term of years, absolute or determinable, or an estate of " freehold, shall thereby be given to him expressly, or by " implication (c)." And fiu'ther, " that where any real " estate shall be dcAdsed to a trustee, Avithout any express " limitation of the estate to be taken by such trustee ; and " the beneficial interests in such real estate, or in the sur- *' plus rents and profits thereof, shall not be given to any " person for life — or such beneficial interest shall be given *' to any person for life, but the purposes of the trust may " continue beyond the life of such person — such devise " shall be construed to vest in such trustee the fee simple, " or other the whole legal estate which the testator had *' power to dispose of by will, in such real estate ; and " not an estate determinable when the piu-poses of the *' trust shall be satisfied (c?)." 4. If, in the interval between the execution of a will and the death of the testator, one of the objects of his boimty dies, the devise to such party mil, by the general rule of law, lapse, that is, fail, and take no effect ; and the subject- matter of it vnll be considered as not disposed of by the will. This ride had, till lately, applied to all cases without distinction ; but where the party dying left children, it was sometimes attended with pecidiar hardship (e). For if there Avere a dcAase to A. and the heirs of his body, and he died before the testator, the gift Avas a^ oid by the effect of this rule, CA^en thoixgh he left issue ; and yet it was mani- fest that the children, as well as the parent, had been designed to take the benefit of the gift. So if a testator gaA^e his property among his own children, and one of them died before him, leaving issue, such issue Avould take nothing under the AA^ill, though the probability was, that this consequence could not have been intended. It is true (c) 7 Will. 4 & 1 Vict. c. 2fi, s. 30. (e) See the 4th Real Property (rf) Ibid. s. 31. lleiioit, pp. 73, 74. R R 3 614 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THIXGS REAL. that a testator had it always in his power to make a new disposition in favour of the children of a deceased de^-isee ; but either from negligence or ignorance of the law, or from other accidental causes, this was often omitted; and an alteration of the law itself, as applicable to cases of this description, was therefore thought desirable (^f). The ncAv Act accordingly provides, " that where any person to " Avhom any real estate shall be devised for an estate tail, *^ or an estate in quasi entail, shall die inthe lifetime of " the testator, leaving issue who woidd be inheritable " imder such entail, and any such issue shall be li\dng at " the time of the death of the testator — such debase shall " not lapse, but shall take effect as if the death of such " person had happened immediately after the death of the " testator, imless a contrary intention shall appear by^the ** will (^)." And fiirther, " that where any person, being " a child or other issue of the testator, to whom any real *' or personal estate shall be devised or bequeathed, for " any estate or interest not determinable at or before the *' death of such person, shall die in the lifetime of the " testator, leaving issue, and any such issue of such person " shall be living at the time of the deatb of the testator, — *' such devise or bequest shall not lapse, but shall take " effect as if the death of such person had happened im- " mediately after the death of the testator, unless a con- " trary intention shall appear by the will (/«)." In addi- tion to which enactments, and in connection with the subject of lapse, we may notice this further pro^dsion, in- troductory of a new rule, in cases where a lapse occurs, — " that, unless a contrary intention shall appear by the " will, such real estate or interest therein as shall be com- " prised, or intended to be comprised, in any devise^ in '' such will contained, which shall fail or be void by reason " of the death of the devisee in the hfetime of the tes- (/) See the 4th Real Property may he the ^ra?)f7r/;i7(f of the legatee. Report, p. 73. (Spc Re Parker, 1 Swab. & Trist, ig) 7 Will. 4 &- 1 Vict. c. 96, s. .32. 523.) {h) Sect. 33. Tlie "issue" left CHAP. XX. — OF DEVISES. 615 " tator, or by reason of sucli devise being contraiy to " law, or otherwise incapable of taking effect, shall be in- " clruiecl in the residuary devise (if any) contained in such " \\jJl (i)." 5. Under a devise by a testator, who has a lease for years, but no ireehold estate, — of " all my lands and tene- ments," the lease for years has been always allowed to passT^or there would otherwise be nothing for the will to operate upon. But this being considered as the only reason for such a construction, it was, on the other hand, a general rvde, that if a testator, using such words, had both lands in fee, and lands for years at the time, the lands in fee only would pass (/;). It is now, however, by the new Act pro- vided, " that a debase of the land of the testator, or of the l.^ " land of the testator in any place, or in the occupation of C " any person mentioned in his will, or otherwise described " in a general manner, and any other general de'S'ise which " would describe a customary copyhold or leasehold estate, " if the testator had no freehold estate which could be de- " scribed by it — shall be con.strued to include the customary " copyhold and leasehold estates of the testator or his cus- " tomary copyhold and leasehold estates, or any of them, " to which such description shall extend, as the case may " be, as well as freehold estates, unless a contrary intention " shall appear by the ^dll (/)." 6. In hke manner, where a party, having an estate in lands (which he is consequently competent to de\ase), is also entitled, by "virtue of a power conferred on him for the purpose, to appoint other lands by his last will and (f) 7 Will. 4 & 1 Vict. c. 26, s. 25. 92 ; Parker ». Merchant, 5 Man. & Tlie rule of law before the statute Gr. 498. passed was different as to real estates, (/) 7 Will. 4 & 1 Vict. c. 26, s. 26 ; hut the same as to personal. (See Wilson v. Eden, 5 Exch. 752. As Doe V. Underdown, Willes, 293.) to the case of freehold passing under (k) See Rose v. Bartlett, Cro. Car. a devise of leasehold, see Doe d. 293 ; Doe v. Williams, 1 II. Bl. 25 ; Dunning i'. Craiistoun, 7 Mee. & Thompson t;. Lawlcy, 2 Bos. & Pul. W. 3. 303 ; Knight v. Sclhy, 3 .Man. Bi Gr. 616 BK. II. or RIGHTS OF PROPERTY. — PT. I. THINGS REAL. testament, it was formerly the rule, that a general devise of his lands would operate only on those in which ho has the estate, and would not affect those subject to the power ; though it was otherwise if he expressly referred to the power, or if it appeared by other circumstances (as by his having no estate for the Avill to work upon), that he intended the subject of the power to pass (m). And such is still the rule where the power is special, and to be exer- cised only in favour of particular individuals or classes of persons ; but where it is general, and enables the testator to appoint to any person that he pleases, (which amounts in substance to an OAvnership,) the law is now altered by the new Will Act ; for it is thereby pro^dded, " that a " general devise of the real estate of the testator, or of " the real estate of the testator in any place, or in the " occupation of any person mentioned in his will, or " otherwise described in a general manner, — shall be con- *' strued to include any real estate, or any real estate to " which such description shaU extend (as the case may be), " which he may have power to appoint in any manner " he may think proper ; and shall operate as an execution *' of such power, unless a contrary intention shall appear " by the wdU(7^)." 7. By a rule of legal interpretation, at variance with the common apprehension of mankind, and founded upon reasons of a purely technical description, it had long been settled laAV, that the words dying without issue, (as where an estate of freehold or leasehold was devised to A., and upon his dying without issue, then over to B.,) in general imported an indefinite failure of issue ; that is, a failur e not merely at the death of the party whose issue were referred to, but at any subseci|uent period, however remote ( o). But (m) See Denn v. Roake, 5 Barn. of personal estate. As to the con- & Cress. 731. struction of the word " estate" in a {n) 7 Will. 4 & 1 Vict, c 26, s. 27. devise, see Sanderson v. Dobson, 1 The same section also contains a Exch. 141. similar provision as to appointment (o) See Fearno hy Butler, 47S, ^L^ **-pr CHiVP. XX. — OF DEVISES. 617 by the new Will Act, sucli words are, in futiu-e, to receive a more natural exposition ; it being enacted, " tliat in any " cie\'ise or bequest of real or personal estate, the words " ' die without issue,' or ' die without lea\dng issue,' or " ' have no issue,' or any other words which may import " either a want or failure of issue of any person in his life- " time, or at the time of his death, or an indefinite failure " of his issue, — shall be construed to mean a want or failure " of issue in the lifetime or at the death of such person, and " not an indefinite failure of his issue, unless a contrary *' intention shall appear by the will, by reason of such " person having a prior estate tail, or of a preceding gift, " being (without any impHcation arising from such words) " a limitation of an estate tail to such person or issue, or " otherwise (/?)." It is, however, provided, that the Act " shall not extend to cases where such words as aforesaid, *' import if no issue described in a preceding gift shall be " born, or if there shall be no issue who shall live to " attain the age or other^rise answer the description re- " quired for obtaining a vested estate by a preceding gift " to such issue." IV. As to the operation of devises in conveying and limitmg real estate, a mil of land [is considered by the courts of law, not so much in the nature of a testament, as of a conveyance, declaring the uses to which the land shall be subject (5'); "with this difference, that in other conveyances the actual subscription of the ^ritnesses is not 480, 9th edit. ; Doe v. Taylor, 10 the law admitted such a construc- Q. B. 718 ; Gee v. Mayor of Man- tion much more readily, in the case cliester, 17 Q. B. 737; Foster v. of a bequest of a term of years, than Hayes, 4 Ell. & Bl. 717; Bamford in that of a devise of the freehold. t>. Lord, 14 C. B. 708 ; Biss d. Smith, Fearne by Butler, 471, 9th edit.; 2 H. & N. 105. It is to be observed, Doe d. Cadogan v. Ewart, 7 Ad. & however, that such words would re- El. 648. ceive the opposite construction, if (p) 7 Will.4 & 1 Vict. c. 26, s.29. accompanied by any other expression (7) VVyndham t). Chetwynd, Burr. tending to limit the failure of issue 429. to tlie time of the party's death ; and 618 RK.II. OF RIGHTS OF TROrERTY. — PT. I. THINGS REAL. [required by law {q), though it is jirudent for them so to do, in order to assist their memory when li\dng, and to supjjly their evidence when dead ; but in de\dses, such subscription is absolutely necessary by statute, in order to identify a conveyance which in its nature can never be set up until after the death of the devisor.] By a de\dse, estates may be limite d Avith t he same effe ct as by a conveyance operating mid e r the Statute of Uses (r). Thus a man may effectually de\ase not only an estate in possession (that is, in possession immediately on the death of the testator when the will first takes effect) or in re- mainder, but a freehold infuturo, or a fee upon a fee, or any estate in defeasance of a prior estate of freehold, — all which limitations (as we have seen) may be effectually made by way of executory use, but not in a conveyance at the common law {s). So a man may de^vise to his Avife — as he may convey to her by way of use, — though his conveyance to her at common law woidd be inope- rative it). His devise too in all these cases wiW. be effec- tual though made by direct gift, and without reference to uses {u). Yet as a devise is considered to be in the natiu'e of a conveyance declaring uses, so uses are often expressly introduced into them ; and it has been the practice to intro- duce them in the same form as in conveyances under 27 Hen. VIII. c. 10, It has been doubted, hoAvever, whe- ther that statute has any effect in the case of a devise {x) : and though Avhere uses are expressly and formally de- clared by the will, it may often be inferable that the tes- tator had the statute in vicAv, and intended the conversion of the use into legal estate, according to its known mode of operation ; yet it is rather by force of his intention, than of the statute itself, that the legal estate, in such cases, woxdd seem to pass. (ry) Vide sup. p. 503. (0 Vide sup. p. 552. (r) 2 Bl. Com. 334i Arthur v. {u) 2 Bl. Com. 334.; Co. Litt. by Bokenham, 11 Mod. 15?. Butler, 272 a, n. (1). («) Vide sup. p. 550. (.i) Ibid. ; 1 Sand. Us. 196. CHAP. XX. — OF DEVISES. 619 A devise, by which any future estate is thus allowed to be limited, contraiy to tlie rules of the common law, is called an executory devise {z). And upon the same prin- ciple to which we had before occasion to advert, in the case of a springing or shifting use (a), it is a rule that no limitation capable of being considered as a remainder, shall ever be construed as an executory devise (6). All " exe- cutory devises" are also svibject, like springing and shift- ing uses, to the rule aga.inst peryetuitj/ (c). And therefore, until the New Will Act abeady oft;en referred to (c?), it was held that if a chattel (real or personal) were bequeathed to A., and upon his dying without issue, then to B., the limitation over to B. was void, as being too remote (e) ; for such words imported (as we have seen) an indefinite failure of issue. But in devises of the freehold, similarly worded, the objection of remoteness did not usually arise. For, in general, the law gave effect, in this case, to the limitation over, by considering the estate of the first takei* as amounting, by imphcation, to an estate tail ; a con- struction which was not admissible in the former case, by reason of their being no estate tail in a chattel (_/); and the ulterior estate, by consequence, as a remainder : which, as it might always be baiTed by the recovery of the tenant in tail, did not fall within the ride against perpetuity. By the express pro\dsion, however, of the new Will Act, the rule of interpretation as to the words dying without issue, on which the whole of these doctrines were founded, is now (as we have seen) itself abolished (g). (z) Fearne by Butl. 386, 9th ed. ; puted, in the case of a devise, from 2 Bl. Com. 172. the death of the testator, not the (a) Vide sup. p. 553. date of his will. (Ihid.) (&) See Fearne by Butl. 386, 394, (d) 7 Will. 4 & 1 Vict. c. 26. 525, 9th ed. ; Doe d. Evers v. Challis, (e) Fearne by Butl. 460. 9th ed. ; 20 L. J. (Q. B.) 113. Doe v. Ewart, 7 Ad. & El. 648 ; Doe (c) 2 Bl. Com. 173, 334; Fearne v. Duesbury, 8 M. & W. 531. by Butl. 430, 9th ed.; Co. Litt. by (/) 2 Bl. Com. 398; vide sup. p^ Butl. 271 b, n. (1), vii. 2. As to 287. perpetuity, vide sup. p. 560. Tlie (g) Vide sup. p. 616. period allowed for vesting is com- R R G 620 BK.II. OFRIGnTSOFrROrEETY.— rX.I. TTTINGS REAL. "VYitli respect to the operation of a devise, it remains only to remarli, tliat it vests in the devisee an actual free- hold by construction of law(A);£^^ng_sjmilar injhis respect to a conveyance under the Statute of U^es] but different from a descent, which vests in the heir no. com- plete estate, imtil lie has macle entry on the lands de- scended (i). We have now adverted to all the ordinary kinds of assurance. Among Avhich, the conveyances under the " Statute of Uses" and de^dses [are by much the most frequent of any ; though, in these, there is certainly one palpable defect, the want of sufficient notoriety ; so that purchasers or creditors cannot know, with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feudal method of conveyance (by giving cor- poreal seisin of the lands) this notoriety was in some mea- sure answered {j), as it Avas by [the old Saxon custom of transacting all conveyances at the county court, and enter- ing a memorial of them in the chartulary, or leger-book, of some adjacent monastery {k)\ ; but since the disuse of these methods, our transfers of land have been private; the inconveniences resulting fi"om which have been strongly felt, and more especially in the counties of York and Middlesex (/), where a guard has been consequently pro- -„^ vided against them by the statutes of 2 & 3 Anne, c. 4 ; ^ 6 Anne, c. 35 ; 7 Anne, c. 20 ,• and 8 Geo. II. c. 6 {m). ) (h) Co. Lift. Ilia. The devisee " the first, for the stars or mortgages may, however, by an express act of " made to Jews, in the Capitula de dissent, waive the devise, unless he " Jiuleeis, of which Hoveden has pre- has entered on the land. (Doe d. " served a copy." Winder V. Lawes, 7 Ad. & Ell. 212.) (/) The reasons of this are set (i) Vide sup. p. 432. forth in the preambles to the Regis- {j) Vide sup. p. 514. ter Acts mentioned in the text. (A) An antient method of si- (m) The provisions in these Acts milar character, though only of par- as to the forgery of registers of deeds, tial application, is also noticed by &c. are repealed by 24 & 25 Vict. Blackstone, viz., " the general regis- c.95, and a more general one enacted " ter established by King Richard by 24 & 25 Vict. c. 98, s. 31. CITAP. XX. — OF DEVISES. 621 These enact that a memorial of all conveyances and devises, in wi-iting, of lands of freehold teniu-e, in those counties, (but not including those of leases at rack rent, or for twenty-one years or luider, where the actual possession goes along with them,) may be registered in such manner as in those Acts directed ; and that every such conveyance shall be adjudged fraudulent and void against any sub- sequent purchaser or mortgagee for valuable considera- tion, unless such memorial thereof shall be registered before the registering of the memorial of the conveyance, under which such subsequent purchaser or mortgagee shall claim ; and that every such devise ,-^hall be adjudged fraudulent and void against any subsefuent purchaser or mortgagee for valuable consideration,' unless a memorial thereof be registered in such manner as in the Acts directed (w). The provisions of these Acts, however, have never been extended to any other part of England ; and " it has been doubted " (as remarked by Blackstone) " by " veiy competent judges, whether more disputes have not " arisen in those counties by the inattention and omission " of parties, than prevented by the use of registers." Other pro\dsions for the protection of purchasers' for valuable consideration against insecure titles, have never- theless been made in the last session of parliament, ap- plying, not to particular counties only, but to the whole of England, and are at present attended, in many quarters, with great and favoiuable expectation. This is not a con- venient place for entering more frdly into the subject, but it is one to which we shall shortly have occasion to return. (m) SeeL'Nevei). L'Neve, 1 Ves. dlesex, 7 Q. B. 156; Wollaston v. sen. 64; Tunstall v. Trappes, 3 Sim. Hakewell, 3 Man. & G. 297; Hall 301 ; Doe v. Allsop, 5 A. & E. 142 ; v. Warren (Dom. Proc), 10 W. Rep. Sumpter v. Cooper, 2 B. & Adol. p. 66. See also Christian's Black- 223; Queen v. Registrars of Mid- stone, vol. ii. p. 343 (n). 622 CK. II. OF PJGIITS OF morEKTY. — PT. I. THINGS KEAL. CHAPTER XXL OF EXTRAORDINARY CONVEYANCES, — OR THOSE BY MATTER OF RECORD. Having now completed our view of all conveyances of the ordinary class, wlietlier founded on common or statute law, we proceed next to tlie examination of convei^ances by matter of record: Avliicli (as formerly remarked) are in use on particular and comj)aratively rare occasions ; and which may therefore, by way of distinction from the former, be designated as extraordinary conveyances. These are, 1. Private acts of parhament ; and 2. Royal grants ; both of which, as connected but shghtly with the main body of the law, will be treated with brevity ; and the rather, because our method will lead us to omit, for the present, any ex- amination of the nature of the parliamentaiy and royal authorities on which they are respectively founded, — these subjects ha^dng both their appropriate place, under the division of the work which relates to public rights. I. Private acts of parliament (a) have been resorted to' as a mode of assiu'ance more fi'equently in modern than in antient times. [For it may sometimes happen that, by (a) As to private ants of parlia- 13 & 14 Vict. c. 21, s. 7, providing ment, vide sup. p. 71. And see 7 that all Acts for the future shall be Will. 4 & 1 Vict. c. 83, as to the public Acts unless the contrary shall deposit of plans and docjnients in be expressly declared therein ; and the case of private bills; lO&ll 21&22 Vict. c. 78, as to adminis- Vict. c. 69, 12 & 13 Vict. c. 78; as tering oaths before committees of to taxation and costs on private bills, House of Commons on private bills. en. XXI. — OF CONVEYAXCES BY MATTER OF RECORD. 623 [tlie ingenuity of some, and the blimclers of otlier prac- titioners, an estate is most grievoiislj entangled bj a multitude of residting trusts, springing uses, executory de- vises, and the hke artificial contrivances (Z>), — a confusion unknown to the simple conveyances of the common law, — so that it is out of the power of either the courts of law or equity to relieve the o'oTier. Or it may sometimes happen, that, by the stnctness or omissions of family settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointiu-e for a wife, or the like,) Avhich power cannot be given him by the ordi- nary judges either in common law or equity (c). Or it may be necessary, in settHng an estate, to secure it against the claims of infants, or other persons imder legal disabilities ; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the transcendant power of parliament is called in, to cut the Gordian knot; and by a particidar law, enacted for this very purpose, to unfetter an estate ; to give its tenant reasonable powers ; or to assure it to a piu-chaser, against the remote or latent claims of infants or disabled persons, by settHug a proper equivalent in proportion to the interest so baiTed. This practice was canned to a great length in the year succeeding the Kestoration, by setting^ aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usm-pation. And at last it proceeded so far, that, as a noble historian expresses it{d), every man had raised an equity in his o^wn imagination, that he (i) Blackstone (vol. ii. p. 344') " attempts to meet the contingencies also enumerates contingent remain- " of family settlements, and were ders ; but these were known to the " introduced long before the Sta- common law. " They were probably " tute of Uses." " considered encroachments on the (c) Relief against inconveniences " common law," say the Real Pro- of this kind may now, in some cases, perty Commissioners (Third Rep. be attained under the recent pro- p. 23), "but were certainly al- visions of 19 & 20 Vict. c. 120. " lowed by it. They were early (d) Lord Clar. Contin. 162. 624 BK.II. OF RIGHTS OF PROrERTY. — RT. I. THINGS REAL. [thoiiglit was entitled to prevail a<^ainst any descent, testa- ment, or act of law, and to find relief in parliament; wliich occasioned the king, at the close of the session, to re- mark (e), that the good old rules of law are the best security, and to wish that men might not have too much cause to fear that the settlements which they make of their estates shall be too easily unsettled, when they are dead, by the power of laarliament. Acts of this kind are, hoAvever, at present, carried on, in both houses, with great deliberation and caution ; parti- cularly in the House of Lords, where they are usually re- ferred to two judges, to examine and report on the facts alleged, and to settle all technical forms (/). Nothing also is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest in- terest in the matter; unless such consent shall appear to be perversely, and without any reason, withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by the Act. And a general sa^dng is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is so given or pur- chased, and who are therein particularly named ; though Jt hath been holden, that, even if such saving be omitted, the act shall bind none but the parties (^). A law thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance than as the solemn act of the legislatm^e. It is not therefore allowed to be a public, but a mere private statute ; it is not (e) Lord Clar. Contin. 163. judges. (May's Pr. of Pari. p. 595, (/) Whenever a private bill, in 3rd ed.) the nature of an estate bill, is (g) See 8 Rep. 138 a; Godb. 171 ; brought up from the Commons, it is vide Westby v. Kiernan, Ambl. 697 ; referred to two of the judges in rota- Provost of Eton v. Bishop of Win- tion, not being lords of parliament. Chester, 3 Wils. 483 ; Chapman v. But, except in special cases, no other Brown, 3 Burr. 1626. Commons' bills are referred to the CH. XXT. — OF CONVEYANCES BY MATTER OF RECORD. 625 [printed or publislied among the other laws of the session ; and it hath been reheved against, when olitained by fraudu- lent^ suggestionj( A).] Formerly, too, it was subject in every case to this flu^ther cEstinction, that though all public statutes are noticed by the court ex officio, no private one was entitled to judicial notice unless specially set foith and pleaded. And such is still the rule as to those passed up to 4th Feb. 1851, inclusive ; but by 13 & 14 Vict. c. 21, s. 7, it is noAv provided that every Act passed after that date shall be judicially taken notice of, imless the contrary be expressly provided and declared by the statute itself. And as to all private Acts, without distinction, it is to be observed, that they have in one respect the same notoriety as public ones; namely, that they are always [inrolled among the pubhc records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established.] II. Royal grants [are also matter of pubhc record (i). For as St. GermjTi says the excellency of the sovereign is so high in the law, that no freehold may be given to, nor derived fi-om the crown, btit by matter of record (j ). And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the royal grants must pass, and be transcribed, and in- rolled : that the same may be naiTowly inspected by the officers of the crown, who Avill inform the sovereign if any thing contained therein is improper, or unlawfrd to be granted. These grants, whether of lands, honours, liber- ties, fi'anchises, or aught besides, are contained in charters, or letters-patent, that is, open letters, literce jmte7ites; so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom ; and are (h) See Richardson v. Hamilton, Dig. 549. Cane. 8th January, 1773 ; M'Kenzie (i) Vide post, bk. v. c. xv. V. Stuart, Dom. Proc. 13th March, (j) Doct. and Stud. b. 1, d. 8. 1754 ; Biddulpli v. Biddulpli, 4 Cru. VOL. I. S S 626 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [usually directed or addressed by the sovereign to all sub- jects of the realm. And therein they differ from certain other letters of the sovereign, sealed also with his great seal, but directed to particular persons, and for particular purposes ; which, therefore, not being proper for public inspection, are closed up, and sealed on the outside, and are thereupon called \a'it& close, Uteres clauses, and are recorded in the close rolls, in the same manner as the others are in t\ie jjatetU rolls.^ The course of proceeding observed till of late with re- spect to the making out of a grant by letters-patent Avas in general as follows {k): — They were, first, to pass by bill; which was prepared by the attorney and sohcitor-general, in consequence of a warrant from the crown, and was then signed, (that is, superscribed at the top with the sovereign's own sign manual,) and sealed with the privy signet, which was always in the custody of the principal secretaiy of state; and then sometimes it immediately passed under the great seal, in which case the patent Avas subscribed in these words, " per ipsnm reginam, by the queen her- self" (/). Otherwise, the com-se was to cany an extract of the bill to the keeper of the privg seal, who made out a writ or warrant thereupon to the Chancery; so that the sign manual was the warrant to the privy seal, and the privy seal was the warrant to the great seal ; and in this last case the patent was subscribed, " per breve de privato sigillo, by wi'it of priAy seal"(w). But the practice is now greatly simplified by the statute 14 & 15 Vict. c. 82, which (after repealing a statute of 27 Hen. VIII. c. 11, on the subject) pro\ddes, that in every case Avhere any gift, grant or M^-iting whatsoever to be passed under the great seal would have before required a queen's bill or bills fi'om the offices of the signet and the privy seal {n) re- spectively, her INIajesty may, by warrant mider the royal {k) See 2 Bl. Com. 343. (w) By 14 & 15 Vict. c. 82, s. 3, (0 2 Rep. 17 b. the offices of clerks of the signet and (m) Ibid. ; 2 Iiist. 555. of the privy seal are abolished. CH. XXI. — OF CONVEYAXCES BY MATTER OF RECORD. 627 sign manual, addressed to tlie lord cliancellor, command him to cause letters-patent to be passed under the great seal according to such warrant; and that such warrant shall be prepared by the attorney or solicitor-general, and shall set forth the proposed letters-patent, and shall be countersigned by one of the principal secretaries of state, and sealed with the privy seal j and that it shall be lawful for the lord chancellor from time to time to frame such further regulations with respect to the passing of letters- patent under the great seal as to him shall seem expedient. Such is the general course as now established by this statute (o). Some letters-patent, writs, commissions or other instruments, however, might, before the statute, be passed under the great seal, by authority of the loi"d chan- cellor or otherwise, without passing through the offices of the signet and the privy seal ; and these are excepted by an express proviso from its operation. There are also grants or appointments [which only pass through cer- tain offices, as the admiralty,] the home office, [or treasury, in consequence of a sign manual without the confirmation of either the signet, the great or the privy seal ;] and to these of course the statute has no application (/?). [The manner of granting by the crown, does not more differ from that by a subject, than the construction of such grants when made. For, 1. A grant made by the crown, at the suit of the grantee, shall be taken most beneficially for the crown, and against the party : whereas the grant of a subject, is construed most strongly against the grantor {q). Wherefore it is usual to insert in the royal grants, that they are made, not at the suit of the grantee, but " ex speciali gratifi, certd scientia, et mero motu regince {aut regis) ;" and then they have a more liberal construc- tion (r),] as is also the case where they are made upon a (o) As to a patent for an inventiov, army, &c., see 25 & 20 Vict. c. 4. see 15 & 16 Vict. c. 83. {q) Vide sup. p. 509. {p) As to commissions in the (r) Finch, L. 100 j 10 Rep. 112. s s 2 628 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. valuable consideration (s). 2. [A subject's grant shall be construed to include many things besides what are ex- pressed, if necessaiy for the operation of the grant {t). Therefore in a private grant of the ]^rofits of land for one year, free ingress, egress and regress, to cut and cany aAvay those profits, are also inclusively granted (m) ;] and if a feoffment of land was made by a lord to his villein, this operated as a manumission (y) ; for he was otherwise im- able to hold it. [But the grant of the crown shall not enure to any other intent, than that which is precisely ex- pressed in the grant. As if land be granted to an alien, it operates nothing : for such grant shall not also eniu'e to make him a denizen, that so he may be capable of taking by grant (x). 3. When it appears, from the face of the grant, that the crown is mistaken, or deceived, either^ in matter of fact, or matter of law, as in case of false sugges- tion, misinformation, or misrecital, of former grants ; or if the ro}'al title to the thing granted be different fi'om what was supposed; or if the grant be informal; or if an estate be granted contrary to the rules of law ; — in any of these cases the gi-ant is absolutely void(y). For instance, if the crown grants lands to one and his heirs male, this is merely void ; for it shall not be an estate tail, because there want words of procreation, to ascertain the body out of which the heirs shall issue ; neither is it a fee simple, as in com- mon grants it woidd be {z), because it may reasonably be supposed, that the king meant to give no more than an estate-tail (a) ; the grantee is therefore (if anything) no- thing more than tenant at will (Z>).] And to prevent deceits being practised on the sovereign, [with regard to the value of the estate granted, it is particidarly provided by the statute 1 Hen. IV. c. 6, that no grant of the crown shall (s) 6 Rep. 6 a. (j/) Freem. 172 ; Gledstanes v. (0 1 Saund. by Wms. 323 a, Earl of Sandwich, 4 Man. & G. n. (6). 995. (u) Co. Litt. 56 a. (s) Vide post, bk. iv. pt. i. c. ix. («) Litt. s, 206. («) Finch, 101, 102. (a:) Bro. Abr. tit. Patent, 62; (6) Bro. Abr. tit. Estates, 33 ; tit. Finch, L. 101. Patents, 101; Dyer, 270 ; Dav. 45. en. XXI. — OF CONVEYANCES BY IVLVTTER OF RECORD. 629 [be good, imless in the grantee's petition for tliem express mention be made of the real vahie of the lands (c).] As to the mode of proceeding for calling into question the validity of the croA^Ti's grant, it is by ynit or action of scire facias at smt of the crown, issued at the instance, or at least l)y the sanction, of the attorney or sohcitor- general ; and any pomts of law or of fact arising thereon are determinable in the superior coiu'ts of common law, where also the judgment is to be given and execution awarded (c?). Lastly, we may observe with respect to the subject-matter of the royal grants, that — in connection ^ith the provision now usually made by parhament, for support of the royal dignity — restrictions have been placed by legislative enact- ment on the aHenation of the royal domains (e) ; the ge- neral effect of which (though subject to a variety of ex- ceptions) is to make such alienation unla^^'fld for any longer period than thirty-one years (/"). But the private propei*ty of the sovereign, that is, aU estates piu-chased by her ma- jesty, her heirs or successors, out of the privy piu*se, or coming to her or them, by descent or otlier\rise, from per- sons not being kings or queens of the realm, may be dis- posed of like estates belonging to private individuals (^). [And thus we have taken a transient view, in this and the fom- precedmg chapters, of a very large and diffusive subject, the doctrine of common assiu'auces] as applied to the principal division of things real, viz. land or corporeal (c) See also 34 Geo. 3, c. 75, s. 8, (/) See 1 Anne, st. 1, c. 7 ; 48 as to the survey, estimate, and cer- Geo. 3, c. 73, s. 3. tificate required, before a grant of {g) See 39 & 40 Geo. 3, c. 88 lands is made by the crown. (amended by 47 Geo. 3, st. 2, c. 24) ; (d) See on this subject the pro- 46 Geo. 3, c. 151 ; 48 Geo. 3, c. 73 j visions of 12 & 13 Vict. c. 102, s. 29, 52 Geo. 3, c. 161 ; 55 Geo. 3. c. 190. &c. See also Mr. Thomas's arrangement (e) See 1 Anne, st. 1, c. 7 ; 34 of Co. Litt. vol. i. p. 66, vol. ii. p. Geo. 3, c. 75 ; 48 Geo. 3, c. 73 ; 52 606, where the law relative to crown Geo. 3, c. 161 ; 55 Geo. 3, c. 190; grants is collected. 38 Geo. 3, c. 60; 42 Geo. 3, c. 116. 630 BK.II. OF RIGHTS OF rROPEIlTY.— PT. I. THINGS REAL. hereditaments of free tenure (h); [whicli concludes our ob- servations on the title to them, or the means by which they niay be reciprocally lost and acquu-ed (i). And we have before considered the estates which may be had in them ; Avith regard to their duration or quantity of interest, the time of their enjoyment, and the number and connection of the persons entitled to hold them (A),] What remains of the law relatiA'e to the rights of property in things real in general, (exclusive of the wrongs and remedies,) is the learning relative to land of copyhold tenure, and to incor- poreal hereditaments ; to the first of which we shall accord- ingly proceed in the next chapter. {h) Vide sup. p. 173. {k) Vide sup. p. 234. («■) Vide sup. p. 177. ( 631 ) CHAPTER XXIL OF COPYHOLDS. Our attention has been hitherto confined to hereditaments of free tenure; and these we have considered in reference to the estates that may be had in them, and the means by which those estates may be acquired or lost. But the reader will recollect, that lands may also be held by the b ase tenm^e of copyhold; a distinction of which some general notice has been abeady taken in a former chapter of this work (a). And we are now to examine copyhold lands in reference to the same considerations of estate and title, which have already engaged our attention in the course of the disquisition upon hereditaments of free tenure (5). As this, however, is in the nature of a mere variation upon that general scheme of real property, which has been already xmfolded as largely as the nature of an elementary work permits, oiu' notice of it may be com- pressed A\dthin proportionably narrow Hmits. It shall be directed chiefly to the following points : I. The general natiu*e of copyhold estates. II. Certain incidents peculiar to those estates, and not applicable to such as are of free tenure. And in what we shall have occasion to say on this subject, we are to be understood as speaking of copy- hold commonly so called ; ithe particular species of antient demesne, and the rest, not requiring in the present work a more particular notice than has already been bestowed upon them(c).J I. A s to tl^ general natm-e of these estates, and (a) Vide sup. p. 219. (c) Vide sup. p. 228. {b) Vide sup. p. 231-. 632 BK. II. OF RIGHTS OF rROPERTY. — FT. I. THINGS REAL. referring to what Ave before said of copyliolds, we may collect from it, first, that it is in manors only that they are to be found ; all cop}'hoIds being, from their na- tiu'e, necessarily parcel of a district of that description. Secondly, that it is by the immemorial custom of the particular manor, that the nature of the copyholder's interest must always be regulated. [In some rnanors, where the custom hath been to permit the heir to succeed the ancestor, the estates are called copyholds of inherit- ance ; in other, where the lords have been more vigilant to maintain their rights, they remain copyholds for life or years only(c?);] but though the interest of the copyholder may be thus in fee or for life, and consequently may par- take of the natiu-e of fi'eehold, in respect of the quantity of estate, it is nevertheless, for want of the remaining in- gredient, (^dz. that of free tenm-e, ) no freehold (e). Indeed, in every case of copyhold, the law still distinguishes be- tween the strictly legal, and the customary, estate ; for as regards the former, it supposes the seisin and fr'eehold of the land to be vested in the lord, of whose demesnes it is properly parcel (/); and the copyholder to be mere tenant at wiU ; but as he is tenant at will according to the custom, that is, to hold in fee, or for life, or years, (as the case may be,) it considers him as having a customary estate to that extent (^); and one that is fixed and per- manent in its nature, such as it is out of the power of the lord to defeat or encroach upon (A). In consonance with {d) 2 Bl. C. 97 ; 3 Real P. R. 14. parliament, whether the qualification It is to be observed, that if the cus- consists in copyhold or freehold torn has been to grant copyholds of lands (2 Will. 4, c. 45, s. 19); and inheritance, the lord may also grant copyholders are equally liable with a less estate ; for, omne majus in se freeholders to serve on juries (6 continet minus. (Co. Litt. 52 b.) Geo. 4, c. 50, s. 1). (e) Vide sup. p. 236. (//) Brown's case, 4 Rep. 21 ; Co. (/) See Dearden v. Evans, 5 Mee. Cop. 5, 58; Litt. s. 92, Trespass. By & W. 11. these authorities it appears that {g) Accordingly an estate of suf- copyholders were formerly ousted ficient value, now, confers a right of by their lords at pleasure. The re- voting at the election of members of formation of this was, in the opi- CHAP. XXII. — OF COPYHOLDS. 633 tlie latter view, wliicli assigns to the copyholder the cha- racter of a permanent tenant, he is deemed to owe fealty to his lord(i); which, as we have seen in a former place, is an obligation from which a mere tenant at will is always exempt (A). This complicated kind of interest, according to which [the same man shall, with regard to the same land, be at one and the same time tenant in fee simple, and also tenant at the lord's will,] seems to have arisen, in the manner formerly explained, from the nature of villen- age tenm'e(/). In the enumeration of the estates of which a copyhold may consist, it will be observed, that we have not included estates tail; it being only by particular custom that copy- holds are capable of being entailed (»«). For the statute De Donis is held not to extend to lands of that tenure : fr'om which it follows that a limitation to a man and " the heirs ofTiisT)ody," in a copyhold, will ordinarily create not an estate tail, but a fee simple conditional at common law {n). Not only in regard to the quantity of interest, (as being in fee, for life, or for years,) but in regard also to the various modifications to which that interest may be subject, the nature of a copyholder's estate in general resembles that of an estate held in fi-ee tenm-e(o). But as to this, there are some exceptions. Thus, — as to estates in dower nion of Chief Baron Gilbert, " by copyholders occurs. (Reeves's Hist. some positive law ;" (Gilb. Ten. Eng. Law, vol. iii. p. 312.) 15C, 161 ;) but it is generally sup- (i) Vide sup. p. 302, n. {t). posed to have been gradual. Upon {k) Ibid. These considerations the whole, the origin and progress seem to show that in treating of co- of this tenure are involved in sin- pyhold in that division of this work gular obscurity ; but the following which relates to estates at will, the notices of a very diligent investiga- arrangement of Blackstone is objec- tor of the Year Books, deserve at- tionable. tention. As early as the fourth year {I) Vide sup. p. 219. of Edward the first, we find mention {m) Co. Litt. CO b. ; 2 Bl. Com. oi custumarii tenentes. Towards tlie 113. latter end of the reign of Edward the (n) Doe v. Clark, 5 B. & Aid. 458. third, we find tenants per roll so/owr/Mi; (o) Co. Cop. 110; Gilb. Ten. 258; la volatile le seigniour ; and in the 2 B. & Ad. 440. reign of Henry the fifth, the term of 634bK.II. of niGHTS of property. — PT. I. THINGS REAL. and by the curtesy, — it is laid down tliat copyholds are not of common right subject to either of these (p) ; though they may each obtain, and in fact do very frequently obtain (the former under the name oi free-hencli), by the special custom of particular manors (K. IT. OF EIGHTS OF PROrERTY. —FT. I. THINGS REiVL. legal institutions of a civilized countiy " is wantonly aggra- " v-ated by the admission of several concurring systems, " serious mischiefs are likely to arise from the ignorance or " forgetfiilness of practitioners ; and even of judges, how- " ever carefully selected," Many inconveniences are also pointed out by the same learned persons, as incident to the nature of copyhold tenure, individually considered : of ■which the principal appear to be, the multiplicity and im- certainty of the different manorial customs on which it de- pends, — the check to agricultural improvement occasioned by the state of the law with respect to timber and minerals, — the liability to arbitrary fines, — the numerous payments due to stewards, on account of fees, — and the vexatious and oppressive character of heriots. The efforts of legislative reform have of late, therefore, been assiduously directed towards this branch of the law ; and have given birth at length to a statute, 4 & 5 Vict. c. .35, (amended by 6 & 7 Vict. 0723, 7 & 8 Vict. c. 55, 15 & 16 Vict. c. 51, and 21 & 22 Vict. c. 94, by which new regulations of great importance are introduced (7e).' These Acts apply them- selves to the following objects : first, to give effect to agree- ments for commutation of manorial burthens and restric- tions, and to improve, in some other respects, the tenure ; secondly, to facilitate enfranchisement. Tn promotion of these views they proceed to establish a Board of " Copyhold Commissioners {I) ;" and then enact, that the future rents, fines, and heriots, and the lord's right in timber, and also (if so expressed) in mines and minerals, maybe commuted by an agreement (m), which shall be com- (k) By 21 & 22^'ict. c. 94, a pre- and the Inclosure Commissioners vious Copyhold Act (IG & 17 Vict. are now consolidated. (See 14 & 15 c. 57) is repealed ; and by 23 & 24 Vict. c. 53.) By 25 & 26 Vict. c. Vict. c. 59, s. 4, some of the provi- 72, the powers of appointing com- sions in the Copyhold Acts men- missioners are continued until 1st tioned in the text are amended so August, 1867, and from thenceforth far as they relate to the universities. until the end of the then next ses- (Z) 4 & 5 Vict. c. 35, s. 2. With sion of parliament, this board, the Tithe Commissioners {m) 4 & 5 Vict, c, 35, s. 13. CHAP. XXII. — OF COrYIIOLDS. 651 pulsoiy on all parties interested in the manor, or in the lands held of the manor; provided the parties to such agreement be respectively interested in such manor and lands to the extent of thi-ee-foui-ths at least in value, and the number of the tenants be at least three-fourths of the whole : and also provided that all ecclesiastical and other corporations and patrons of livings, interested in such man- ner as mentioned in the Act, be parties to the agi'eement ; and that it be afterwards confirmed by the Copyhold Com- missioners (n). The Acts also authorize commutation to be, in like manner, made between the lord of the manor and any one or more of the tenants, whatever may be the amount of their respective interests ; so as to be binding, (after confirmation by the commissioners,) on those parties, and on all other persons connected with them in title : though, both in this case and the former, they requu'e notice to be given to persons next in remainder, rcA'ersion, or expectancy, of an estate of inheritance, — not being parties to the agreement, — and permit them to urge before the commissioners any objection to the proposed arrange- ment (o). These commutations may be made either in consideration of a conveyance of lands, or of any right to mines or minerals,— subject, so far as possible, to the same ixses and trusts as the lands commuted, at the time of commutation (p); or of any right to waste in the manor lands (7); or of a rent-charge, mth a nominal fine not exceeding 5s. on death or ahenation ; or of a fine simply, payable on death, ahenation, or at some fixed periods: and it is moreover provided, that after any commutation under the Act, or the execution of any deed for a voluntary commutation, the lands, although still remaining copy- hold for most purjDoses, shall cease to be subject to any custom ar}^ mode of descent ; or any custom relating to dower7 or freebench, or tenancy by curtesy, except as to persons previously married: and shall be Hable, in all (n) 4 & 5 Vict. c. 35, ss. 22, 23. ( p) 7 & 8 Vict. c. 55, s. 5. (o) Ibid. s. 52. (7) C cV 7 Virt. c. 23, s. 1. 652 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS RE^VL. that regai'ds those matters, to the same laAv as lands held in fi-ee^and common socage (r) ; witK a saving, hoAvever, of gavelkind in the county of~Kent, which is to rcmaui unaltered by the statute (s). Besides the provisions above noticed, the following im- provements of the present tenure are introduced. To re- move doubts before existmg on the subject, it is provided, that it shall be lawful for courts of equity to make par- tition of copyhold lands, as well as of lands of freehold tenm-e (t). To obviate certain inconveniences before at- tacliing to the practice of sun-enders, admittances and grants, it is enacted, that lords of manors, (or their stewards, or deputy stewards,) may hold customary courts, though there shoidd be no copyhold tenant at the time, or none should be present (u) ; and may grant lands to be held by copy, and also admit to lands to be held by copy, at any time or place (whether Avitliin or A\'ithout the manor), and without holding a court. And whereas before these sta- tutes it Avas in many cases necessary that a suiTender, or other act out of coiui:, shoidd be afterwards presented in court by the homage, or tenants of the manor there as- sembled (y), — it is provided that every copy of a smTender, mil or codicil delivered to the lord, steAvard or deputy, and every grant and admission, shall be forthmth entered on the court rolls of the manor ; and that such entry shall be taken to be an entr}^ in piu'suance of a presentment : and that it shall not be essential in any case to the validity of an admission, that a presentment shoidd be made of the siu*- render, or other matter in consequence of Avhich the admis- sion was granted ; Avith this proviso, howcA^er, that when by the custom of any manor, the lord is authorized, by consent of the homage, to grant parcel of the waste to be held by coj)y, the consent of the homage assembled at a (r) 4 & 5 'N'ict. c. 35, s. 79. couvt could not be held unless two {s) Ibid. s. 80. copybolders at the least were pre- (0 Ibid. s. 75. sent. (3 Real Property Rep. 20. («) Before the Act, a customary (v) 1 Walk, Cop. 79, SO. CHAP. XXII. — OF COPYHOLDS. 653 customary coui-t, duly summoned and held according to custom, sliall still be necessary. And Avliereas by the custom of some manors, a Kcence from the lord to aliene is required (iv), and in some of these cases lords "were re- strained, by the custom, from granting licences to their tenants to aHene their antient tenements, otherwise than by entireties, — it is enacted that licences to aliene parcels may now be granted, and such ahenation made accord- ingly (a:). Lastly, with the view of facilitating enfi'anchisement, the same Acts provide, in substance (for no minute detail of their pro\T[sions can be attempted in this place), that it shall be lawflil for the lord of any manor, Avhatever may be his interest therein, w itli consent of the commissioners, to enfi-anchise all or any of the lands holden of his manor, in consideration of such sum or sums of money, whether payable forthwith or at a fiitm'e time, as shall be agreed to be paid by the tenants whose lands are to be enfran- chised ( y) ; or in consideration of a conveyance of lands, or of a right to mines or minerals — subject as far as possi- ble to the same uses as the lands to be enii'anchised — (^r) ; or of the grant of a rent-charge on the land to be en- franchised (a) ; and that it shall be lawful for any tenant (whatever his interest), with the like consent, to accept such enfranchisement. And even independently and in the absence of any mutual agreement, it is now further enacted (h), that it shall henceforth be la^A-ful for any tenant or lord of any copyhold lands, to require and compel enfranchisement, — the consideration payable to the (w) 1 Watk. Cop. 287, n. (.r), (a) Where it is a corn rent -charge, 322, it is (by 21 & 22 Vict. c. 9*, s. 11) (x) 4 & 5 Vict. c. 35, s. 92. to be calculated on the same aver- {y) By the consent of the com- ages, and variable in the same missioners, the sum to be paid may manner, as a lithe commutation rent be charged on the land (21 & 22 charge (as to which, vide post, vol. Vict. c. 94, s. 21). in. pp. 91, 92). (?) 6 & 7 Vict. c. 2.3, s. 1 ; 7 & 8 (6) 15 & IG Vict. c. 51, s. 1 ; 21 & Vict, c. 55, s. 5. 22 Vict. c. 94, s. G. T T 7 654 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. lord in that belialf being ascertained, (unless the parties can agree,) under the direction of the copyhold commis- sioners. And such consideration shall consist, where the enfranchisement is at the instance of the tenant, of a given sum of money ; or where it is at the instance of the lord, of a rent charge, issuing out of the lands enfranchised : though, by agreement between the parties, either of these modes of compensation may in either case be adopted (c). It is also provided, that the expense of a compidsory enfranchisement shall be borne by the party (whether the lord or the tenant) who shall have required the same (d); that upon every enfranchisement (whether compulsory or voluntary) the land shall become in all respects of fi'ee- hold tenure, and cease to be subject to any custom of borough-English, or gavelkind (except gavelldnd in the county of Kent), or any other custom whatever (e) ; but that, on the other hand, no compulsory enfranchisement shall compulsorily affect any right to or in respect of mines or minerals ; or any right of fair or market, or in respect of game, fish, or fowl ; and that the pro\asions with respect to compidsory enfranchisement shall not extend to any copyhold lands held for life, lives, or years, where the tenant has not a right of rencAval {f ). (c) 15 & 16 Vict. c. 51, s. 7. chised (21 & 22 Vict. c. 94:, s, 24). (d) 15 & 16 Vict. c. 51, s. 30. (e) 15 & 16 Vict. c. 51, s. 34. Such expenses may be charged on (/) Sect. 48. the manor or on the land enfran- ( 655 ) CHAPTER XXIII. OF INCORPOREAL HEREDITAMENTS. An incoi-poreal hereditament, wliicli, according to the aiTangement formerly laid down (a), now presents itself in its turn for consideration, is in its mder sense any joosses- sion or subject of property, whether real or personal, capable of being transmitted to heirs, and not the object of the bodily senses ( b). But as there is scarcely any instance of a subject of this description in the class of things personal (c), — which almost invariably devolve to the executor and not to the heir, — the tenn of incorporeal hereditament is, in efiect, exclusively applied to the class o f tmngs reai ; and may m such case be defined as a r ight anne xed to, or issuing out of, or exercisable within, an h ereditament corporeal of th a t clas s (d). Thus a man may have a right of common of pasture for his cattle, or a (a) Vide sup. p. 175. distinct from estates in possessio?i) (6) Its definition in Blackstone in corporeal hereditaments (Hale, (vol. ii. p. 20) is " a right issuing Anal. ; 2 Sand, Us. 39) ; but the " out of a thing corporate (whether more convenient and juster arrange- " real or personal) or concerning, or ment is that adopted by Blackstone " annexed to or exercisable within and followed in the text. The larger " the same." use of the term confounds the estate (c) An annuity, descendible to a which may be had in the subject of man's heirs, is, however, an instance property, with the subject of pro- that occurs. (Co. Litt. 20 a.) pcrty itself. A similar error is pointed (d) Co. Litt 6 a, 20 b ; Plowd. out, sup. p. 172, n. (a), in reference 170. The term " incorporeal here- to the classification made by Black- ditament" is often applied so as to stone of chattels real as things per- include remainders and reversions (as sonal. 656 BK. IT. OF RlGnTS OF TROPERTY. — FT. I. THINGS REAL. right of Avay (both of which arc incoiiiorcal hereditaments) to be exercised over the land (which is corporeal) of another person. [As the logicians speak, coi'poreal hereditaments are the substance, which may be always seen, always handled ; incorporeal hereditaments are but a sort of acci- dents, which inhere in and are supported by that substance ; and may belong or not belong to it, -vAdthout any visible alteration therein. Their existence is merely in idea and abstracted contemplation ; though their effects and profits may be fi-equently objects of oiu- bodily senses. And indeed if we would fix a clear notion of an incorporeal hereditament, Ave must be carefiil not to confomid together the profits produced, and the thing or hereditament which produces them.] Thus if avc take the example of the right of feeding cattle in another's land, the grass, Avhich is the fi'uit or product of the right, is doubtless of a cor- poreal natiu-e ; yet the right itself [is a thing iuA-isible — has only a mental existence, and cannot be delivered oxev from hand to hand.] Incorporeal hereditaments seem never to have been reduced to any regular system of division, nor is even a complete enumeration of them to be discovered in our books. But they consist for the most part — though, as we shall see hereafter, not exclusively (e) — of rights in alieno solo ; and these are generally distri- butable either into profits, such as the right to feed cattle, or to take fish (/) ; or easements, tending rather to the convenience than the profit of the claimant, such as a right of way (^). In the account given of incoi-poreal hereditaments by Blackstone, he takes specific notice of advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, pen- (e) Vide post, p. C74-, as to fran- 3 Will. 4, c. 71 ; Robins v. Barnes, chises. Hob. 131 ; Peers v. Lucy, 4 Mod. (/) As to water issuing from a 36o ; Jac. Diet. " Easement," " Pre- well or spring, see Race v> Ward, scription ;" Manning «. Wasdale, 5 4 Ell. & Bl. 702. Ad. & El. 758, 413 ; Bailey v. Ap- (g) As to this distinction, see 2 & pleyard, 8 Ad. & El. 167. CHAP. XXIII. — OF INCORPOREAL HEREDITAIVIENTS. 657 sions, annuities, and rents (li). But for the discussion of many of these subjects, places more distinctly appropriate will be found hereafter ; while, on the other hand, the enumeration omits some incorporeal hereditaments of im- portance, Avliich can nowhere be introduced with so much advantage as in the present chapter. We shall therefore depart from Blackstone's method in this particular, and, in heu of it, direct the reader's attention to the following heads ; — commons, ways, vmter courses, lights, franchises, and rents {i). 1. Common (or right of common) is [a profit which a man hath in the land of another, as to feed his beasts, to catch fish, to dig tui-f, to cut wood, or the like 0*).] And it derives its name from the community of interest which thence arises between the claimant and the owner of the soil, or between the claimant and other commoners entitled to the same right ; all which parties are entitled to bring actions for injuries done to their respective interests— and that both as against strangers and against each other (k). (h) 2 Bl. Com. 21. The enume- (vide post, p. 681): and that with ration in Hale's Analysis (p. 48), is respect to corodies and pensions it as follows : — " Rents, services, tithes, will be sufficient briefly to state that commons, and other profits in alieno they were both, at the common law, solo ; pensions, offices, franchises, species of allowances in money or liberties, villeins, dignitiesJ" food, payable by religious houses to (i) It has appeared to the author, the king, their founder, for the suste- that advowsons and tithes will be nance of his servants. (SeeCowell's more conveniently examinable as Inter, in tit. ; F. N. B. f. 230, 233; part of the general law relating to 34 & 35 Hen. 8, c. 16.) On the the church (vide post, bk. iv. pt. ii. other hand he has been of opinion, c. III.) ; that offices and dignities, that watercourses and lights (omitted which indeed have in most in- by Blackstone) are of sufficient im- stances no connection with the portance to deserve a place in the realty, will be more properly con- present list. sidered in that part of the work (_;) As to this definition, see Lloyd relating to the state or government v. Earl Fowls, 4 Ell. & Bl. 485. (vide post, bk. iv. pt. i. cc. ix. x.) ; (A-) For the law on this subject, that the notice due to annuities will see Robert Marys's case, 9 Rep. 113; be most advantageously bestowed 1 Saund. by Wms. 346. iij)on them in connection with rents VOL. I. U U G58 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [Common is chiefly of fom- sorts (li) — common of pastnre, of piscary, of turbaiy, and of estovers.] 1. Common of pasture. Tins is the principal and most frequent sort, beings the [rig-ht of feeding one's beasts in another's land,] and it is £either appendant, appurtenant, because of vicinage, or in gross (O-J Qommon o^ \)^s\i\\rQ appendant is the privilege belonging to the o'\\Tiers or occupiers of arable land holden of a manor, to put upon the wastes {ni) of the manor (thence called commons) their commonable beas ts; that is, such beasts as are necessary either for the ploughing of land or for its manuring, viz., horses and oxen, cows and sheep (n). This is a matter of universal right (o) ; and it originally arose in this manner, that where a lord having a certain extent of waste gi'ound, enfeoffed any one of a parcel of arable land to hold of his manor in socage, for services to be rendered, it was foimd necessary to alloAv the feoffee to have common of pastm'e in the waste ground, as incident to his tenancy: for he coidd not plough or manure his o^^^l land without beasts, nor could he on the other hand sustain the beasts upon it, while it was sown vdth com (p). From this of course it follows, that it is only in respect of arable land that common appendant can be claimed {q) ; though it may be claimed by that name, as appendant to a farm in fact containing pasture at the present day ; for {k) K fifth species is also recog- (Bro. Ab. tit. Com. 13 ; Fin. Law, 56; nized in the books, viz., common Co. Litt. 122 a.) in the soil, as to which, vide post, (o) 1 Rol. Ab. 396, L 44 ; Co. Litt. p. 662. 122 a. It is said by Blackstone (/) Co. Litt. 122. (vol. ii. p. 33) to obtain in Sweden (m) As to the waste of a manor, and the other northern kingdoms, vide sup. 220. much in the same manner as in (n) 37 Hen. 7, 34 (Year Book), England. And he cites Stiernh. de F. N. B. 180 ; 4 Vin. Ab. in tit. Jure Suevor. 1. 2, c. 6. Com. (F). It is laid down in the (/)) Tyringham'scase,4 Rep.37a; books, that swine, goats, geese, and Co. Litt. 122 a; Bennett v. Reeve, the like, are not commonable ani- Willes, 231 ; Reeves's Hist. Eng. mals, as " not being necessary to Law, vol. i. p. 262. " plough or compcster the soil."— (5) 1 Rol. Ab. 397, 1. 28, 29. Cg,lW-T4 ^— Sc ^ W^ ^< , . ^, .F. ^ cr^' -yt "Tv'^ ^/ ^ CHAP. XXIII. — OF INCORPCniEiL HEREDITAMENTS. 659 tlie land shall be presumed (where there is usage to sustain the claim) to have been all originally aral^le (r). It folloAvs, also, that common appendant is incapable of b eing created at the present day (s) ; for all manorial tenure must have had existence before the passing of the s tatute of Quia emptores , in the eighteenth year of Edward the first {t). Common appurtenayit, which is said to be frequently confounded mth common appendant (m), [ariseth fi-om no connection of temu-e, nor from any absolute necessity ; but may be annexed to lands in other lordships (u), o r exte nd to other beasts besides such as ar e generall y commonable ; as to hogs, goats, geese or the like {x). This, not arising fi-om any natural propriety or necessity, like common appendant, is not therefore of general right,] but can only be claimed by grant, or 1by the long usage of particidar persons to enjoy the same (y) ; which latter title is com- monly called a title by prescription ; and is supposed by the law to be founded on a special grant or agreement originally made for this purpose. [Common because of vicinage or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another ; the beasts of the one strajang natm'ally into the other's fields, mthout any molestation fi-om either. This, indeed, is only a permissive right, intended to excuse what in •strictness is a trespass in both, and to prevent a multi- plicity of suits ; and therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town (r) Bac. Ab. Common, (A 1). (a:) Vide sup. p. 658, n. {n). (s) 1 Rol. Ab. 396, 1. 42; 26 (y) Tyringham'scase,4Rep.3Cb; Hen. 8,4 a. Cowlan v. Slack, 15 East, 108; as (<) Vide sup. p. 239. to title by prescription, vide post, {u) Bennett v. Reeve, Willes, 232. p. 692, where it will be explained {v) Sacheverillu. Porter, Cro. Car. wlial length of usage is siitKcient to 482; 1 W. Jones, 397, S. C. create a prescription. u u 2 660 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [a right to put his beasts originally into the other's com- mon ; but if they escape and stray thither of themselves, the law winks at the trespass (2?).] In close connection with this, and substantially of the same kind, is the right described in the books as common of shack^ -ov the right of persons occupying lands l}'ing together in the same common field, to tm-n out their cattle after hai"\^est.to feed promiscuously in that field (a). Indeed, this kind of com- mon, which in the beginning was but in the nature of a pasture " because of vicinage," and fomided on the same reason {b), has now long since in many parts of the country insensibly changed its nature ; and become, by the force of custom, a right so fixed, that even though the owner of any particular parcel should assume, merely on his ovm authority, to inclose his land in severalty, it would still continue subject to the antient rights of the intercom- moners (c). In a case like this (which is of familiar occurrence in parts of the coimtry where the land still lies in open field), the right woidd seem to be properly classed imder the head of common appurtenant (d). [Common in gross, or at large, in such as is neither ap- pendant nor apptu'tenant to land, but is annexed to a man's person, being granted to him and his heirs by deed; or it may be claimed by prescriptive right, — as by a parson of a chiu'ch, or the like corporation sole. This is a separate inheritance,] entirely distinct from any other landed pro- perty vested in the person to whom the common right" belongs. Common of pasture, of whatever kind, may, in respect of time, be either hmited or imlimited ; that is, may either be confined to particular seasons of the year, or last aU the (z) Co. Litt. 122 a. As to common (i) Corbet's case, ubi snp. pur cause de vicinage, see Heath v. (e) Ibid. Elliott, 4 Bing. N. C. 388; and {d) Lord Coke says, "it is by Jones V. Robin, 10 Q. B. 581. " custom altered into the nature of (a) Corbet's case, 7 Rep. 5 j Chees- " common appendant or appurte- man v. Hardham, 1 Barn. & Aid. " nant." (Corbet's case, ubi sup.) 710. CHAP. XXIII. —OF INCORPOREAL HEREDITAMENTS. 661 year roimd(e). As to the number of beasts to be turned on, the right is in general subject to restriction; for all commonsjexcept those in gross) must be either claimed in respect of some number in particidar, or at least in such manner as tends to limit the number, or for all cattle levant ^'^ *- 3- « and couchant on the land to which the common is appen- *^ ^"t^. dant or appurtenant ; that is, for so many as the land is ' ** ^ "^ / . capable of maintaining during the winter. And a claim , . i " \^ ^ subject to no limitation of either kind, (except perhaps u>— v t • v-,. ^ the case where an express grant to that effect could be ' ' h' shown,) would be void ( / ). But ^-ith respect to a commnri'^'^ ^*-* " '^ - • in gross, it would see m that it may be eit her limited to a /'2^|^»-.w*^ particular number, or be absolutely unlimited; which is ^.^. v-^^j-^rj called a common without stmt, or sans nomhrei^g). ^^-Z- ♦'^ 2, 3. [Common o^ piscary is a liberty of fishing in ano- ther man's water — as common of turhary is a liberty of diggmg tiu-f upon another man's ground (^).] And with respect to common of turbar y, in particular, it may be remarked that, like common of pasture, it may be either by grant or prescription; and may be either appurtenant or in gross; but it i s usually cFaimed as appiuj-enant, an d by prescription; and as to a common of turbary of this kind, we may notice that i t cannot be claimed as appu r- t enant to land, but only to a house (f) ; and it authorizes not the talcing of tm'f except for the pui-pose of using (e) 2 Bl. Com. 34. 346. But see Co. Litt. by Harg. ubi {f) 1 Saund. by Wins. 28 b, n.f4); sup. n. (5), We may observe here, Bennett V. Reeve, Willes, 231 ; Ben- that the term sans nomhre is some- son V. Chester, 8 T. R. 396; Chees- times applied to the case of corn- man V. Hardham, 1 Barn. & Aid. mon for cattle levant and couchant, 1 711. As to the number of beasts Saund by Wms. 28 b, n. (4). But which may \)e turned on because this is not the sense in which it is of vicinage, see Corbet's case, 7 used by Lord Coke. Rep. 5. (/O Co. Litt. 122; Wilson tJ.Willes, {g) Co. Litt. 122a; Howw.Strode, 7 East, 121. See Peardon v. Under- 2 Wils. 274 ; 3 Bl. C. 237, 239. It hill and others, 20 L. J. (Q. B.) 133. lias been denied that even a common (i) Tyringham's case, 4 Rep. in gross can be ^ans numhrc, 1 Saund. 37 a. 662 BK. II. OF RIGHTS OF FROPEIITY. — FT. I. THINGS REAL. the same as fuel in tlie particular house to which the right is aunexed(/). 4. [Common of estovers or estouviers (from estoff'er, to furnisli), is a liberty of taking necessary avoocI for the use or furniture of a house or fann from off [another's estate f] and may be claimed, like common of pasttue, either by grant or prescription. Estovers indeed may be taken (as formerly shoAvn) by every tenant or lessee from off the land demised to him, [without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary (wz).] But this right is not to be confomided with common of estovers, which (as already explained) is the liberty of taking such wood on the soil of a stranger. These several species of common, v/lien originally esta- blished in our law, had all reference, no doubt, to the same oljject as common of pastme, \az. [the maintenance and carrvang on of husbandry ; common of piscary being given for the sustenance of the tenant's family; common of tmbary for his fuel;] and estovers [for repairing his house, his instruments of tillage, and the necessary fences of his grounds.] In addition to the above- mentioned rights o f commo n, there is also common in the soil (?i) ; which consists of th e right [of diggmg for coals, minerals, stone s, and the li ke ;] and this last species, and common of tmbary, [bear a resemblance to common of pasture in many respects, though in one point they go much further : common of pastiu-e being only a right of feeding on the herbage and vesture of the soil, which rencAvs annually, while common of turbary, and of digging for coals, and the Hke, are a right of carr)ang away the very soil itself.] [By the Statute of Merton (20 Hen. III. c. 4), the lord (0 Valentine v. Penny, Noy, 145. («) Co. Litt. 41 b, 122 a ; and see (>«) Co. Litt. 41 ; vide sup. p. Cooke on the Law of Rights of 262. Commons, pp. 8, 37 (2nd edit.). CHAP. XXIII. — OF INCORPOREAL HEREDITAIVIENTS. 663 [of a manor may inclose] against common of pasture (o), though not in general against common of estovers or of turbary (p), [so much of the waste as he pleases, for tillage o r wood ground , — ])ro\'idc(l he leaves common sufficient for such as are entitled thereto (^). This inclosure, when jus- tifiable, is called in law " approving," an antient expression, signifying the same as "improving (r)."] And this right is considered as appljang equally to any owner of the waste, though he may not fall mthin the description of lord of the manor (s). But the inclosure of common fields and waste lands, and the consequent extinction of common rights therein, are objects of so much importance to agricidtm-al improve- ment, that they have not been left in modern times to depend on this antient statute ; but have been extended very generally, throughout entire manors and parishes in almost every part of the Idngdom, by force of local acts of parliament, passed from time to time for the purpose. And in aid of this practice Avas passed the statute 41 Geo. III. c. 109 (^),-^consolidating a niunber of regula- tions, and making them apphcable to every case of local inclosure, so far as the particular Act, under which the proceeding took place, contained no provision to the contrary. It is not, however, by force of local Acts, or of the regvdations contained in 41 Geo. III. c. 109, thus con- nected wth them, that an improvement of this description (o) And see 13 Edw. 1, c. 46 ; 29 Lake v. Plaxton, 10 Exch. 196. Geo. 2, c. 36 ; 31 Geo. 2, c. 41 ; 10 (r) 2 Inst. 474. Geo, 3, c. 42 ; see also 13 Geo. 3, («) Glover v. Lane, 3 T. R. 445. c. 81, for regulation, by the com-- {t) As to the construction of this moners, of the mode of enjoying statute, see Doe r. Spencer, 2 Exch. their common rights. G92. It has been hitherto usually (/>) 2 Inst. 87; Bateson v.Green, described as The General Inclostire 5 T. R. 416; 1 Saund. by Wms. & Act ; but since the passing of the Pat. 353 b, n. (b) ; Arlctt v. Ellis, 7 more recent statutes to be presently Barn. & Cress. 369. mentioned, the description has bc- (q) Arlett V. Ellis, uhi sup. ; see come somewhat ambiguous. Patrick v. Stubbs, 9 Mec. & W. 833 ; 664 BK. II. OF RIGHTS OF PROrERTY. — PT. I. THINGS REAL. is now effected ; but under general provisions for facili- tating inclosui'e wliicli have been lately introduced by the legislature, to enable parties to avoid the expense and delay of obtaining a local Act for the pui-pose of each particular case. By the first Act containing provisions of this description, viz. 6 & 7 Will. IV. c. 115(a), it was enacted, that (with certain exceptions) such inclosui'e might take place in any open and common lands, whether arable, meadow or pastm-e, without the sanction of an act of parHament, and under the conduct of commissioners appointed by the majority of the persons interested, — provided the consent of two-thirds in number and value of such persons were obtained for the purpose ; and, with the consent of seven-eighths, might take place without the intervention of commissioners {b). But the statute was restricted in several directions : and, in particular, did not extend to the inclosure of any waste whether the soil thereof was or was not vested in the lord of any manor; nor to places within ten miles of London, or within cer- tain distances of other large towns comprising a certain amount of population. And as owing to the limits within which it was thus restrained, and to other causes, this Act was foimd inadequate to the public exigencies, it was succeeded not long afterwards by the 8 & 9 Vict. c. 1 18 (c) ; by "vdiich — after reciting that " it is expedient to facilitate " the inclosure and improvement of commons and other " lands, subject to rights of property which obstruct cul- " tivation and the productive employment of labour ; and " to facilitate such exchanges of lands (. Coven- (-<^y: x«p*r- J / / 672 BK. II. OF itlGHTS OF PROPERTY. — PT. I. THINGS REAL. boat for the ferrying of passengers ; and this either by royal grant or by prescription (p). "T3ut (unless mider an act of parliament) no other title than tliese will suffice ; for no fair, niarlcet or fony can be laAvfully set up with- out hcence fi'om the crown {q). On the other hand, a man may, mider such titles, laA^'fully claim to be lord of a fair or market, though he be not the OT\-ner of the soil on which it is held (r) : or to be the proprietor of a ferr}", though he be not the owner either of the water over which it is exercised (s), or of the soil on either side of the river (<) ; but he must possess over the soil such rights, at least, as wiU authorize him to embark and disembark his passengers thereon (u). The right to take toU, also, from the customers, is usually — though in the case of a fair or market not necessarily {x) — a part of the privilege ; and the tolls of a fair or market are due either in respect of goods sold there (that is, from the seller, not the buyer), or for stallage or pickage, or the like, in respect of stalls or poles fixed in the soil {y). But the right of the crown to authorize the collection of tolls is viewed by the law wdth a salutary jealousy ; so that no biulhen of that kind can l3e imposed on the public, unless it have (in the language (/j) 2 Inst. 220; Trotter u. Harris, Dig. Piscary, B. ; Hale, de Jure Ma- 2 Y. & J. 285. Fairs and markets r'ls, part i. c. 2. are, however, often regulated by act (r) Bac. Ab. Fairs, &c. D. n. (a) ; * ^ of parliament; and see 10 & 11 Vict. Mayor of Northampton v. Ward, 2 > c. 14 fcalled "Th e Markets and Fairs Stra. 1238; 1 Wils. 107; but see Clauses Act, IS^'^^onsoaaanng per Littledale, J., R. v. Starkey, 7 int^on^statute certain provisions Ad. & E. 106. usually inserted in such acts of regu- (s) Com. Dig. in tit. Piscary, B. lation. As to days on which fairs (f) Peter «, Kendal, 6 B. & C. and markets are not to be held, see 703. 27 Hen. 6, c. 5 ; 13 & 14 Vict. c. 23. (u) Ibid, As to Greenwich market, see 12 & {x) Heddy v. Wheelhouse, Cro. / yl3 Vict. c. 28. As to a metropo- Eliz. 558, 592; Lord Egremont v. litan market in lieu of Smithfield, Saul, 6 Ad. & El. 924; R.y. Starkey, 14 & 15 Vict. c. 61. 7 Ad. & El. 106. ^ iq) 2 Inst, 220; R. v, Marsden, 3 {y) 2 Inst. 219. Burr, 1812 ; Willes, 512, (n,) ; Com. v^, . ^^^^^^/y^^^-t^iCc^ > Jy^-JL 'J^^-^' ^^^ xT^a CHAP. XXIII. — OF INCOEPOREAL HEEEBITAMENTS. 673 of the books) a reasonable commencement {z) \ tliat is, imless it be fonnclecl on an adequate consideration as be- tween tlie public and tlie grantee : which consideration, in the case of a fair or market, is the duty incumbent on the grantee to provide gTOund for the purpose, and to regulate the proceedings ; in that of a ferry, to keep up a boat for the passage over a stream not otherwise fordable (a). And it is also essential that the burthen be reasonable in its amount (b) ; for where the tolls granted are outrageous, the franchise is illegal and void (c). It is however to be re- marked, that, when any of the privileges in question can be shown to exist, the party entitled to it has a right of action, not only against those who reflise or evade pay- ment of toll where it is due, but against those also who disturb his franchise by setting up a new fair, market or ferry, so near to his as to diminish his custom {d) ; while on the other hand he is himself Hable to be criminally in- dicted, if by his wilfid act, or even by his neglect of duty, the sulbjects of the realm are obstructed in its lawful use (e). 2. As to the franchises of forest, chase, park, warren, and fishery. A. forest (in the legal sense ) is the right of keeping, for the purpose of venary and hunting, the Arild beasts an d fowls of forest, chase, park, and waiTen, (which mean s in effect all animals pursued in held sports,) in a certai n ter- ri tory or ]3recinct of woody ground or pasture set apart fo r t he purpose ; Aritli laws and officers of its own , estabhshed («) 2 Bl. Com. 37; Mayor of Not- Action on the Case for a Nuisance, tingham v. Lambert, Willes, 116. (A); Blisset v. Hart, Willes, 503; (a) Heddy v. Wheelhouse, ubi De Rutzen v. Lloyd, 5 Ad. & E. sup. 456 ; Bridgland v. Shapter, 5 Mee. (&) Ibid. ; 2 Inst. 219. & W. 375 ; Pirn v. Curell, 6 Mee. & (c) Stat. I Westm. c. 31 ; 2 Inst. W. 234. 219; Cro. Eliz. ubi sup. ; 2 Bl. Com. (e) Willes, 512, (n.) ; Payne v. B7 ; Willes, ubi sup. Partridge, 1 Show. 231. {d) 2 Roll. Ab. HO; Com. Dig. VOL. I. XX 674bk.II. of rights of property. — pt. i. things real. for protection of the game (/). It is a principle of our law, tHat will be noticed more fully in its proper place, that in general no man can make title to animal sybr^B natiircB — Avhich, while they remain -wild, are accoimted nullius in bonis, or (what amounts to the same thing) as the common property of mankind. From this it results, that, though a man may take or kill on hfs own lands any particidar animals that may happen to be found there i^g), — subject to the restrictions imposed by the Game Acts, of which we shall speak hereafter (A), and so that he invade not any exclusive franchise of sporting, which another person may possess over the same territory) {i\, — yet he is not at liberty to confine beasts of venaiy in a \\\[di state within a particular precinct, for the mere piu'pose of diversion (even though on his 0"\vn soil) ; for this is in some sense to ap- propriate what belongs equally to others, and is in the natiu'e of an unla^\^d monopoly {k). Such at least was the principle of the antient law, which appears in this (/) Co. Litt. 233 a ; Manwood, the Saxons, viz., that in general Forest Laws, 41, 52, edit. 1665. every man has a right to hunt, &c. {g) Case of Monopolies, 11 Rep. on his own grounds (see Wilk. Leg. 87 b. Blackstone (vol. ii. p. 415) Angl. Sax. LL.Can. c. 77) — aright, supposed that the Norman race of however, that is modified as men- kings introduced the doctrine, that tioned in the text. See Chit. Game the right of pursuing and taking Laws, 3; 11 Rep. 87 b; Ld. Raym. beasts of venary belongs in every 251 ; Salk. 555. case to the sovereign only, or those {h) Vide post, bk. ii. pt. ii. c. ii. by him authorized; and he con- («) Lord Dacre v, Tebb, 2 Bl. sidered this as a still existing Rep. 1151. doctrine of our law, and held that (A-) None can make a park, chase, (however common the contrary sup- or warren without the king's licence : position might be) no private person for that is, qttodammodo, to appro- was entitled at common law to kill priate those creatures which are /er^s game, unless he could show a right natures, and millhis in bonis, and to of freewarren. But Blackstone's restrain them of their natural li- views on this subject have been with berty; Case of Monopolies, 11 Rep, reason controverted; and the true 87b; and see ibid. 86a; 2 Rol. rule seems always to have been that Ab. 33, 812; 2 Inst 199; Com. which is stated by the learned com- Dig. Chase, (D). mentator himself, as allowed among CHAP. XXIII. — OF I^X•ORPOEEAL HEREDITAMENTS. 675 particLilar to remain unaltered ; though by a distinction introduced in comparatively modem times, some kinds of animals ferce naturce, such as deer, rabbits, and the hke, may be la^^^ully kept by any person in an inclosed place, if preserved as property, and not merely for the piUTpose of the chase (J). But the practice of keeping up animals in a wild state for mere diversion, though forbidden to the subject, has been at all times permissible, as a matter of prerogative, to the sovereign. For we find, that e^'en among the Saxons there were woody and desert tracts called the forests, which, [having never been disposed of in the first distribution of lands, were held therefore to belong to the croTSTi ;] and that [these were filled with great plenty of game, which our royal sportsmen reserved for their own diversion, on pain of a pecuniary forfeiture for such as interfered with their sovereign. But every freeholder had the flill Hberty of sporting upon his OA^^a territories, pro^dded he abstained fi-om the king's forests, as is frdly explamed in the laws of Canute {m)\ which indeed was the antient law of the Scandinavian conti- nent {n), from whence Canute probably derived it (o).] Aftei-wards, upon the Conquest, the Nomian race of sove- reigns exceeded even their predecessors in the eager en- joyment of this branch of the prerogative ; for not only did they extend the limits of the antient forests, by encroachment on the lands of their subjects, and lay out new ones at their pleasure, -vidthout regard to the rights of private property (j9); but they established a particvilar system of forest laiv (q), under colom- of which [the most (?) See Davies v. Powell, Willes, viissiim." — Stiernhook, de Jure 48 ; Morgan v. Abergavenny, 8 C. B. Sueon. 1. 2, c. 8. 768. (o) 2 Bl. Com. 415. (m) Wilk. Leg. Angl. Sax. LL. {p) Manw. 319; 4 Inst. 300, 301. Can. c. 77. (?) 1 Reeves's Hist. Eng. Law, (n) " Cuique in propria fundoquam- 206. Ubet feram quoquo modo venari per- XX 2 676 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [hoiTid tyrannies and oppressions] were exercised (r) : so that om' ancestors at length became [as zealous for its reformation, as for the relaxation of the feudal rigours and other exactions introduced by the Norman family;] and struggled for the Charta de Foresta, as strenuously as for the Great Charter itself (s). By this forest charter, con- firmed in parliament in the ninth year of Henry the third {t), many forests unlawfidly made (or at least many precincts added by unlawful encroachment to the antient ones) were disafforested, so as to remit to the former o\%Tiers their rights (m), — though in the case of such precincts, called thenceforward purlieus, the crown stiU continued to exercise some of its privileges {x), — while in the forests that remained entire many abuses were reformed or mitigated. And owing to the variety of statutes after- wards made for amelioration of the forest laws, and above all to the entire disuse of them for centuries past by our sovereigns (y), this branch of the prerogative has long ceased to be a grievance to the subject {z). Some of the (r) "The penalty for killing a Chase, 1. Purlieu is variously de- " stag or boar was loss of eyes — for rived from pur lieu (exempt place), "William loved the great game," 4 Inst, ubi sup. ; or/jowraZ/ee, peram- says the Saxon Chronicles, "as if he bulation, Com. Dig. Chase, (I. 1.) " had been their father." — Hallam's (y) An attempt to revive them Mid. Ages, vol. ii. p. 426, 7th edit. was made by Charles the first, and («) 2 Bl. Com. 416. courts were held by the chief justice (<) Its clauses had been previously in eyre, for recovery of the king's fo- incorporated in the Great Charter of restal rights (Hallam's Const. Hist. John, granted at Runnymede. Hal- vol. ii. p. 13) ; but by 16 Car. 1, c. 16, lam's Mid. Ages, vol. iii. p. 222, n. tlie extent of the royal forests is now 7th edit. fixed according to their boundaries (m) Reeves's Hist, of Eng. Law, in the twentieth year of James the vol. i. p. 254. This charter is first ; and no place is to be hereafter considered by Lord Coke as only accounted forest, where forest courts a declaratory law ; and he holds that were not held within sixty years be- the king could never make forests fore the first year of the reign of in the land of his subjects, without Charles the first. their consent. (4 Inst. 300.) (2) 2 Bl. Com. 416. (ar) 4 Inst. 303, 304; Com. Dig. CHAP. XXIII. — OF INCORPOREAL HEREDITAJNIENTS. 677 royal forests however still exist (a) ; and witli some few exceptions, such as the New Forest in Hampshire, founded hj the Conqueror, that of Windsor by Henry the eighth, and that of Richmond by Charles the first (b), are of such remote antiquity, that no trace is said to remain in history of their first creation (c). Though a forest is in general a royal possession, we are nevertheless to observe that it is capable of being vested in a subject (d) ; for if the sovereign grant a forest to a private person, "oath words expressly authorizing the admi- nistration of forest law there, the grantee will have that franchise to its full extent, with all the appropriate courts and officers (e). It is also to be remarked, that a forest is a righ t which the OAvner thereo f (Avhether sovereign or subject) may have either in his own lands or the lands of another (f) : and in this respect it differs from a right of common, and the other incorporeal hereditaments above described ; for these, as they issue out of the soil, cannot exist in the same man who is general owner of the soil itself, (the latter title superseding all inferior claims hke (a) See 12 & 13 Vict, c 81, autho- forest of Hainault ; 24 & 25 Vict. c. rizing a commission to inquire into 40, as to the forest of Dean and the rights or claims over the New Forest mines and quarries therein, and Waltham Forest ; 14 & 15 Vict. (b) As to Richmond Park, see c. 43, for disaflforesting the forest of Hallam's Const. Hist, vol, ii. p. 14, n. Hainault ; 14 & 15 Vict. c. 76, 16 & 3rd edit. 17 Vict. c. 19, and 17 & 18 Vict. c. (c) See 4 Inst. 319, where it is 49, as to her Majesty's rights in the said that the forests in England are New Forest; 16 & 17 Vict. c. 36, in number sixty-nine; see also as to and 19 & 20 Vict. c. 32, as to dis- the antiquity of the forests, 4 Inst, afforesting the forest of Whichwood; 293, 294. 16 & 17 Vict. c. 42, as to disafforest- {d) Co. Litt. 233 a. ing the forest of Whittlewood ; 18 & (e) Case of Leicester Forest, Cro. 19 Vict. c. 46, as to disafforesting Jac. 155 ; see Coleridge's Black- the forest of Woolmer; 19 & 20 stone, vol. ii. p. 38, n. (19). Vict. c. 13, for management of lands ( /) 4 Inst. 301, 318 ; Lord Dacre of her Majesty within the late forest v. Tebb, 2 Bl. Rep. 1151 ; Sutton v. of Delamere; 21 & 22 Vict. c. 37, Moody, Ld. Raym. 251. as to commonable lands within the 678 BK. II. OF RIGHTS OF PllOPERTV. — PT. T. THINGS REAL. these,) and are consequently rights which a man can claim to exercise only in alieno solo(g)\ but a forest, and in deed all franchises in general, are inheritances collateral to the o wnershi]) of the lan d (A), and may he claimed by a man either in pToprlo solo or in alieno (i). Theowner of a forest is also considered (notmthstanding the general rule that title cannot be made to things ^erffi ?iatuj'CB) ashaving a qualified property in the ^^'ild animals of chase and venary there found, so long as they continue t here in ; and no other person can laTv-iully take them "v^^thin those precincts, or chase them from thence and take them in other ground (j). But if a wild animal strays from the forest, it ceases to be the property of the owner of the franchise, and A\all belong to the first taker (A). A chase is a fi-ancliise granted by the crown to a subject, empoweidng the latter to keep for his diversion, Avithin a certain precinct so called, the wild animals of chase, which in a legal sense are the same with those to which the right of forest extends (Z); but the fi-anchise does not autho rize t he estabhshment of forest law within suc h precinct (m). A park properly signifies an in closure, and is popularly applied to any ground which a gentleman chooses to sur- round with a wall or pahng, and to stock with a herd of deer; but in the technical sense in which Ave now use the term, a park is nearly equivalent to a chase, being in effect n o other than a chase inclosed (n). w/ <^-»- ct.2jt^^^„ so2.e X free-waTren{o) is a similar fi-anchise, granted by the {g) See Lloyd v. Earl Powis, 4 {m) Manw. 52 ; see also 2 Bl. El. & Bl. 485. Cora. 415, where a chase or a park (/j) 4 Inst. 318. is described as " a smaller forest in (j) 2 Bl. Com. 38. " the hands of a subject, but not {j) Sutton V. Moody, Ld. Raym. " governed by the forest Jaws." 251 ; 2 Bl. Com. 394, 395, 419. (n) Manw. 52; 2 Bl. Com. 38. {k) 12 Hen. 8, f. 10, cited 2 Chris- (o) See Bro. Ab. tit. Warren; tian'sBlack. 419, n. ; andser Keilw. Dyer, 30 b; Co. Litt. 2 a, 114b; 30; Sutton V. Moody, ubi sup. Keilw. 148, n. ; Bowlston v. Hardy, \^l) Co. Litt. 233 a. CHAP. XXIII. — OF I^X'ORPOREAL HEREDITAMENTS. 679 crown to a subject, [for preservation or custody, as the ^ word signifies, of beasts and fowls of xoarren ;] which, according to Lord Coke, are " hare, coney, roe," " parti*idge, - , . i "quail, rail, &c.," "pheasant, w^oodcock, &c.," "mallard, ,., " iTeron, &:c."(j9). To this, as well as to chase and park, '^ apply generally the principles which have been before^ ^^^ noticed in respect of a forest; with this exception, how- ^j,.*^,,^ < , ever, as to a park, that it is incapable of being claimed in (, \ ^^i,,,^ ^ ^ alieno solo, and can exist only in land belonging to the ^X-^ owner of the francliise himself (5'). ^^j^ J cT'if \_A. free-fishery {r), or exclusive right of fishing in a ^. ^-^s-^, public river, is also a royal franchise (s).] As the bed or soil(i), so the right of fishing presumably belongs, in private rivers (viz. those not navigable), to the owners of the land on either side, and to them only(z^). In those which are pubhc — that is^ navigableC^r),— the bed (so far at least as Cro. Eliz. 548 ; Wadhurst v. Damme, Cro. Jac, 45 ; Case of Leicester Forest, ibid. 155; 1 Saund.84, n. (3); Attorney -General v. Parsons, 2 Tyrw. 223 ; Vere v. Lord Cawdor, 11 East, 568; Merest v. Harvey, 5 Taunt. 442 ; Lord Dacre v. Tebb, 2 Bl. Rep. 1151 ; Patrick v. Greenway, 1 Saund. 346 b ; Pannell v. Mill, 3 C. B. 625. (p) Co. Litt. 233 a; where these &c.'s are left without explanation. Manwood, on the other hand, says, '' There are only two beasts of war- " ren, the hare and the coney, and " but two fowls of warren, the " pheasant and the partridge." — Manw. 95 ; and see Barrington's case, 8 Rep. 138 b. Grouse are not birds of warren. (Duke of Devon- shire V. Lodge, 7 B. & C. 36.) (7) 2 Bl. Com. 38. Blackstone re- marks on the other hand (p. 39), that freewarren may be claimed in alieno solo ; and accounts for it by the fact, that antiently keen sportsmen, on selling their lands, often reserved to themselves and their heirs the free- warren that they had in them. (r) See Hale, de Jure Maris, part i. c. 4 ; Lord Fitzwalter's case, 1 Mod. 105 ; Warren v. Matthews, 1 Salk. 357 ; Smith v. Kemp, 2 Salk, 637 ; Carter v. Mercot, 4 Burr. 2162 ; Case of River Banne, Davies, 55. (s) Blackstone adds, (vol. ii. p. 39,) that it "is considered as such " in all countries where the feudal " polity has prevailed," and he cites Seld. Mar. Claus. i. 24 ; Dufresne, V. 503 ; Craig, de Jure Feod. II. 8, 15. See also Mannall v. Fisher, 5 C. B. (N. S.) 856. {() Vide sup. p. 458. (u) Hale, de Jure Maris, pt. i. c. 4. (t) Ibid. pt. i. c. 1, 2. _ . ^^^ . ^-y^- 680 BK. IJU OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. Y ^=^^' "^^^ • * tne tide flows) appertains ;?7'ima/acie to the crown—the right of fishing to the pubhc at large (?/). But in either one or the other, there may be a particular title in some individual, by which such general or presumptive right ^^ may be controlled {z) ; and this may take place in a public , \ " river, by force of some royal grant or prescription entitling \ a private person and his heirs to the exclusive right of X'"* fishing therein: a privilege called by Blackstone a " free \ fishery" (a). G rants of this descri]:)tion can no long er be I' ' ^ made b y the crown (Z>); being prohibited by King Joh n's ^ I g reat charter ( c), and the second and thii'd confirmations ■ of it in the reign of his successor ; but the right of con- IfeiTing them was considered, Qjrior to these charters,) as one of the flowers of the prerogative (jd ) ; and it is from this origin that the validity of a fcee fishery at the present day must in every case be derived. The privilege materially differs, it will be observed, fi"om the right of common of piscary formerly mentioned {e) ; which is not exclusive in its nature, nor a firanchise, but referable to private rivers, and capable of being created by the grant of a subject. In (?/) Ibid. c. 4; Wardt>. Cresswell, Willes, 265 ; Mayor, &c. of Orford V. Richardson, 4 T. R. 437 ; 2 H. Bla. 182, S. C. ; Bagott v. Orr, 2 Bos. & Pul. 472; Blundell t'. Cat- terall, 5 B. & Aid. 268 ; Williams V. Wilcox, 8 Ad. & E. 333. («) Hale, de Jure Maris, part i. c. 1, 4. (o) There are in law, the three different terms o^ free fishery, several fishery, and common of fishery or pis- cary (Smith V. Kemp, Salk. 637); and it is remarked by Blackstone (vol. ii. p. 40) that "they are very " much confounded in our law " books ;" and a doubt is expressed in Co. Litt. by Harg. 122 a, n. (7), whether Blackstone's own use of the term free-fishery is quite correct, and whether 'it does not apply to all streams, whether public or private. As to the term " several fishery," see Holford v. Bailey, 8 Q. B. 1000. (i) 2 Bl. Com. 39 ; Duke of So- merset V. Fogwell, 5 B. & Cress. 875. As tc the re-grant of a former fran- chise of free fishery, when forfeited to the crown, see the mayor of Col- chester V. Brooke, 7 Q. B. 385. (c) Cap. 47, edit. Oxon. (c?) The riglit was also exercised by the crown, and granted out to subjects, of making weirs on our public rivers ; but this was in like manner restrained by Magna Charta and subsequent statutes ; see Wil- liams 11. Wilcox, 8 Ad. & E. 314. (e) Vide sup. p. 661. CHAP. XXIII. — OF INCORPOREAI. HEREDITAMENTS. 681 further illustration of tlie difference between them, Ave may add that, in a free fishery, a man has a quahfied property in the fish before they are caught ; in a common of piscar}^, he has no property till afterwards (/*). VI. Rents are the last species of incorporeal heredita- ments that Ave propose to notice. [ The word rent, redit us, signifies a comp ensation or retm-n] yielded ]jeriod icaIly, to a certain amount, out of the profits of some coii^joreal h ere- d itament, by the tenant thereof . To obtain a clear idea of rent , it may be usefld to dwell a little upon some of the points of this definition. First, then, it is yielded, that is, paid as a thing due. And therefore it is said by the antien t lawyerSj_to lie in re nder, in contradisti nction to those incor- poreal hereditaments, (as common or the like.) which the p arty entitled to, is to take for hims elf, and which ar e, consequently, said to lie in pr endr e {q). It must also be of certain amount, or that aaIucIi may be reduced to certainty, by either party; for certum est, quod certum reddi potest {h). It must besides be payable periodically ; as yearly, or in every second, third or fourth year, or the hke {i). Again, is is considered as payable out of the profits (A) of the land, and must consequently [not be part of the land itself; wherein it differs fi-om an exception m a grant, Avhich is always o f part of the thing grant ed (Z).] TIuis a man can- not reserve, by way of rent, the vestm*e or herbage of the land demised (tw). [Yet there is no occasion for it to be, (as it usually is,) a sum of money; for spurs, capons, horses, corn and other matters may be rendered by way of rent(w).] Moreover, [it must issue out of hereditaments corporeal. Therefore a rent cannot be reserved out of a common, a (/) 2 Bl. Com. 40; F. N. B. 88 ; (I) Plowd. 13; 8 Rep. 71; Co, Smith V. Kemp, 2 Salk. 637. Litt. 142 a. (g) Burton, Compend. 375. (m) Co. Litt. 142 a. {h) Co. Litt. 142 a. (n) Ibid.; see Doe v, Benham, (i) Ibid. 47 a. 7 Q. B. 982. (/f) Ibid. 141 b, 142. 682 BK.II. OF RIGHTS OF PEOPERTY. — PT. I. THINGS REAL. [franchise, or the like(o).] And, lastly, the j)erson from whom It IS due must Be the tenant of the land. But his tenancy may be either in possession, remainder or rever- sion ; for a rent may be as well reserved upon the grant of a reversion or remainder, as on the conveyance of an estate in possession (p). [There are at common law, three manner of rents, rent- service, rent-charge, and rent-seek (g-).] Rent service is where the rent accnies in connection with a tenure, at- tended (as teniu'e almost invariably is) by fealty or by fealty and other services (r); and this, whether the party to whom the rent is due be entitled to fealty, as having the reversion of the land out of Avhich it issues, or as having the mere seigniory (s). Thus if A., seised in fee, make a gift of land to B. in tail, — or demise to him for life, or years, — reserving a rent ; or if B. be seised in fee of a tenement holden of A. as lord of a certain manor, at a certain antient rent ; such rent is, in either case, rent-service : for it is due as fi'om a tenant omng fealty to his lord(<). To rent of this description the common law attached, as of common right, — and independently of any express provision for that piu-pose between the parties (m), — the power of distress (x)-, (o) Co. Litt. 142 a, 144 a, 47 a ; yet it is not rent service, for there is Gilb. Rents, 20. The sovereign, no fealty ; (vide sup. p. 302.) The however, by prerogative, and in iessor, however, may distrain of some cases a subject, by statute, may common right. (Co. Litt. 57 b.) have a rent issuing out of an incor- (ti) Litt. s. 214. poreal hereditament. (Gilb. Rents, (x) Lord Chief Baron Gilbert 22.) And, in every case, the reser- (On Rents, pp. 3, 5) remarks, that vation of rent upon an incorporeal " antiently the not paying attend- inheritance will be binding on the " ance on the lord's courts, or not lessee, as a contract to pay so much " doing the feudal service, was money. (Cruise, Dig. Rents.) " j^unished with the forfeiture of ( p) Co. Litt. 47 a, 142 a ; Bac. " the estate ; but these feudal for- Ab. Rent, B. " feitures were afterwards turned (q) Litt. s. 213. " into distresses, according to the (r) Ibid.; Co. Litt. 142 a. " pignorary method of the civil law." (s) Vide sup. p. 252. And this, he adds, " may easily ac- {() If a man holds as tenant at " count why the power of distrain- will only, though subject to a rent, " iiig always attended the fealty ; CHAP. XXIII. — OF INCORrOREAJ. HEREDITAMENTS. 683 that is, the lord was entitled, in the event of the rent's fall- ing into arrear, to enforce payment without legal process, bjentering the land, and seizing the goods and chattels found thereon. The other two species of rent differ from the former, in having no connection Avith fealty. But more particularly — a rent-charge , is where the owner of the rent has neither seigniory nor reversion, and can consequently claim no fealty, but is entitled nevertheless, by force of an express contract, to distrain ; |[as where a man by deed maFeth over to others his whole estate in fee simple, with a certain rent payable thereout, and adds to the deed a cove- nant or clause of distress ; viz. — that, if the rent be in arrear or behind, it shall be laAvful to distrain for the same ( y) ;] or where a man by deed grants out of the land whereof he is seised, a certain rent payable to another, with a like clause of distress (2? ). In either of these cases [the land is liable to the distress, not of common right, but by virtue of the clause in the deed ; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it (a).] A rent seek {reditus siccus) is '' because the power of seizure (for morandum or minute thereof, such " forfeiture) could only belong to as the Act describes, shall be left " him in whose homage the tenant with the senior master of the Court of " was, and to whom the lands must Common Pleas at Westminster, to be " return when the feudal donation to by him registered in a book ; which " the tenant was spent." See fur- book, all persons shall be at liberty ther as to distress for Rent, post, to search. But by sect. 14, the re- bk. V, c. I. gistry of annuities, or rent-charges, (y) Litt. s. 217. given by will, is not required. By («) Ibid. s. 218. 22 & 23 Vict. c. 35, s. 10, the re- (a) Ibid. s. 217. By 18 & 19 lease from a rent-charge of part of Vict. c. 15, s. 12, any annuity or the hereditaments charged therewith rent-charge granted after the pass- shall not extinguish the whole rent- ing of that Act otherwise than by charge; but shall operate only to bar marriage settlement, for one or more the right to recover any part of the life or lives, or for any term of years rent-charge out of the heredita- or greater estate, determinable on one ments released, without prejudice or more life or lives, — shall not affect nevertheless to the rights of all any lands, tenements or heredita- persons interested in the here- ments as to purchasers, mortgagees ditaments remaining unreleased, or creditors, unless and until a nie- and not concurring in or confirming- 684 BK. II. OF RIGHTS QF PROPERTY. — PT. I. THINGS REAL. where the owner of the rent has neither seigniory nor re- versfon, norjanj such express poAver of distress as above described. Thus, in either of the cases of rent-charge Ave have just mentioned, if no clause of distress Avere inserted in the deed, the rent would be rent seek (6). IJiVe must be careflil, howcA'er, to distinguish here be- tAveen the two kinds of rent last aboA^e described and an annuity, which [is a yearly su m chargeable only upo n the pe rson of the g rantor (c). Therefore if a man by deed grant to another the sum of 20/. per annmn, Avithout ex- pressing out of what lands it shall issue {d), no land at all shall be charged Avith it, but it is a mere personal annuity,] a nd does not belong to the class of thmos real ; th ough, (by a n anomaly AA^hicli has sometimes led to confasion,) a man ma y have an estate of inheritance in it; that is, it may be made descendible to his heirs (e), AA^hile personalty in general can deA'olve only to the executors or administra- tors. 3 [There are also other species of rents ; AA^hich are, hoAv- ever, reducible to the three aboA'c enmnerated. Rent of assize'] ar e rents at Avhich the freeholders or copyholders o f a manor have held under the lord from time immemoria l (/) ; and they [cannot be departed fr-om or varie d ; t hose of t he fr- eeholders are frequently called chief rents (reditus cap i- tales), and both sorts are indiiferently denominated quit r en ts (q uieti redit us), because thereby the tenant Avas quit and fi'ee of all other serAaces. A^Tien these pajonents were re- the release. Before this Act a rent- (e) Co. Litt. 2 a. According to charge was in effect extinguished Blackstone, (vol. ii. p. 40,) " a man by a release of part of the heredi- " may have a real estate in it." But taments charged. (See Co. Litt. it seems clear that this can only be l^'T b.) in the sense of an estate of inherit- (b) Litt. ss. 217, 218. ance, and that an annuity savours (c) Co. Litt. Mi, 20 a, and n. (4), in no other respect of the realty ; see by Harg. Co. Litt. 20 a ; Aubin v. Daly, 4 B. (d) As to the cases in which a & Aid. 59. grant of this kind shall be construed (/) 2 Inst. 19. as a rent-charge, see Co. Litt. 1 17 a. CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 685 [ceived in silver or white money, tliey were antiently called white rents, reditus alM{g), m contradistinction to rents reserved in grain or baser money, which were called re~ ditus nigri, or black mail (A).] Being connected -v^ath a tenure by fealty, they are consequently rent service ; from which it follows that the lord is entitled, as of common right, to distrain for them when they fall into arrear (^). Rack rent is a term expressive only of the proportion a rent bears to the value of the tenement on which it is charged : when it is [of the full value of the tenement, 'or near it,] the rent Is said to be a rack rent. A fee farm r ent is where an esta te in fee is granted subject to a re nt ^ in fee, [of at least one-fourth of the value of the lands at f t he time of its reserva tion (/*);] and such rent appears to becalled fee farm, because [a grant of lands reserving so considerable a rent, is indeed only letting lands to farm in fee simple, instead of the usual method for life or years.] It results fr'om former explanations, that such a rent, if created by a subject since the statute of Quia emptores (J), can never be a rent service, for no fealty can be due to the grantor ; but it may be either a rent seek or a rent- charge {m). These are the general divisions of rent ; but though their correct apprehension is still of imiportance, the difference which formerly existed as to the remedies to be pui'sued in case of then' non-payment, is, for practical pm"poses, nearly {g) In Scotland this kind of small n.(f5); and in Doug. 627. payment is called blanch holding, re- (/) Vide sup. p. 204. According ditus alhcp.jirma. to Mr. Hargrave, a fee farm rent (/«) 2 Inst. 19. cannot be created by a subject since (i) 2 Watk. Cop. 191 ; vide stat. this statute ; it being in his opinion Hen. 8. essential to the definition of a fee (Ar) Co. Litt. 143 b. Blackstone farm rent, that it should be a rent- (vol. ii. p. 43) defines a fee farm service; Co. Litt. by Harg. 144 3, rent as a rent-charge issuing out of n. (§) ; but see the other authorities an estate in fee of at least one- cited in the last note, fourth, &c., but apparently by a (»0 Doug. 627, note (1) ; and see misconception of Lord Coke's mean- Litt. 217. ing. Sec Co. Litt. by Harg. 144 a, 686 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAI^. at, an end. For it is provided by stat. 4 Geo. II. c. 2 8, tliat every person sliall have the hk(! reme dy b}" distres s, — in eases of rent-seek, rents of assize, and ehief rents, wliich had been dnly answered or ])aid for the space of t hree years within twenty years before the first day of the ses- sion of parhameut m which the Aet Avas ])assed, or shoidd b e thereatter created,— as he woidd have liaci in the case of rent reserved npon leas e (o). With respect to the manner of creating rents, it may be observed generally, that the methods are two — for either the owner of land may grant a rent out of it, or he may grant the land itself, subject to a rent (p). Rent-charge or rent-seek may be constituted in either of these ways (9); rent service in the latter only. [Rent is, regidarly, due and payable upon the land from which it issues, if no particidar place is mentioned in the reservation (7'). But in the case of the sovereign, the pay- ment must be either to the crown's officers at the Exche- quer, or its receiver in the country (s). And, strictly, rent is demandable and payable before the time of sunset of the day whereon it is reserved (t), though perhaps not absolutely due till midnight (u).~\ By the common law, if the estate or interest of the person entitled to any rent determined in the interval be- tAveen one of the days of payment and another (as by his death, supposing him to be tenant for life,) the periodical sum then accruing was entirely lost to him and his repre- sentative (a;) ; and supposing the rent itself not to deter- mine, but to continue payable to some person in remainder or reversion, the whole sum accruing in respect of such (0) See Musgrave v. Emmerson, & N. 184, and Tutton v. Darke, lb. 16 L. J. (Q. B.) 174. G47. (p) Anon. V. Cooper, 2 Wils. 375. (m) 1 Saund. 287 ; Prec. Chanc. {q) See Litt. ss. 217, 218. 555; Salk. 578 j Lord Rockingham (r) Co. Litt. 201 b. v. Penrice, 1 P. Wms. 178. (,?) 4 Rep. 73. (x) See Jenner v. Morgan, 1 P. (t) Co. Litt. 202 a; 1 Anders. Wms. 392, 253. See Acocks v. Phillips, 5 H. CHAP. XXIII.— OF INCORPOREAL HEREDITAMENTS. 687 interval woiild belong to that person, though the greater portion of it should have elapsed in the time of his pre- decessor. But by 4 & 5 AVill. IV. c. 2 2 (y),— passed 16th June, 1834, — it is jjrovided, that in case of any rent sendee reserved on a lease made subsequent to the Act, by a tenant in fee or for life, or person demising imder a jjower— and also in case of aU other rents and fixed periodical payments of any description payable under any instrument executed, or (in case of a will) coming into operation after the pass- ing of that Act — t here shall be an apportionment thereof , whenever the interest of the person entitled to the same determines by death or otherA^^se ; so that the executors, or administrators, or assigns of such person, or the person himself, as the case may be, shall be entitled to a propor- tion thereof, according to the time that elapses betAveen the last period for payment, and such the determination of his mterest. But this is subject, in the case of rent re- served by lease of lands and tenements, to a proviso that such apportionment shall not be claimed fi-om the party liable under the lease ; who is still to make payment of the whole to the party who would have been entitled if the Act had not been made : the latter, however, being made ac- countable, both at law and in equity, to the person claim- ing the apportionment (z). There is also another kind of apj)ortionment, as where th e tenant under a lease has been CAacted of part of the land out of which the rent issues, by a person ha-sing title paramount to that of the lessor ; o r where part of it ha s been sim-ende red by the tenant to the lessor ; or where the lessor has aliened the reversion as to part . In all these cases the rent must be apportioned (a) ; and so much of it {y) Before this statute an appor- annual sums made payable by any tionment had been provided for by policy of assurance; nor to any case 11 Geo. 2, c. 19, in the particular in which a stipulation has been made case where, on the death of a tenant that no apportionment shall take for life, the lease, under which the place. (Sect 3.) rent was reserved, determined. (a) Co. Litt. 148 a ; Bliss v. Col- («) The Act has no application to lins, 5 Barn. & Aid, 87(). 688 BK.II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. only shall be payable to tlie lessor, as corresponds vnth the value of what is still held bj^the tenant imder him ; though where the tenant has been tortiously expelled by the act of the landlord himself even from a part of the premises only, there shall be no apportionment, but the whole rent vn\\ be suspended so long as the expulsion con- tinues (6). The doctrine of apportionment, however, is not confined to rent, but applies to some other kinds^of incorporeal hereditaments (c). For if a man, seised of forty acres of land, to which common of pasture is aj)pur- tenant, ahenes five acres of it to another, the ahenee will be entitled to common pro tanto ; that is, for all his com- monable cattle levant and couchant on the five acres id). With regard to the remedies for the recovery of rents, including the doctrine of distress — these belong properly to a subsequent part of these Commentaries ; which mil treat of ci^-il injm'ies, and the means by which redress for them may be obtained (e). Having now taken notice of such particular incoqooreal hereditaments as appeared to be fit for the present to en- gage our attention, we shall advert in conclusion to some of the principal points of learning relative to this di\asion of things real, when considered in a general view ; and mthout reference to the indi^ddual species of which they are composed. In the first place then we may remark, that many incor- poreal hereditaments are capable of being either annexed as an accessoiy to some hereditament corporeal, or of ex- isting independently, and per se ; being described, in the former case, as appendant or appurtenant, in the latter, as in gross (/). But to be connected as principal and acces- (J) Gilb. Rents, 178; Neale v. (d) Wyat Wild's case, 8 Rep. Mackenzie, 1 Mee. & W. 747. 78 b. (c) As to apportionment of rent (e) Vide post, bk. v. c. i. or fine, on lands acquired under the (/) Co. Litt. 121 b, 122 a. The Church Building Acts, see 17 & 18 accessorium of the civil law is that Vict. c. 32. * which answers best to our terms of CHAP. XXIIT. — OF INCORPOREAL HEREDITAMENTS. 689 soiy, things must of course be of a natui'e suitable to that relation ; and therefore hereditaments corporeal cannot be appendant or appurtenant to corporeal, nor incorporeal (generally speaking) to incorporeal {g), Wliere the con- nectionTxists, the effect is that the thing appendant or appm-tenant A\all pass (-without any particidar mention of it) by any conveyance or alienation of the land to which it is annexed ; and this whether the land be conveyed eX' pressly " with its appurtenances " or not(/i). But if the pi-incipal be conveyed without the accessory, or the acces- sory without the principal — as in some instances may be done (i) — the accessory becomes thereafter^ in either case, a thing in gross. In coiijoreal hereditaments are not, in a strict and proper sense, the subjects of tenure, like those of the corporeal kind {j ) ; but they satisfy, in general, the legal descrip - tio n of tenements, and are exp ressly held to be mthi n the meaning of that word as used in the statute De Donis, s o as to be capable of being entailedjji). And where an in- corporeal hereditament is appendant or appm-tenant, it will of course be subject, in respect of the land to which it is annexed, to all the rules of tenure. The same e states may be had in incorporeal as in cor- appendant or appurtenant. Co. Litt. (e) Plowd. 381 ; Com. Dig. Ap- by Harg. 121 b, n. (6). As to the pend. and Appurt.(D.); 2Saund. 32. difference between these terms, Lord {j) Co. Cop. 97; Co. Litt. 20 a; Coke remarks, " that appendants are Bac. Ab. Tenure (A.). It is observ- " ever by prescription, but appur- able, however, that under the feudal " tenants may be created, in some system, as it formerly prevailed on " cases, at this day." — Co. Litt. the continent, not only lands, but 121 b. " casual rents, such as the profits of {g) Co. Litt. by Harg. 121 b, n. " a toll, the fare paid at ferries, the (7); Potter v. North, 1 Vent. 386; " salaries of offices, and even pen- Plowd. 85, 168, 170 ; Capel v. Bus- " sions, were held as fiefs, and mili- zard, 6 Bing. IGl. " tary service performed on account (fe) Co. Litt. 121 b, n. ; Barlow v. "of them." — Robertson's Charles Rhodes, 3 Tyr. 280 ; James v. Plant, V. vol. i. n. (8). 4 Ad. & El, 749 ; et vide sup. p. 492. {k) Vide sup. pp. 247, 56G. VOL. I. YY 690 BK. II. OF RIGHTS OF PROrERTY. — FT. T. THINGS REAL. poi'eal hereditaments, and in many respects tliej are upon the same footing with rej2,'ard to title , or the manner in whicli estates are acquired or lost . More parti(;ularly we may notice, that though the former subjects of property are intangible in their nature, yet they are substantially in the same predicament with the latter, even in regard to some of those laws of title which are founded upon an actual seisin or occupation. Thus with respect to descent, the rule of seisina facit stlpitem (l) has the same aiDplication to things incoi'poreal as to coi"})orea i; that is, it governs, since the Inheritance Act (3 & 4 Will. IV. c. 106), all descents which took place on a death prior to the 1st of January, 1834 {m). For if a man w^ho died before that day had what is equivalent to corj^oreal seisin in hereditaments that are incorporeal (w) and in gross, — for of those that are appendant or appm*tenant we do not speak, as they follow the land to which they are annexed (o) — thus, if in the case of a rent he had obtained the actual receipt of it (jp), such constructive seisin makes him the root of descent "with re- spect to these hereditaments (jq), though he was not him- self the purchaser. But upon more recent successions, the universal rule before laid down as to corporeal, obtains also to incorporeal hereditaments, that descent is to be traced from the purchaser (r). So heredit aments of the latter, a s well as of the foiiner description, fall within the doctrine (Z) Vide sup. p. 399. served, however, that it is not in the (na) No descent prior to tliat day nature of all incorporeal heredita- was within the operation of the in- ments to admit of this constructive heritance Act; vide sup. p. 394, possession. Thus Lord Coke makes n. (i). an expvess exemption of Dignities, (/i) 2 Bl. Com. 212. in which he says a man cannot by (o) Co. Litt. by Harg. 15 B. n. any'act "gain more actual posses- (1) ; Watk. Desc. 60, 6L " sion (if it may be so termed) than ( jb) 2 Bl. Com. ubi sup., who also " by law descended to him." — Rat- notices the instance of a presentation cliffe's case, 3 Rep. 42 a. to a church, in the ease of an ad vow- {r) 3 & 4 Will. 4, c. 106, ss. 1, 2 ; son in gross. vide sup. p. 394. {q) Co. Litt. 15 b. It is to be ob- CTTAP. XXIII. — OF IXCORPOREAL HEREDITAMEXTS. 691 of special occupancy ( s). For though it seems that at com- mon law there could be no title by common occupancy to things of which no corporeal or actual seisin could be had, yet the heir might take as special occupant {t) ; and incor- poreal hereditaments are now expressly included in all the legislative provisions with respect to estates pur autre vie, which w^e had occasion to notice in a former part of the work (m). But on the other hand, in some important jparticulars, the law of title, in incorjDoreal things, differs fi-om that which applies to things corporeal. For the foi-mer (that is, such of them as are in gross {x), to which alone we would be understood to refer Avhen the contrary is not expressed) cannot in their nature -^ii&^hj feoffment, this implying, as we have seen, an actual livery (?/). But they are capaBle in every instance of passing by grant {z) ; and therefore they are said (like remainders and reversions of hereditaments corporeal) to lie in grant, and not in livery (a). In this, however, we refer not only to a grant properly so called, but also to a surrender, if by deed {b), and to a con- Yeyance operating under the Statute of Uses (c), for every existing incorporeal hereditament may be limited to a use, and such use will be executed (as in the case of a convey- (s) Vide sup. p. 454. confidence ; (see Welcome v. Upton, (<) Bearpark v. Hutchinson, 7 6 Mee. & W. 536.) A grant, it will Bing. 18C ; see 2 Bl. Com. 259. be recollected (vide sup. p. 519), ini- (m) Bearpark v. Hutchinson, ubi plies a deed, i. e. an instrument sup. ; vide sup. p. 255. under seal. Without deed, an in- (i) Those that are appendant or corporeal hereditament will not pass. appurtenant will pass (as before ob- (Wood v. Leadbitter, 13 Mee. & W. served, sup. p. 689), by the con- 838.) veyance of the land to which they (a) Formerly, on the other hand, are annexed. corporeal hereditaments were said (j/) Vide sup. p. 260. {e converso) to lie in livery and not (z) 2 Sand. Us. 33, 36, 37, where in grant. But this, as we have seen, the only exceptions mentioned are is now altered by a recent statute ; the cases in which the policy of the vide sup. p. 520. law forbids any assignment at all, as (b) See Co. Litt. 338 a. in the case of an office of trust and (c) Vide sup. p. 537. Y y2 692 RK. II. OF RIGHTS OF PROrERTY. — VT. I. THINGS REAL. auce of land)Jbj tlie stabjite (d). Nor is It by grant alone, that title may he made to an incorporeal hereditament. This indeed is the only universal method; hut there are others appHcable to j^aiticular cases. For, first, rents may be created by reservation {e) in a lease or other convey- ance (/ ) ; as Avhere a man seised in fee demises land to another for life or years, the latter jneldiug and paying for the same a certain sum of money. Again, there are cer- tain hereditame nts which may be claimed by cu stom ; as for all the inhabitants ^f a certain hamlet to have a right of way over a certain field for a particular purpose (]jropriate to incorpor eal as distinguished fi- om corporeal hereditament s; viz. tha t th'e former are capable of extinction, in a manner peculiar t o themselv es. ^I'lius, tliey may be extinguished by re- lease{b); as Avhen a person entitled to common, releases it to the owner of the soil over which it is claimed (c). And after disuse of them for twenty years, a release will in general be presumed (c?). So they max.be extinguished (x) See Beeston v. Weate, 5 Ell. Tailors' Company, 11 Exch. 855. 6 Bl. 986; Muigatroyd «;. Robinson, {h) Co. Litt. 280 a, 270 a; Litt. 7 Ell. & Bl. 391. s. 479, 480 ; see Lovell v. Smith, 3 (j/) As to a prescription for light, C. B. (N. S.) 127. under this statute, see Harbidge v. (c) As to the extinguishment of Warwick, 3 Exch. 552. common by a release of it as to part (z) As to interruption, within this of the land over which it is claimed, section, see Plasterers' Company v. or by purchase of part, see Benson Parish Clerks' Company, 20 L. J. t). Chester, 8 T. R. 401. (Exch.) 362. i'i) Moore v. Rawson, 3 Barn. & {a) See Truscott v. Merchant Cress. 339. CHAP. XXIII. — OF INCOEPOEEAL, HEREDITA3IENTS. 701 by unity of seisin ; as where the person entitled to a way or common becomes seised in fee, by purchase or other- A\dse, of the land which is subject to the right. For the dominion of the soil itself, and of an incorporeal right relating to the same soil, cannot in general subsist to- gether in the same individual ; because as soon as they are combined in his person, the latter right, being merely of a particidar and subordinate kind, is absorbed and extin- guished in the superior title of general ownership (e). ^o this, indeed, there is an exception in the case of fran- chises (f ) ; which, as before remarked, are of a nature collateral to the inheritance itself, and are consequently not affected by unity of seisin {g)'J Even these, however, may be extinguished by a re-union -with the CrowTi, from which they emanated ; or by forfeiture for misuser, that is, such use of them as is contrary to the express or imphed condition on which the royal grant may have proceeded ; or by forfeitui'c for nonuser, as if a \aU wa s inco rporated by the king, before the commencement of the period of legal memory, and that franchise has neyer^ been acted upon since (h). Lastly, we maj remark as to some par- ticular species of incoi^ooreal hereditaments, viz. lights an^ water-courses, that, as they are acquired by mere occupancy, they are in like manner capable of being ex- tinguished after their acquisition, by a simple act of abandonment ; tEatls^ loj the mere discontinuance of the enjoyment, though for a period short of twenty years; provided, however, that the abandonment be absolute, — for if it take place under circumstances which imply the intention of futiure resumption mthin a reasonable time, t he right in that case will not be losj; (i). (e) See 4 Rep. 38 a ; Cro. Eliz. (g) Vide sup. p. 678. 570 ; 3 Taunt. 24 ; Whallcy v. (h) 3 Cruise, Dig. 302. As to Tonipson, 1 Bos. & Pul. 371 ; War- the re-grant of a franchise, see Col- hurton v. Parke, 2 II. & N. 64. As Chester v. Brooke, 7 Q. B. 385. to the extinguishment of a right of (i) See Liggins v. Inge, 7 Bing. way by unity of possession, see Win- 692; StokoiJ v. Singers, 8 Ell. & Bl. ship V. Hudspeth, 10 Exch. 5. 31. (/) 4 Inst. 318. V Y 7 702 BK. II. or EIGHTS of ntoPEiiTY. — rx. i. things real. CHAPTER XXIV. OF RECENT PROVISIONS FOR THE PROTECTION OF PURCHASERS AND MORTGAGEES AGAINST INSE- CURE TITLES. The new pro-snsions for the protection of purchasers and moi-tgagees for vahiable consideration, against insecure titles, to which we formerly refen-ed(a), demand some fiu'ther consideration before this -v'olume closes. They are contained in the statutes of 25 & 26 Vict. c. 53, in- tituled " An Act to facilitate the Proof of Title to and " the Conveyance of Real Estates," and the 25 & 26 Vict, c. 67, intituled "An Act for Obtaining a Declaration of Title," which are to be taken in_connexion vnth General Orders made and published by authority, since the Acts passed. The recourse to these pro^dsions is left entirely at the option of the landholder, so that it is doubtfid to what extent the Acts may ever come into practical opera- tion; and the modes of proceeding which they sanction, are also at present wholly untried, and have never been illus- trated by a single judicial decision; — a state of facts which would make it premature to descant at any length upon the new enactments ; but the extracts wliich follow may be acceptable, as sufficmg to illustrate the general plan under each of these Acts. The 25 & 26 Vict. c. 53, establishes an office, to be called the " Office of Land Registry (6) ; and jgrovides (among other thmgs) that the owner of the fee simple of an (a) Vide sup. p. 620. {b) 25 & 26 Vict. c. 53, s. 108. CII. XXIV. — PROVISIONS AGAINST INSECURE TITLES. 703 estate of freehold tenure may apply to an officer, called the Registrar (c), to have the title " registered as indefea- sible (c?)^" but that no title shall be accepted for that purpose, unless, on examination, it shall appear to be such as a court of equity woidd hold to be a valid marketable title (e). If it appears to be such, the applicant is to famish to the re- gistrar an exact description of the lands (y), and a state- ment of the mortgages, charges, and incumbrances affecting the same, or any part thereof (^) ; and he is to have power by inquiry to ascertain the accuracy of the description {h ), and then, if satisfied ^dth the title, to require notice to be given by public advertisement of his intention to register the land with an indefeasible title, at the expiration of a period of not less than tlu-ee months {i); a copy of which notice is to be ser\^ed on all j^roper persons, including every adjoin- ing occupier, and the person to whom he pays rent, and the lord of the manor (J). The applicant also, and his so- licitor or agent, or certificated conveyancer, and such other person or persons as the registrar shall require, shall make oath that aU deeds and writings relating to the title, and all facts matei'ial to the title, and all incumbrances, have, to the fullest extent of their respective knowledge and belief, been made known to the registrar (A). At the time and place in the notice mentioned, any person may attend and show cause before the registrar, by affidavit or otherwise, against the registration {I ) ; but if none is shoAvn, or none shown that is sufficient, the registrar shall proceed to complete (e) 25 & 26 Vict. c. 53, s. 108. messuages, tenements and heredi- (d) Sect. 2. Application may laments, corporeal and incorporeal. also be made under this Act for (Sect. HO.) " registration without an indefeasible (g) Sect. 7. title," and for " registratio7i of lease- {h) Sect. 10. hold estates," sects. 25, 26. {i) Sect. 11. (e) Sect. 5. (j) Sect. 12. (/) The word "land" in this {k) Sect. 22. Act includes (unless the provisions {I) Sect. 13. require a different construction) 704 BK.II. OF RIGHTS OF PEOPEKTr. — PT. I. THINGS EE^U:.. the same, by entering in a book, to be called the " Record of Title to Land on the Kegistry," an exact record of the existing estates, powers and interests in the land, and by entering in a book, to be called the " Register of jNIoi-tg-affes and Incumbrances," an account of all the charges and incumbrances (w). It is further enacted also, that, fi-om and after the registration, every estate or interest arising or^ created in the land, or any part thereof, (except as in the Act is excepted,) shall be entered in the record of title, or register of incumbrances, to be so kept as aforesaid {n). An indefeasible title to the land being thus registered in pursuance of the proprietor's ap- plication ; — the effect of it is stated as folloAvs: that, "sub- " ject to any exception, qualification, or condition mentioned " in such record of title, and to any right or interest thereby " reserved, and to any registered charges or incumbrances, " and to such charges and interests as are in the Act de- " clared not to be incumbrances (o), the persons originally, "and from time to time, named and described in such " record of title as aforesaid, shall, for the purposes of any " sale, mortgage, or contract for valuable consideration, by *' such persons respectively, be, and be deemed to be, as " fr'om the date of registering such record by the registrar, " or from such time as shall be fixed by him therein, abso- *' lutely and indefeasibly possessed of and entitled to such " estates, rights, powers, and interests, as shall be defined " and expressed in such record, against all persons, and *' free fi'om all rights, interests, claims, and demands what- " soever, including any estate, claim or interest of her " majesty, her heirs and successors (p)." In addition to (to) 25 & 26 Vict, c. 53, s. 14. by reason of tenure, rights of way, (jj) Sect. 32. watercourses, rights of water and (o) These are land tax, succes- other easements or servitudes, rights sion duty, tithe rent charges, rents of common, manorial rights and fran- payable to the crown, public rights chises. (Sect. 27.) of way, liability to repair highways (/)) Sect. 20. en. XXIV. — PROVISIONS AGAINST INSECURE TITLES. 705 which, it is also enacted, that every person having a suffi- cient estate or interest in registered land, may by will, deed, or other instrument, create the same estates and in- terests, and enter into the same contracts and engagements with respect to such land, as he might do if the land were not registered; provided always, that no unregis- tered estate or interest, contract or engagement, for the registration whereof provision is made by that Act, shall prevail against the title of any subsequent purchaser, for valuable consideration, duly registered under that Act {cj). The Act also contemplates the further convenience to the parties of enabling them, if they think proper, and so far as they may find it practicable, to escape the length and intricacy now ordinarily incident to conveyances, — for it provides, as to all registered land, that it may be conveyed and charged, not only by the instruments appli- cable to unregistered land (r), but by what it terms a statutory disposition, — examples of which are set forth in a schedule subjoined, and which in length never exceed a few lines. To what we have here extracted fi-om this statute, our object only leads us to add, that as regards the proprietors of land in Yorkshire and Middlesex, it will not be attended with the inconvenience of subjecting them to two different systems of registration, it being provided that the jprovi- sions for registries in those counties, of which we had before occasion to speak {s), shall cease to be applicable as soon as the same land has been put upon the register, under the statute now in question, and while it remains thereon {t). The Act of 25 & 26 Vict. c. 67, (after reciting that it (5) 25 & 26 Vict. c. 53, s. 74. cannot be created in registered land (r) It is not universally true that by a deposit of title deeds, though the methods of conveyance appli- it may by the deposit of an instru- cable to unregistered land are appli- ment described in the Act as a land cable also to registered land, for certificate. there is this exception, that an equi- (.«) Vide sup. p. G20. table mortgage (vide sup. p. 310, n.) (t) 25 & 2(i Vict. c. 53, s. lO*. VOL. I, Z Z 706 BK.II. or RIGHTS or TROPERTY. — PT.I. THINGS REAL. is expedient to enable persons liaving- interests in land (u), to . obtain, in certain cases, a judicial declaration of tlieir title, so as to enable them to make an indefeasible title to persons claiming- under tliem as purchasers for a valuable consideration,) directs (among other things) that eyery person entitled to apply for the registration of an inde- feasible title to the registrar appointed under 25 & 26 Vict. c. 53, may apply to the Court of Chancery by peti- tion, ^h~ar smnmary way, for a declaration of title {x), but that no such petition shall be admitted, as to lands of copyhold or customary tenure (z/). It provides that the Court may require that the registrar under 25 & 26 Vict, c. 53, shall be served -odth notice of such petition, and he shall thereupon be made a party to, and attend, the pro- ceedings (z). And fm-ther, that the Court, on the hearing of the petition, and on being satisfied that the petitioner has proved such a possession and stated such a title, as if established would entitle him to a declaration under that Act, shall make an order for investigation of the title in the same way as if he had obtained, as vendor, a decree for a specific performance of an agreement for sale of the land in question, for the estate claimed in his petition (a). And that after such an investigation, if the Court is satisfied that the petitioner has shown such a title as it would have compelled an unwilling purchaser to accept, it shall (on the con- ditions in the Act mentioned) make an order, that, on some day not less than three months afterwards, a declara- tion shall be made establishing the petitioner's title ; imless, (u) The word " land" in this Act " vested or contingent, or claiming to shall not, unless the provisions re- " have a power of disposing of land quire a different construction, in- " for his own benefit for an estate in elude any incorporeal hereditaments. "fee simple in possession, either ahso- 25 & 26 Vict. c. C7, s. 48. " lately or subject to any incumbrances, (a:) Sect. 1. This application may " estates, rights or interests, vested or 2Xso he vaaAe hy " every person claim- ^^ contingent.^' Ihid. " ing to be entitled to land in posses- (y) Sect. 4. " sionfor an estate in fee simple, either (z) Sect. 5. " absolutely or subject to any incum- (a) Sect. G. '' hrances, estates, rights or interests, CII. XXIV. — PROVISIONS AGAINST INSECURE TITLES. 707 in the meantime, cause is sliown to tlie contrary (Z») ; but that no such order shall be made, until the petitioner and his sohcitor, and any other person whom the coiui: may require, shall have made and filed an affida^dt, that, to the best of their respective knowledge and behef, all instru- ments and papers relating to the title have been produced to the court, or that the cause of their non-production has been fully and fairly explained, and that all facts material to the title have been fully and fairly disclosed to the court ; it being also pro^aded, however, that such affida^^t may be dispensed with or modified by the coiu*t, according to circmnstances (c). In order to secure the object of ap- prizing all proper persons of the opportunity of showing cause against the making of the declaration, it is further enacted, that a copy of the order shall be served on such persons, and deposited in such place, as the Act de- scribes, for inspection, and notice of such deposit shall be also affixed in such place as it describes {d) ; and that after such deposit has been made, the petitioner shall cause advertisements to be inserted, thi-ee times at least, in such newspapers and on such days as the court shall direct, stating the order, and also stating where any copy has been so deposited for inspection (e). And that, unless the last of such advertisements is made within four weeks next after the date of the order, the time thereby fixed for showing cause against the same shall be enlarged as the court shall direct (/). And further, that if no petition has been presented against the proposed declaration of title mthin the time limited for that pm-}:)0se, or if one has been presented, but the court is of opinion that no sufficient ground has been shown for reftising to make the declaration, t hen the court, upo n_J)eing_satisfied that aU requisitions have been duly complied mth^ shall make a declaration that the petitioner has such title to (i) 25 & 26 Vict. c. G7, s. 8. & 26 Vict. c. 67.— Scheds. 4, 5. (c) Sect. 10. (e) Schcd. 7. {d) See schedules subjoined to 25 (/) Schcd. 8. z z 2 708 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the lands in question, as he sought to establish bj his petiHou, or such title subject to any qualifications which it may deem necessary or proper to introduce {(j). And further that eveiy declaration of title under the Act, may, at the option of the person obtaining the same, be registered as an indefeasible title under 25 & 26 Vict. c. 53 (Ji). A declaration of title to the land being thus obtained, in pur- suance of the proprietor's petition, the effect of it is stated as follows : — " that such declaration of title, as soon as it *' shall have become final for the piu^ose of this Act, shall " in Tavour of any person thereafter deri\-ing title as a pur- *' chaser, for valuable consideration, of the land therein *' referred to, or of any part thereof, or of any estate, " right or interest therem, from or under the person whose " title has been so declared, be deemed and taken to have " correctly declared the same ; but save as aforesaid, such " declaration shall have no force or effect whatever as to " the title of the land comprised therein " (i). The whole law relative to the rights of property in things real, (exclusively of what relates to their violation, and to the remedies in such case provided,) has now come, in due order, under discussion ; and the second part of the present Book of these Commentaries — the part relating to Things Personal — will be entered upon in the next volume. The subject which has thus employed our attention is of very extensive use and importance, but it must be con- fessed, not very attractive at the first aspect. [To say the truth, the vast alterations which the doctrine of real pro- perty has undergone fr'om the Conquest to the present {g) 25 & 26 Vict. c. 67, s. 15. ways by reason of tenure, rights of (/i) Sect 21. way, watercourses, rights of water (i) Sect. 24. By sect. 29 the de- and other easements or servitudes, claration of title shall not affect manorial rights and franchises, leases land tax, succession duty, tithe rent or agreements for leases for any charge, rights of common, rents term not exceeding twenty-one years, payable to the crown, public rights where there is occupation under the of way, liability to repair high- same. CH. XXIV. — PROVISIONS AGAINST INSECURE TITLES. 709 [time; the infinite determinations upon points that con- tinually arise, and which have been heaped one upon another for] so many [centiu*ies "udthout any order or method ; and the multiplicity of acts of parliament, Avhich have amended, or sometimes only altered, the common law, — these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been our endeavour principally to select such parts of it as were of the most general use, where the prmciples were the most simple, the reasons of them the most ob- vious, and the practice the least emban-assed. Yet it is not to be presumed that we have always been thoroughly intelligible to such readers, as were before sti-angers even to the very terms of art of which we have been obliged to make use ; though whenever those have first occuiTcd, w^e have generally attempted a short explication of their meaning. These are indeed the more numerous on account of the different languages which our law has, at different periods, been taught to speak ; the difRcidty arising from which will insensibly diminish by use and familiar acquaint-, ance. And therefore we shall close this branch of our in- quh'ies with the words of Sir Edward Coke(/e), — " albeit " the student shall not, at any one day, do what we can, *' reach to the full meaning of all that we have laid do-uoi, " yet let him no way discourage himself, but proceed ; for ** on some other day, in some other place," (or perhaps upon a second perusal of the same,) " his doubts will be *' probably removed."] {k) Proeme to 1 Inst. END OF THE FIRST VOLUME. INDEX TO THE FIRST VOLUME. Abeyance, 231, n., 241, 327, n. Abjuration of the realm, 146. Abolition of fines and recoveries, 583. of colonial slavery, 111. of mib'tary tenures, 209. Abridgments (or digests) of the law, 53. Abstract of title, 491, n., 499, n. Accumulation of income, 563. Acknowledgment by mortgagee of right of mortgagor, 311. of married wo- men, 591. of vassalage, 180. Active trusts, 374. Act, statute law revision, G9, n. Act of parliament, 69, 622. how cited, 70, n. Acts local and personal, 71. public and private, 70. private, 622. relating to India, 117, n. relating to the colonies, 108, n., 110, n. Admeasurement of dower, 277, n. Admiralty courts, 68. jurisdiction of, 119. Admittance to copyhold, 641, 613. Ad ostium ecclesios, dower, 276, 2S4, Ad quod damnum, writ of, 463. Adultery, effect on dower, 273. Advowsons, 656. Africa, acts relating to, 1 08, n. Aggregate corporation, 362. Agnati, 417. Agreement — see Contract. to let, 522. Agriculture, introductory of pro- perty in land, 160. Aids, feudal, 182, 207. in knight service, 200. in socage, 213. parliamentary, 170. Air, right to, 164. Alderman, 130. Alderney, island of, 103. Alfred, his laws, 42, 127, n. Alienation by infants, 481. by married women, ib. by particular tenants, 408. byspiritual persons,478. fine on, 182, 204, 214, 227. forfeiture by, 468. in copyhold, 227. in general, 201, 214, 471 — see Convey- ANCF.S. in mortmain, 459. of settled estates, 481. 712 INDEX. Alienation, restraint of, 475. to corporations, 459. under duress, 481. Aliens, 1.38. cannot hold real property, 482. cannot take by descent, 442. tracing descent through, 444. Allodial property, none in Eng- land, 190, 237. Allodium, 178, 190, 237, 397. Allotments under inclosures, 666. Alluvion, 457. Alteration of deeds, 505. of wills, 608. Ambiguity in a deed, 508. in a will, 610. latent and patent, 508. American colonies, acts relating to, 108, n. revolt of, 106. Ancestors, 237, 392, 695. Anglo-Saxon laws, 41. Animals, ferre naturre, 164, 673. Annuities, 655, n., 657, n., 681, 684. Antient demesne, 228. Apparent, heir, 392. Appendant, or appurtenant, com- mon, 658, 659. Appointment under a power, 557. Apportionment of rent, 266, 687. Appropriation of tithes, 121. Approving common, 663. Appurtenances, 492. Appurtenant, or appendant, com- mon, 658, 659. Arbitrary fines, 636. consecration of tithes, 121. Archbishop's province, 119. Archdeaconry, 120. Aristocracy, form of government by, 32. Arms, right of having, 154. training to the use of, 155. Articlesof union with Ireland, 99. with Scotland, 89. Ascending line formerly excluded from inheriting, 412. may now inherit, 414. Assensu patris, dower ex, 276. Assent, royal, to a statute, 73. Assets, 434. Assignee of lease, 521, 534. of reversion, 307, 524. Assignment, 521, 533. ofcontingentinterests, 476. of dower, 277. of right of entry, 307, 476. of satisfied terms, 385. of term, 521. Assigns, 473. Assisa utrum, 231, n. Assize of arms, 202. rents of, 635, 684. Assurances, common, 486. Atholl, Duke of, rights of, in Isle of Man, 102, 103. Attainder, 146,446,477. effect on dower, 274. Attendant term, 386. Attestation of a deed, 503. of a will, 605. Attornment, doctrine of, 472, 474, 521. Augmentation of poor livings, 465. Aula regis, 16. Australian colonies, acts relating to, 108, n. Autre droit, land held in, 323. Autre vie, tenant pur, 260, 264. Averium, 637. B. Bacon's Abridgment, 53. Bail, excessive, 150. INDEX. 713 Bailiffs of hundreds, 129. Banishment, 152. Bankruptcy, 256, 316. Bargain and sale, .365, 539, 541. with release, 546. Bar of dower, 273, 278. Baronies, or manors, 220. Barrister-at-law, degree of, 20. Barristers, 17-^19. Base fees, 244, 249, 587. services, 191. Bastard cannot be heir, 440. eigne, ib. Battery, fear of, no duress, 145. Beast, best, heriot of, 637. Beasts of forest, chase, park and warren, 673. Benchers, 20. Benefice, afterwards called feud, 178. Benevolences, 170. Berwick-upon-Tweed, 85, 93. Bill, for letters patent, 626. of foreclosure, 313. to redeem, 312, Bishoprics, 1 1 9. colonial, 105, n. Indian, 114. number of, 120. Bishops, 119. Bissextile year, 288. Black mail, 685. Blanch holding, 685, n. Blood, corruption of, 445. inheritable, 438. of the purchaser, 400. whole and half, 422, 424, 427. Board of Control, 113. Bodily rights, how protected, 143. Body corporate, 362. Bombay, bishop of, 115. Borough, definition of, 128. English, custom of, 55, 57,216. Borough rate, in the nature of county rate, 133, n. Borsholder, 127. Botes, by tenant for life, 262. by tenant for years, 293. Boundaries of parishes, 126, n. Bracton, 52. Breach of covenant, 498, 524. Breaking the descent, 432. Brehon law, 94. Brevia testata, 503. Bridgman, Sir Orlando, 337. British Columbia, acts relating to, 108, n. constitution, 33. islands, 101. subjects, 138. Britons, laws of antient, 42. Brooke's Abridgment, 53. Brothers, descent between, nature of, formerly, 421, 444. Burgage, tenure in, 215. Calcutta, Bishop of, 115. Calendar month, 289. Call to the bar, 20. Canada, acts relating to, 108, n. Cancelling deeds, 505. wills, 008, Canon law, 8, 12, 17, 65, 67. Canons of descent prior to 1st January, 1834.. 394, n. since 1st Jan- uary, 1834, 394—429. Capacity to purchase or convey — see Alienation, Conveyances. Capita, succession per, 410. Capital punishment, 148. Capile, tenants in, 190, 201, 214, 240, 474. 714 INDEX. Catalla, 2SG. Cart-bote, 262. Census of 1861.. 138, n. Centenariiis, 130. Central Criminal Court, 132, n. Certain services, 191. Cession, colonies gained by, 104, 105. Cestui que trust, 376. use, 361, 367. vie, 261. Channel Islands, 103. Charge in equity, 257, 383, 639. Charging real estate with payment of debts, 436, n. Charitable uses, 256, 466, 603. Charta de Foresta, 676. Charter or deed, 487. Chase, 678. Chattels, 286. personal, 287. real, 172 n., 286,287. Chester, county palatine of, 133. Chief rents, 684. Child in womb, 143. Chirograph, 489, 570. Chivalry, tenure in, 193. abolishment of tenure in, 209. Churches, parish, 122. Circuits of the judges, 132. Civil and criminal injuries, 142. death, 146, 261. division of England, 126. law, 8, 12, 17, 63, 65, 67. City, definition of the term, 128. Clementine constitutions, 65. Clergy, their introduction of the civil law, 12. Clerks, why so called, 1 1. Close (writ of right), 229. rolls, 626. writs, ib. Code of Justinian, 64. of Theodosius, ib. Codicil, 597. Cognati, 417. Cognizance, fine sur, &c., 570, 571. Cognizee of a fine, 569. Cognizor of a fine, ib. Coke, Lord Chief Justice, 51, 53. upon Littleton, 53. Collateral inheritance, 420. warranty, 496. College leases, 76, 478. Colonial bishops, 105, n. slavery. 111. Colonies, 103, acts relating to the, 108, n., 110, u. Colonizing, right of, 161. Comes, 130. Comites, 178. Commencement of operation of statutes, 73. Commissioners, copyhold, 650. for the affairs of India, 113. inclosure, 665. tithe, 650, n. Commonable beasts, 658. Common, appendant, 658. approving, 6G3. appurtenant, 659. assent of tlie realm, 170. because of vicinage, 659. fields inclosure Act, 664. inclosure of, 663 — 666. in gross, 660. in the soil, 662. law, 10, 41,45, 82. occupancy, 454, 455. of estovers, 662. of pasture, 658. of piscary, 661. of shack, 660. of turbary, 661. pleas, court of, 1 6. possibility, 333. recoveries, 253, 462, 576. sans nombre, 661. tenant in, 355. vouchee, 577. without stint, 661, INDEX* 715 Commons, 650. Communion of goods, 158. Compulsory aJmittance, G44. Computation of time, 288. Comyns' Digest, 53. Concessit, fine sur, 571. Conclusion of deeds, 499. Concord of a fine, 569. Condition, breach of, 304, 307, n., 309. estate upon, 303, 494. express, 304. illegal, 308. implied, 303. Impossible, 308. in deed, 306, 494. restraining alienation, 475. precedent, 304. repugnant, 308. subsequent, 304, 308. waiver of, 309. Conditional fees, 245. limitation, 805, 307. surrender, 645. Confirmatio chartarum, statute of, 201. Confirmation, 530. implied, 531. Conies, beasts of warren, 679. Conquest, colonies gained by, 105. Norman, 390. of Ireland, 94. of Wales, 85, 86. technical meaning of the term, 389, 426. Consideration of a deed, 505. Constable, high, 129. Constitution, English, 33, 148. of India, 1 1 7. Construction of deeds, 508. of statutes, 72. of devises, 609. of royal grants, 627. Consummation of the estate by curtesy, 271. Contingency, with a double aspect, 333. Contingent interests, alienation of, 176. Contingent remainder, 334, 339. uses, 368. Continual claim, 518. Contract by deed, 488. merger of simple, indeed, ib. social, 30. Control, Board of, 113, Conveyances, 165, 486. Act to facilitate, 702. at common law, 511. by aliens, 482. bv attainted persons, '477. by corporations, ib. by idiots, 480. by infants, 481. by insane persons, 480. by married women, 481,565. by matter of record, 512, 622. by tenants in tail, 565. by the crown, 625. of copyholds, 640. oiigin of, 165. practice as to pre- paring, 491, n. to uses to bar dower, 281. under the statute of uses, 537. Conveyancing, system of, 511. Coparcenary, 351. Coparceners, ib. Copyhold, 193, 219, 631—654. Acts, 650. admittance to, 641, 643. alienatioTi of, 640. commissioners, 650. commutation of fines, &c., 650. conveyance of 640. descent in, 226, 632, 640. devise of, 647. dower in, 634. equitable interests in, 649. enfranchisement of, 226, 639. estate, assets in the hands of heir or devisee, C38. 716 INDEX. Copyhold, estate tail in, 633. execution against, G38. extinguishment of, 226, n., 639. fines, lieriots, &c. in, 227, 6;35. forfeiture of, 227, 635. ior life or years, 632. free bencli in, 634. liability of, to payment of debts, 638. licence to demise, 640. mortgage of, 645. of inheritance, 226, 633. partition of, 349, n. quit rents in, 635, 684. rents of assize in, ib. surrender of, 641, 642. title to, 640. waste committed on, 634. Copyholders, formerly villeins, 224. Cornage, tenure by, 205. Corodies, 656, 657, n. Coronation oath, 91. Corporate counties, 137. Corporation, 128, 362, 460. municipal, 128, 478. purchases by, 477. alienations by, 478, 479. Corporeal hereditaments, 175. Corpus juris canonici, 66. civilis, 64. Corruption of blood, 446, present law as to, 451. Council of India, 116. of Governor-General in India, 116. Counsel, 17, 19. Count or comes, 130. Counterpart, 489. Counties, 130. corporate, 137. palatine, 133, 670. Counters, 18, n. Countries, subject to laws of Eng- land, 85. County Courts, 132, 302. members, 132. palaline, 133. rate, 133. Court baron, 220. christian, 67. customary, 225. of wards and liveries, 197. Courts of great session in Wales, 87. of the counties palatine, 134, 135. Covenant, in a conveyance, 498. in a lease, 523. running with land, 498, 523. to stand seised, 365, 539, 5^0. writ of, in a fine, 568. Creditors, simple contract, 435. specialty, 436. Crime, distinguished from civil in- jury, 142. Croke's Reports, 52. Cross remainders, 358. sign of, in deeds, 501. Crown grants, 452. hereditary succession and title to, 408, 426. Curialitas, 269, n. Cnjus est solum, ejus est usque ad coelum, 174. Curtesy, tenant by the, 269, 380. Custom, 41, 45, 46, 55. dower by, 276. heriots by, 635, 636. of borough English, 55, 57, 216. of gavelkind, 55, 57, 217. of London, 56, 58. of merchants, 56. particular, 55. rules as to validity of, 58 —61. trial of a, 57. Customary court of copyholders, 225, 641. freehold, 228, 230, 648, n. tenure, 228. INDEX. 717 D. Dane-Lage, 43. Date of a deed, 499. Day, legal, computation of a, 288. Deanery, rural, 120. Death, civil, 146, 261. Debts, specialty, liability of the heir on, 433. simple contract, heir's liability on, 435, Deceit, writ of, 648, n. Decennaries, 127. Declaration of Title Act, 702, 705. Declaration of trusts, 378. Declaratory statutes, 71. part of law, 35. Declaring uses of fine or recovery, 582. Decretals, 65. Decretum Gratiani, 65. Dedimus potestatem, writ of, 509. De donis statute, 247, 249, 255, 323, 566, 574, 033, 689. Deed, Acts for shortening lan- guage of, 491, n. ambiguity in, 507. attestation of, 503. avoidance of, 504. cancelling of, 505. conclusion of, 499. condition in, 494. consideration of, 505. construction of, 507. counterpart of, 489. covenants in, 498. date of, 499. definition of, 487. delivery of, 502. discharge of, 507. execution of, 503. habendum in, 492. inconsistent clauses in, 509. indented, 488. inter partes, 491. must be written or printed, 490. of release, 527, 540, 545. original and counterpart, 489. Deed or escrow, 503. poll, 489. premises in, 491. reading of, 500. recitals in, 492. reddendum in, 493. registration of, 621. release of, 507. requisites of, 489. sealing of, 500. signing of, ih. stamps on, 490. tenendum in, 492. to declare or lead uses of fine or recovery, 582. voluntary, 506. warranty in, 494. where requisite, 487. witnesses to a, 503. Defeasance, deed of, 535. Deforciant, 571. De la plus belle, dower, 276. Delivery of a deed, 502, De Mercatoribus, statute, 316. Demesne lands, 219. seisin in, 239. Demise, 521, 523 — see Lease. Demi-vills, 129. Democracy, 32. Denizen, 443. Dependencies, Colonial, 103. Deposit of title deeds, 310, n. Derby, Earls of, (formerly lords of Isle of Man,) 102. Dereliction, lands by, 457. of property, 164. Derivative or primary conveyances, 527. Descent, 166, 237,391. as if from the purchaser, 428, 429, 432, 439. breaking the, 432. by particular custom, 392. founded originally on the common law, 393. from the purchaser, 394. half-blood in, 422, 424, 427. 718 INDEX. Descent, in copyholds, 226, 632, 640. in feuds, ]S4. Inhc-ritancc Act, 393. origin of, 167. or purchase, 3S8. paternal line preferred, 415, 417. per stir])es, 409. per capita, 410. preference of males, 40.5. rules (or canons) of, prior to 1st January, 1834.. 394, n. since 1st January, 1834.. 394—427. special cases of, 428. Tables of, 394, 429. traced to lineal ancestry, 412. traced from person last entitled, as if he had been the purchaser, when, 429, 439. traced on faihn-e of male paternal line, how, 418. Detached parts of counties, 131, n. Determinationofestatesat will,296. Devise, 596—621. attestation of, 604, 606. by mariicd women, 602, n. by virtue of a power, 615. construction of, 609 — 617. executory, 619. is in nature of a declaration of uses, 618. lapsed, 613. meaning of "dying without issue," &c. in, 616. must be in writing, &c., 598, 601, 604, of a fee, without words of inheritance, 611, 612. of "all my lands and tene- ments," where it in- cludes lease for years, 615. of customary freeholds, 230, n. particular points of con- struction in, under new Will Act, 611—617. power to, 599, 600, 602. Devise, publication of, 604. residuary, 615. revocation of, 601, 60S. speaks as at time of death, 611, subject to rule against per- petuities, 619. to a charitable use, 602. to trustees, construction of, as to estate they take, 612. to heir, 403. to uses, 600. Devisee, liability of, for debts, 434. Digest, Justinian's, 64, Dignities, 656. descent of, among females, 408, 409. Diocese, 117, 120. Dioichia, 121, n. Directorj' part of law, 35. Disabling statutes, 72. DisafTorestment, 076. Disclaimer of estate, 482. of tenure. 470. of use, 371. Discontinuance of estate tail, 249, n., 469, 519, n. Disparagement of ward, 198. Displacement of reversion, Sec, 322, 409,519. Dispunishable for waste, 263. Disseisin, 319, 519. Distress, 682, 686. Districts, ecclesiastical, 126. Divesting reversion, &c,, 322, 519, n. Divine law, 24. service, tenure by, 232. Divisions of counties, 131, n. Divorce, effect of on dower, 273, Doctor and Student, treatise known as, 53. Dom-Boc of Alfred, 43, 44. Domesday Book, 187, Don, grant, et render, fine sur, 571. IXDEX. 719 Donis, statute de, 247, 249, 255, 574, Go3, GS9. Dos rationabilis, 283. Dotalitium, 273. Double rent, 300. value, ib. voucher, 577. Dower Act (3 & 4 Will. IV. c. 105), 282. action of, 277. ad ostium ecclesire, 276, 2S3. assignment of, 277. by particular custom, 276. de la plus belle, ib. ex assensu patris, 276. how barred, 278. how the wife shall be en- dowed, 276. of what wife is endowed, 272, 274, 380, 382. revolutions in the law as to, 283. who may be endowed, 273. Drainage, improvements, provision to facilitate, by, 267, n. Druids, 41. Duchy of Lancaster, 135. Durante viduitate, estate, 261, 265. Duress, of imprisonment, 152. per minas, 145. Durham, county palatine of, 133. Dyer's Reports, 52. " Dying without issue," words of in a devise, 616. E. Easements, 656, 699. East India Company, 112. East Indies, ib. Ecclesiastical commissioners, 1 20,n. courts, 67. division of England, 119. leases, '178. persons, alienation by, ib. 479. Edgar, king, his laws, 44. Edward the Confessor, his laws, 44, 189. Ejectment, action of, 579, n. Elegit, estate by, 303, 316, 383. Elopement and adultery, 274, 278. Ely, bishop of, 137. isle of, ib. Emblements, 264, 265" 266, 294, 295. Enabling and disabling statutes, 72, Enceinte, 336. Endowment — see Dower. Enfranchisement of copyholds, 226, 653. compulsory, 653. of the colonial slaves, 111. of the villeins, 222. England and Wales, Scotland and Ireland, population of, 138, n. ecclesiastical division of, 119. civil division of, 126. what it includes, 85. English constitution, 33, 148. laws, when in force in a colony, 108. Enlarger I'estate, release by way of, 527. Enlarging or restraining statutes, 72. Enrolment of bargain and sale, 543. Entails, 247—258. after possibility of issue extinct, 267, 590. barred by common reco- very, 253, 580. barred by deed under 3 Ss 4 Will. IV. c. 74.. 256, 583. barred by fine, 255, 574. do not merge in the fee, 323. effect of judgments on, 257. equitable, 589, 590. ex provisione virl, 581. female, 250. 720 INDEX. Entails, in copyhold, 633. in incorporeal heredita- ments, 689. in frank marriage, 251. male, 250. quasi, 455. special or general, 219, where the reversion or re- mainder is in the crown, 581. Entireties, tenants by, 347. Entry of lessee. 522. right of, 519. and feoffment, release by way of, 529. of heir, 432, 515. on breach of condition, 306, 307, 309, 524. of covenant in lease, 524. Equitable estates, 235,314, 360. mortgage, 310, n. Equity, 82, 375. in court of law, 314. of a statute, 75. of redemption, 311, 312. Escheat, 160, 183, 204, 214, 227, 437. propter defectum sangui- nis, 438. propter delictum tenentis, 445. Escrow, 503. Escuage, 200. Estate at sufferance, 299. at will, 295. by elegit, 316. by statute merchant, 314. by statute staple, ib. by the curtesy, 269. for life, 200. for years, 288. from year to year, 297. in antient demesne, 228. in common, 355. in coparcenary, 351. in dower, 272. in expectancy, 318. in fee simple, 238. in fee tail, 247 — see En- tails. in joint tenancy, 344, in lands, 234. Estate in mortgage, 311. in possession, 318. in remainder, 324. in reversion, 319. in severalty, 343. legal and equitable, 235, 314, 360. not of inheritance, 230. on condition implied, 303. on condition expressed, 304. particular, 319. of inheritance, 237. pur autre vie, 260, 456. real and personal, 286. upon condition, 303. Estates, settled, 257, 263, 272. Estoppel, 487, 488, n. Estovers, 262, 293. common of, 662. Ex assensu patris, dower, 276. Exchange of lands, 269, 524, 064, n. Executive and legislative powers, 32. Execution of deed, 503. Executory devises, 619. trusts, 372. uses, 553, 554. Exile, 152. Ex provisione viri, estate tail, 581. Expectancy, estates in, 318. Extinguishment of copyhold, 226, n. 639. of incorporeal he- reditaments, 683, n., 700. release by way of, 529. Extra-parochial places, 123. Extravagantes communes, 65. Joannis, ib. F. Failure of heirs of the purchaser, how lands shall descend on, 429, 439. of issue of the purchaser, how lands shall descend on, 412. INDEX. 721 Fairs and markets, 671. Falkland Islands, Acts relating to, 108, n. Farm (or feorme), 523. Fealty, 181, 252, 262, 633. Fee, base, 244. farm rents, 685. in abeyance, 241 . limited, 243, n. meaning of the word, 2. on a fee, 553. qualified, 244. simple, 238. simple absolute, 243. simple conditional, 243, 244. simple determinable, 243, n. simple qualified, 243. tail, 24S — see Entail. upon a fee, 553. words necessary to create a, 242. Female wards, marriage of, 199. Feme covert, conveyances by or to, 401,481, 591. will by, 602, n. Feodum (or feudum) militare, 193. talliatum,248, n. Feoffee, 236, 288, n. to uses, 364. Feoffment, 181, 236, 512. forfeiture by, 321, by insane persons, 480. to uses, 376, 537, 540. in gavelkind, 218. Feoffor, 236, 288, n, Feorme, 523. Ferae natura?, animals, 164, 073. Ferries, 671. Feud, (or fief,) 178, 237, 396. honorary, 184. military, ib. proper and improper, 185. Feudal system, origin of, 177. tenures, introduction into England, 186. Feudum (or feodum) antiquum, 397, 413. apertum, 438. VOL. I. Feudum improprium, 185. individuum, 407. novum, 397, 413. novum ut antiquum, 398, 413. paternum, 398. proprium, 185. Fidei commissum, 361. Fief — see Feud. d'haubert, 193. Fine, feudal, 573. on alienation, 182, 204,227, Fines in copyhold, arbitrary or certain, 636. Fines of record abolished, 256, 567, 583. and recoveries Act, ib. bound parties and privies, 572. discontinuance, 575. forfeiture by, 576. former force of, 572. levied by married women, ib. levied by tenant in tail, 255, 574. levied with proclamations, 57t), 573, 574. non-claim on, 573. partes finis nihil habuerunt, 574 — see Recovery. Fire bote, 262, 293. First fruits, 203. Fitzherbert's Abridgment, 53. Fish, property in, 679. Fisheries, ib. Fleta, 52, Folkland, 220. Foot of a fine, 570. Foreclosure, 313. Foreign dominions of the sovereign, 118. Forensic medicine, 8. Forest, franchise of, 673, 677. laws, 675. Forfeiture, 183, 204, 214, 304, 368. by alienation, 304, 322, 336, 468. on attainder, 201, 360, 440. 3 A 722 IXDEX. Forfeiture, in copyhold, 227, C35. in feuds, 183. of lease, 309, n, title by, 459. Formedon, 575. Fortescue, 52. Fowls of warren, 679. Fraction of time, 290. Franchises, 301, G70, Frankalmoign, 231, 252. Frankmarriage, 251, 352. Frankpledge, 129. Frank tenement, 192, 235. Frauds, statute of, 434, 502, 51G, 521,525,526. Fraudulent devises, statute of,434. Freebench, 634. Free fishery, 679, 6S0. services, 191. socage, 192, 193, 209. warren, 678. Freehold, 215, 235, 236, n. customary,"22S. estate, 235. by wrong, 518. in abeyance, 2 12. in futuro, 327, 552. in law, 432. remainder, 330. Futuro, estates in, 318, 327. G. Gage, estates in, 310. Game, 164, 674. Gavelkind, 55, 215, 217. General Inclosure Act, (41 Geo. III. c. 107), G63. Vestry Act, 121. Gia of lands, 518. Gilbert, Chief Baron, 53. Glanville, 52. Glebae ascriptitii, 193. Good consideration, 505. Goods and chattels, 286. Government, forms of, 31. origin of, 30. Governor-general of India in coun- cil, 114, 118, b. Grand coustumier of Normandy, 46, n., 103. seijcanty, 205, 215. Grant at common law, 519. lying in, 520. royal, 625—629. to uses, 539, 547. Grantee of reversion, 307, 524. Gratian's decree, 65. Great Britain defined by Act of Union, 89. Great Britain and Ireland, popula- tion of, 138, n. Great charter, 69, 189, 206. seal, 627. Gregorius, 63. Gregoi'y's decretals, 65. Gross, common in, 660. villein in, 221, 224. Guardian in chivalry, 196. in copyhold, 226. in socage, 212. Guernsey, island of, 103. H. Habeas corpus, 150. suspension of, 151. Habendum of a deed, 492. Habitations, property in, 159. Hsereditas jacens, 454. nunquam ascendit, former maxim of, 413. Hale, Sir Matthew, 53. Half blood, 422. former exclusion of, in England, 422. new rule as to, 427. Hamlet, 129. Hares, beasts of warren, 679. Hawkins, Pleas of the Crown, 53. Hay bote, 262, 293. INDEX. 723 Headborough, 127. Health, injuries affecting, 149. Hedge bote, 2G2, 293. Heir, 237, 250. apparent, 392. a word of limitation, 242. entry of, 432, 515. inability to be one, 438. liable to ancestor's debts, 434. limitation to, 403, 404. limitation to, or to heirs of the body, 339, 428. of the bod}', 250 — see En- tails. presumptive, 392. where he takes by purchase, 403, 404, 428. Hereditament, meaning of, 175. corporeal, ib. incorporeal, ih., 655. Heriots, 220, 226, 635, 636. Hermogenes, 63. High constable, 129. seas, 119. Highways, 667. Hobart's Reports, 52. Hobhouse's Act, 125. Holding over by a tenant, 300 — 302. Homage, ISl. the, in copyhold, 643. Honorary feuds, 184. Honor, (or seigniory over several manors,) 220, Hotchpot, 353. House bote, 262, 293. Human laws, obligation of, 39. Hundred, compensation by the, J 30, n. division of counties into, 129. I. Idiots, conveyances by, 480. devise" by, 601, 603. Illegal conditions, 308. consideration, 506. Illusory appointments, 557, n. Immediate descent, 421, 444. Immemorial usage, 46, 693. Impartible, things which are, 355. Impeachment of waste, 263. Imperial constitutions, 64. Implied condition, 303. covenants, 498, n. trusts, 378. uses, 365. warranty, 495. Impossible condition, 308. Imprisonment, illegal, 149. Improper feuds, 185. In alieno solo, profit, 692. Incident, 320, n. Incidents to reversions, 320. Inclosure Acts, 663, 664, 664, n. commissioners, 665. of common, 663. Incorporeal hereditaments, 1 75, 665 — 703 appendant or ap- purtenant, or in gross, 688. are tenements, 689. extinction of, 700. how conveyed, 691. Indenture, 488. Indentures of a fine, 570. India, 112. Acts relating to, 117. destitute natives of, in this country, 116, n. Indian bishops, 114. Induction to a benefice, 515. Infants, conveyances by and to, 481. devise by, 601, 002. Inheritable blood, 440. Inheritance, canons of, 394 — 427. collateral, 420. copyhold of, 633. estates of, 237. origin of, 166. Injunction, S3. A 2 724 INDEX. Injury, civil, 142. Initiate, tenant by curtesy, 270. Innocent conveyances, 559. Inns of Cliancery, 17, 19. of Court, ib. In pais, matter, 511. Inofficious will, 604, n. In pari materia, statutes, 78. Inquisitio post mortem, 197. Inrolment of bargain and sale, 5 13. Insane persons, conveyances by and to, 480. Instalment in dignities, 515. Institutes of Justinian, 63, 64. of Sir E. Coke, 53. Interesse termini, 293, 522, 528. Interested witnesses to will, 607. Interlineation of a deed, 505. Interpretation of statutes, 72. Investiture, antient, of land, 514, 620. Ionian Islands, Acts relating to, 108, n. Ireland, 94. Act of Union, 99. population of, 138, n. Islands, adjacent to Great Britain, "103. rising of, in the sea or a river, 457. Isleof Man, 101. Isle of Wight, 101. Issue, 250. dying without, words of, in a devise, 616. of the purcliaser, failure of, 412. Jersey, island of, 103. John, king, 189. Joint tenancy, 344. how dissolved, 349. Jointure, 278, 369. Judges, the depositories of the law, 48. Judgment, elegit upon, 257, 316, 317, n. registration of, 257, n. Judicial separation, effect of on dower, 273. Juris, scintilla, 372, n. Jus accrescendi, 348. ad rem, 515. in re, ib. fiduciarium, 362. precarium, 361. Justinian, laws of, 11, 63, 64. K. King, grant by, 625 — 629. King's College, London, 21, n. King's silver, 569. Knighthood, 208. Knight of the shire, 132. service, 192, 209. Knight's fee, 194. L. Labour, how far the right of property founded upon, 162, 163. Lancaster, comity palatine of, 133. Land, its legal signification, 173, 395, n. devisable before the Con- quest, 168, 599. holden of the crown, medi- ately or immediately, 237. origin of property in, 162. Registry Act, 702 et seq. Land tax, origin of, 207. Lands Clauses Consolidation Act, 170, n. Lapsed devise, 613, 614. Latent ambiguity, 508. Lathes in Kent, 131. Law, canon, 8, 12, 65. civil, 63. INDEX. 725 Law, common, 10, 41, 47. divine, 24. feudal, 177. freehold in, 432. merchant, 56. municipal, 26, 35. of nations, 25. of nature, 22. of revelation, 24. Roman, 63. statute, 69. study of the, 1 — 21. unwritten, 41, 69. written, 69,81. Lawful conveyances, 559, n. Laws in general, 22, 40. of England, 41, 81. of Justinian, 63, 64. Leading uses of fine or recovery, 574, 582. Leap year, 288. Lease, 289, 293, 521. and release, 539, 544. by deed, 293. by husband, 294, n. by tenant by the curtesy, 272. by tenant in dower, 285. by tenant for life, 258. by tenant in tail, ib. college, 478. ecclesiastical, ib. in future, 522. in writing, 293. long, 291. operative words in, 523. practice as to preparing, 491, n. Leasing powers, 556. Lectures, law, 20. Legal and equitable estates, 235, 314. education, 20. estate, 314,376. transfer of, by order of Court of Chan- cery, 380, memory, 58, 694. Legatine constitutions, 66. Leges scriptae, 69. Legislative and executive powers, 32. Le grand coustumier, 46, n., 103. Letter of statute, no rule for con- struction, 74. Letters-patent, 625. Levant and couchant, 661, 688. Levinz's Reports, 52. Levying money without consent of parliament, 170. Lex mercatoria, 56. non scripta, 41 — 69. scripta, 69 — 81. Liber judicialis of Alfred, 43. Liberi socmanni, 211. Liberties and franchises, 670. Libei-ty, personal, 149. Liberum maritagium, 251. tenementum, 235^ Licence of alienation, 208. in mortmain, 460. revocable, 235. Licentia concordandi, 568, Life, 143, 147. estates for, 260. forfeiture of, for crime, 147. Light, 164, 669. Lights, abandonment of, 701. Limbs, defence of, 144. Limitation as to prescription, 697. conditional, 305. to uses, 364, 537, 558. Lineal ancestors admitted to de- scent, 414. warranty, 496. Littleton's tenures, 53. Livery in deed, 517. in law, ib., 518. lying in, 520. of seisin, 181, 194, 230, 287, 308, 514. or ousterlemain, 196. Local Iticlosure Acts, 663. and personal Acts, 71. customs, 51, 55. ta.xes, 123. London, customs of, 56. 726 INDEX. Lord and vassal, 179. feudal, ib. Lordships, 220. Lord Worsley's Act, GG4. Lunar month, 2S9. Lunatics, conveyances by and to, 480. Lying in grant or in livery, 520, G91. Lyndewoode's Provinciale, GO, n. M. Madmen — see Lunatics. INIadras, bishop of, 115. Magna Charta, 69, 189, 201, 20G. IVIala in se, 39. Male preferred to female in de- scents, 405, 415. Man, bishop of, 120. island of, 101. Manchester, bishop of, 120, n. Manors, 219, 225. ^Manumission of villeins, 222. Marcheta, 216. Maritagium, 198,212. Mark, signing deed by a, 501. Market, fair and ferry, 671. towns, 128. Marriage in chivalry, 198. in socage, 212. settlement, 337. Married women — see Feme Co- vert. Mayhem, 144. Medical jurisprudence, 8. Memory, time of legal, 58, 694. Menaces — see Threats. IVIercen-lage, 43. Merchant, law, 56. statute, 314. Merchants, custom of, 56. :Mercheta, 216. Merger, 022, 382. of a simple contract in a deed, 488. Merton, statute of, 662. Mesne (or middle) lords, 191. Middlesex, registration of convey- ances in, 621. Military courts, 67. feuds, 193, tenures, i6., 209. Minas, duress per, 145. Mirrour, The, 52. Miscarriage, procuring, 143. Misuser, forfeiture for, 701. Mitter le droit, 529. Testate, ib. Mixed government, 32, 33. Modus levandi fines (18 Edw. L) 568. Monarchy, 32. Monk, 146. Monmouth, county of, 87. Monster, cannot be heir, 440. Month, calendar, 289. lunar, ib. Mortgagee out of possession, 312. Mortgage, 310, equitable, 310, n. Mortmain, 362, 459. relaxation of, 465. Mortuo vadio, estate in, 310. Mother churches, 121. Moveables, property in, 159. right of disposing by will, 168. Mulier puisne, 441. Municipal corporations, 128. law, 26, 35. Mutual conveyances, 525. N. Nations, law of, 25. Nativi, 222. Natural affection, consideration of, 541. liberty, 149. life, 147, 262. INDEX. 727 Naturalization, 138, 443. Nature, law of, 22. Navigable rivers, 679. Ne exeat regno, writ of, 152, Negro slavery, 110. Nemo est hseres viventis, 392. Neife, 223. Nephew preferred to uncle in de- scent, 411. New Brunswick, acts relating to, 108, n. Newfoundland, acts relating to, ib. New South Wales, acts relating to, ib. New Zealand, acts relating to, ib. Non-claim, bar by, 574. Non compos — see Lunatics. feoffment by one, 489. Non obstante clause, 465. Non-user, forfeiture for, 701. Norman Conquest, 390. jurisprudence, 45, 46. Normandy, one of the sources of our common law, ib. Norfolk Island, acts relating to, 108, n. Note of a fine, 569. Notice to pay off mortgage, 311, n. quit, 297, 298. • Nova statuta, 69, n. Novels ill the civil law, 63. O. Oath of fealty, 181. Obligation of human laws, 39. Occupancy, colonies gained by, titleby, 163, 453, 691. Operation of statute, 73. Origin of common law, 45. of equity, 82. of property, 160. Original deed, 439. Ostium ecclesia?, dower ad, 276, 283. Ousterlemain, 196. Outstanding terms, 384. Pais, conveyances in, 511. matter in, ib. Palatine counties, 133. Palmer, Sir Geoffrey, 337. Pandects, 11, n., 64. Papirius, 63. Paramount, lord, 191. Paravail, tenant, 191. Parceners, 351. Pares curtis, 270. Parish, 1 20. origin of, 122. meeting, 124, n, offices, ib. Park, 678. Particular customs, 54. estate, 319. tenant, alienation by, 468. Parties to a deed, 491. to a fine, 572. Partition, deed of, 526. of coparcenary, 354. of joint tenancy, 349. of tenancy in common, 359. Partnerships, managed by equity courts, 83. Partridge, a fowl of warren, 679. Passive trusts, 376. Pasture, common of, 658. Patent ambiguity, 508. letters, 025. rolls, 626. Paternal line preferred to maternal, in descent, 415, 417. Pecuniary consideration of bargain and sale, 542. only matter of form, 514. 728 INDEX. Peers for Scotland, 90. Ireland, 100. Penal servitude, 153, n. statutes, 71. Pensions, G5G, 6')7, n. Per capita, 410. Permissive waste, 263, 203, n., 206, 299. Per my et per tout, 346. Perpetuity, doctrine of, 475, n., 560, 562. Personal acts of parliament, 71. annuity, 305. bequest, 599. chattels, 287. estate, 172, n., 281. liberty, right of, 143. rights, 140, 142. security, right of, 143, things, 172. Per stirpes, 409. Petition of right, 150, 171. Petit serjeanty, 215. Pheasant, a fowl of warren, 679. Pickage, 672. Piscary, common of, 661. Playgrounds, public, 465. Pledge, estates in, 303, 310. Plenum dominium, 514. Ploughbote, 262, 293. Ploughland, 193. Plowden's Reports, 52. Poll, deed, 489. Poor rate, 123. laws, ib., 145. Population of Great Britain and Ireland, 138, n. Portland, isle of, 101. Possessio fratris, 424. Possession, estates in, 318. naked, 319. of premises held over, 301. right of, 158. Possessions, colonial, 103. Possibility, 234, 333. common, 333. double, ib. of reverter, 248, 320, n. remote, 333. upon a possibility, ib. Post fine, 569. Posthumous child, 144, 336. descent, 415. Potentia propinqua, 333. remota, ib. Power (mere) not an estate, 234. to appoint lands, where ex- ecuted by devise of them, 557, n. Powers, 234, 555. of revocation and new ap- pointment, 555. Poynings' Laws, 96. Practice among conveyancers, as to preparation of deeds, 491, n. Praecipe in a recovery, 576. in a fine, 568. tenant to the, 578. Praemunire, 153. Preetor, 63. fidei commissarius, 362. Precedent condition, 309. Premises of a deed, 491. Prescription at common law, 693. by statute, 697. in a que estate, 696. Presentment by the homage, 652. Presidencies, Indian, 114. Presumptive heir, 392. Primaria ecclesia, 122. Primary or derivative conveyances, 526. Primer fine, 568. seisin, 197, 203. Primogeniture, 406. Prince of Wales, 86. Private acts of parliament, 70, 622, 625. interest how far sacrificed to public, 170. INDEX. 729 Private relations, rights in, 140. rivers, 679. ways, 6G7. Privies to a fine, 572. Privileged villenage, 192, 228. Privity of estate, 528. Privy purse, 629. seal, 626. Proclamations, fine with, 570, 573. Production of cestuisque vies, 342. Profession, monkish, 146. Profits in alieno solo, 692. Prohibition to leave the realm, 152. Promulgation of laws, 28. Proper feuds, 185. Property, origin of, 156 — 164. personal, 172. real, ib. rights of, 140, 142. violation of, for public benefit, 170. Protector of the settlement, 257, 584, 586. Prothonotaries, 5 1 . Province of an archbishop, 119. Provincial constitutions, 66. Proviso for re-entry, 524. Public act of parliament, 70. good, sacrifice of private in- terests to, 170. rights, 140, 142. rivers, 679. ways, 667. Publication of will, 604. Punishment, capital, 147. Pur autre vie, tenant, 260, 453, 681. Purchase, title by, 339, 388, 389. Purchaser, blood of the, 396. by his own conveyance, 403, 404, 550. descent from the, 394. meaning of term, 389, 394. quasi, 428, 429, 433, 439. Pine villenage, 192. Purlieus, 676. Q. Qualified fees, 244. Quarantine, the widow's, 277. Quasi entail, 455. purchaser, 428, 429, 433, 439. Quebec, acts relating to, 108, n. Queen, description of, in her claim of the allegiance of India, 116. Queen's land, Act relating to, 108, n. Que estate, prescribing in, 696. Quia emptores, statute of, 204, n. 232,239, 277, 310, 316, 474, 685. Quick with child, 143. Quiet enjoyment, 498. Quit rents, 635. R. Rabbits, beasts of warren, 679. Rack rents, 685. Rapes, divisions of, in Sussex, 131, Rasure in a deed, 505. Rate, county, 133. Readers of the Inns of Court, 20. Reading of deeds, 500. Real chattels, 172, n., 286, 287. estate, 287. property, law of, new Act respecting (8 Sr. 9 Vict. c. 106), 322, 338, 482, 486, 491, 495, 517, 519, 522, 525, 526. repealed Act to sim- plify (7 Si 8 Vict. c. 76) . . 316, n. statutes to abridge language of deeds (8 & 9 Vict. c. 119,121). .491, n. to facilitate proof of title to, and coii- veynnce of, 702. 730 INDEX. Real property, to obtain a declara- tion of title to, 705. things, 172, 2SG. Realm, prohibition to leave the, 152. Realty, 172. Reasonable fine, in copyholds, 227. Receiver under a mortgage, 313, n. Recitals in a deed, 492. Recognizance, in nature of statute staple, 315. Record, 48. conveyances by, 512, G22. estoppel by, 488, n. office, public, 47, n. Recoverce, 577. Recoveror, ib. Recovery, common, 253, 462, 576. abolished, 256, 567. former force of a, 580, 581 — see Fine. Recreation grounds, 467, n. Reddendum of a deed, 493. Redeem, bill to, 312, Redemption, equity of, 311. Reditus albi, 685. capitales, ib. nigri, ib. quieti, ib. siccus, 683. Re-entry for breach of condition or covenant, 305, 524. Reeves's History of the English law, 52, n. Regardant, villeins, 221. Regiam majestatem, 88, n. Registration of conveyances, 621. of title, 702. Regno, ne exeat, 152. Release, eflectual as a lease and re- lease, 547. extinction of incorporeal hereditaments by, 700. in the sense of discharge or renunciation, 507, 527, n., 670, n. of lands, 527. Relief, feudal, 182. Relief, in copyhold, 227. in knight service, 202. in socage, 213. Religious houses, 362. Remainder, 318. cannot be limited on fee simple, 326. contingent, 330, 339, cross, 358. definition of, 324. displacement of, 330. estate in, 318. executed, 330. executory, ib, freehold, ib. how it differs from a reversion, 326. rules for the creation of a, 328. vested, 330. when curtesy and dow- er may be claimed in, 33. Remedial part of law, 36, 37. statutes, 71. Rent, 681. apportionment of, 687. charge, 083, 683, n. chief, 684. double, 300. fee farm, 685. incident to reversion, 321. of assize, 635, 684. origin of, 185. quit, 635, 684. rack, 685. seek, 683, 684. service, 682. when and where due, 686. Repeal of acts not in force, 69, n. statutes, generally, 69, 79. Reports, law, 50, 51, n. Representation in descents, 409. Representative assembl}', 105. Republication of will, 606. Repugnant clauses in a deed, 509. condition, 308. Reputation, security of, 149. Requisites of deed, 489. llere-fiefs, 185. Reservation of rent, 692. INDEX. 731 Residuary devise, G15. Responsa prudentum, 63. Restraining and enlarging statutes, 72. Restraints of alienation, 475, Resulting trust, 378. use, 365, 549. Revealed law, 35. Reversion, 319, definition of, ib. displacement of, 322, estate in, 318. freehold, 321. grantee of, his rights, 307. how it differs from a remainder, 326. incidents to, 320. Revertei-, possibility of, 320, n. Revision of statute law, Act for, 69, n. Revival of Act, 80, 81. of will, 606, n,, 609. Revocation of a will, 604, 608. of uses, 555. Ridings, 131. Right close, writ of, 229. of common, 658. of entry, 307, 319, 338. of way, 667. of possession, 158, 319. Rights, 30, 1 10. in private relations, 140, 142. of property, 140. personal, 140, 142. public, 142. Rivers, 679. Ripon, bishop of, 120, n. RoUe's Abridgment, 53. Roman law, 63. Root of descent, 399, 401. Royal grants, 625—629. Rule in Shelley's case, 339. Running with the land, covenants, 498,523. Rural deanery, 120. St. German's " Doctor and Stu- dent," 53. St. Helena, 1 14. Sale by mortgagee, 313. of property, origin of, 165. of real property, practice on, 491, n. Sanction of laws, 36, 38. Sans nombre, common, 661. Sark, island of, 103. Satisfied terms, 385. Saunders's Reports, 52. Savouring of the realty, 287. Saxon laws, 41, 43, 45. Scintilla juris, 372, n. Scire facias at suit of crown, 629. Scotland, 88. law of, how ascertained, 92, n. Act of Union, 89. population of, 138, n. Scutage, 206. Sea, high, 119. dereliction or encroachment of, 457. shore, 119. Seal, great, 627. privy, 626. Sealing of deeds, 500. Seals, antiquity of, ib. Seek, rent, 683, 684. conveyances, 526. Secondary use, 554. Secretary of State for India, 116. See, bishop's, 128. Seigniory, 240. Seisin, 287, 401. livery of, 181, 194. primer, 197,203, 214. in law, 271. Seisina facit stipitem, 399, 402, 690. Select vestr}', 126, n. Self-dcfence^l47. INDEX. Senatus consulta, 70. decreta, ib. Sepoy revolt, 115. Serjeant-at-law, 17, 19. Serjeanty, grand, 205. petit, 215. Service, 185. de chivaler, 193. heriot, 636. in antient demesne, 228. in socage, 210. knight, 192, 193. villein, 221. Servitium militare, 193. Session, great, courts of, in Wales, 86. Settled Estates Act, 257, 258, 263, 272, 279, 285, 484, 640, n. Settlement, 258, n. Act of, (as to crown,) 118. family, 256, 337, 582, 585. protector of the, 257, 586. strict, 337. Several fishery, 680, n. Severalty, estates in, 343. Severance of jointure, 349. Shack, common of, 660. Shelley's case, rule in, 339, 382. Sheppard's Touchstone, 53. Sheriff, 131. in Wales, 87, n. Shifting use, 554. Shire, 131. Sierra Leone, 108, n. Signet, privy, 626. Signing of deeds, 500, 502. of wills, 600. Sign manual, 626. Slave trade, 110, Socage, 193. free, 209, meaning of the term, 21 O^n. villein, 192. Social contract, 30. Society, origin of civil, 29. Sodor and Man, bishop of, 120, n. Sokemans, 211, 230. Sole corporations, 362. Sovereign, grant by, 625. Special occupant, 456. pleader, 21. tail, 219. trusts, 375. Specialty debts, 434. Specific performance, 83. Spiritual tenure, 231. Springing use, 553. Stallage, 672. Stamp Acts, 490, n. Stamps on deeds, 490. Staple commodities, 315. mayor of the, 315. statute, 314. Statute, 69—81. dedonis, 247, 219. de mercatoribus, 316. de religiosis, 461. for transferring uses into possession, 370. law, revision of. Act for, i., 69, n. merchant, 303, 314. of uses, 370. of local and personal, 71. private and public, 70. quia emptores, 204,n., 232, 239,277,310,474,685. repealed, as to transfer of real property, 322, n. staple, 303, 314. when it begins to operate, 73. Statutes relating to India, 117, n. Staundforde on criminal law, 53. Stint, common without, 661. Stipendiary estates, 178. Stirpes, succession per, 409. Stocks of descent, male and female, 415. Streams, 669. Strict settlement, 337. IXDEX. 733 Studentships of law, 21, n. Study of the law, 1—21. Sturges Bourne's Act, 124. Stultifying oneself by pleading lu- nacy, 480. Subinfeudation, 178, 191, 239, 456. Subscription of witnesses to a deed, 503. to a will, 606. Subsequent condition, 304, 306. Subsisting terms, 386. Successors, 460. Sufferance, estate at, 299. Suffragan bishops, 119. Suit and service, 185. Superstitious uses, 466. Supreme power in a state, 30. Sur concessit, fine, 571. Sur don, grant et render, fine, 571. Surrender, 531. by operation of law, 532. must be by deed, 532. of copyhold, 642. of term outstanding, 384. of renewable leases, 532, 533. to the use of will, 647. Survivorship, 347, 356. Suspension of Habeas Corpus Act, 151. Syngrapha, 489. T. Tail — see Entails. Tasmania, acts relating to, 108, n. Taxes not to be imposed except by parliament, 170. Tenant, at sufferance, 299. at will, 295. by copy of court roll, 224. by elegit, 316. by the curtesy, 269. copyliold, 224. Tenant, for life, 262. lessees of, 265. for years, 291. from year to year, 297. holding over, remedies against, 300. in antient demesne, 228. in common, 355. in dower, 272. in fee, 238. in frankalmoign, 231. in tail, 247 — see Entails. joint, 344. pur autre vie, 260, 453. right, 230, n. to the prfficipe, 578. Tenements, incorporeal, 1 75, 655 — 703. meaning of the word, 174, 190. Tenendum of a deed, 492. Tenure, by cornage, 205. by divine service, 232. copyhold, 219, 631. customary, 228. different kindsof,l91, 193. in burgage, 215. in capite, 190, 209. in chivalry, 193. in frankalmoign, 231. in grand serjeanty, 205, 215. in petit serjeanty, 215. perfect and imperfect, 252, 262, 302. socage, 192, 209. villein, 192. Tenures, of, 177. Term of years, 291, 292. Termor, 291. Terms in trust to attend the inhe- ritance, 384. Testament, 167,596— see Devises. Testator, capacity to be, 602. Thanct, isle of, 101. Thellusson's Will case, 563, n. Theodosian code, 64. Things real, 172. personal, ib. 734 INDEX. Threats, 145. Tide flowing on bed of river, G80. Time, computation of, 288. Tithes, 121. Tithing, 127. Title, abstract of, 491, n., 49D, n. Act to facilitate proof of, 702. by act of law, 388, 390. by act of party, 389. by descent, 391—436. by escheat, 429. by purchase, 339, 389, 429, 552. for last sixty years, when to be shown, 491, n. in general, 387. of nobility, 408, 427. to corporeal hereditaments, 387. to crown — see King. Title to incorporeal hereditaments, G91. Tolls, G71. Tortious operation of a feoffment, 518. Torture, 148. Town, definition of, 128. Towns, number of, 129. corporate, 128. Training to arms, 154. Transfer of Land Act, 702. of property, origin of, 1G5. Act to sim- plify, 322. Transportation, 153. Treason, corruption of blood in, 451. forfeiture in, 204, 3G3, 381, 44G. Tribonian, G4. Trinoda necessitas, 232. Trithing, 131. Trust, cestui que, 377. estate, 376. how created, ib. meaning of the word, 378. of personal chattels, 377. Trustee Act, (1850). .380, 451. attainder of. 381. Trustee, capacity to bo, 366. conviction of, 381. dying intestate and with- out heir, 380. his estate in the land, 361, 379. Trustees, late statutable provisions with respect to, 380, 381, n. Trusts, 375. active, 374. cognizable in equity, 83, 375. curtesy in, 380, 382. declaration of, 378. dower in, 380, 382. escheat of, 381 . executory, 378. forfeiture of, 381. how they may be limited, 383. how they may be created or assigned, ib. implied, 378. in equity, 377. passive, 376. resulting, 378. special, 375. to attend inheritance, 384. to support contingent re- mainders, 337. Turbary, common of, 661. Twelve Tables of the Decemviri, 63. U. Uncertain services, 192. Uncle and nephew, former question between, in descents, 411. Uninhabited country, colonizing, 104. Union of Ireland, 99. of Scotland, 89, Unity of title, 345, 356. University of Cambridge and Ox- ford, 9, 17, 21, 479, n. University College, London, 21, n. Usages of trade, 56. INDEX. 735 Use, cestui que, 364, 367. seisin to a, 365, 371. upon a use, 373. Uses and trusts, 360. charitable, 466. contingent, 368. conveyances under statute of, 537—564. covenant to stand seised to, 365. curtesy in, 367. dower in, ib. executory, 553, 554. feoffee to, 364. history and origin of, 360. implied, 365. in esse, 368. in futuro, ib. in possibility, ib. manner of creating, 364. nature of, 367. properties of, 368. reduplication of, 376. repugnant, 374. resulting, 365. secondary, 554. shifting, ib. springing, 553. statute of, 370. superstitious, 466. what is, capable of being held to, 364. what may be conveyed by, ib. what the statute executes, 370. who capable of holding to, 366. Usque filum aquas, 668. Usucapio, 692, n. Usus fructus, 361. Uterinus, frater, 426. V. Vacarius, Roger, 12. Vadium mortuum, 310. vivum, ib. Value of marriage, 199, 212. Valuable consideration, 505. Valuers, inclosiire, 666. Vancouver's island, 108, n. Van Diemen's land, acts relating to, 108, n. Vassal, 179. Vaughan's Reports, 52. Ventre sa mere, children in, 143. Vested remainder, 330. Vestry, 124. clerk, 126, n. Vetera statuta, 69, n. Vicecomes, 130. Vicinage, common because of, 661. Victoria, acts relating to colony of, 108, n. Vill, 129. Villanum socagium, 229. Villein, 220. in gross, 221. regardant, ib. services, 193. socage, 193, 228. Villenage, 192. privileged, 193. pure, ib. Vindicatory sanction of laws, 38. Viner's Abridgment, 53. Vivo vadio, estate in, 310. Void and voidable, 480. Voluntary conveyance, 506. waste, 263, 295, 299. Volunteers, 155, n. Voting at vestries, 125. Vouchee, common, 577. Voucher in recoveries, 577. W. Waiver of condition, 309, Wales, 85. members for, 88. Prince of, 86. Wapentakes, 129. Wardholding, 208, n. Wards and liveries, court of, 197. 736 IXDEX. Waidbliip in chivalry, 195. in copyholds, 22G. in socage, 211. Warrant, arrest by, 152. Warranty of lands, 495. Warren, fowls of, G79. free, 678. Waste of a manor, 220, 646, 658. grant of portion of, 64G. inclosure of, 664, 666. permissive, 263, 29.3, n. in tenant at will, 295, in copyholds, 634. in tenant for life, 262. in tenant for years, 293. voluntary, 263. without impeachment of, ib. year, day and, 447, 448. Water, 160, 173, 668, 701. Watercourse, 668, 701. Ways, right of, 667. West Indies, 110. Westminster, formerly a bishop's see, 128, n. West-Saxon lage, 43. White rents, 685. Whole blood, 422. Wight, Isle of, 101. Will, estates at, 295. of the lord, 221, 632. or testament, 596 — See De- vise. Witnesses to a deed, 504. to a will, 604, 606, n. 607. Worthiest of blood, 405. Writ, close, 626. of elegit, 316. of ne exeat regno, 152. Written conveyances, 516. Wrongs, 140. Year and a day in fines, 573. day and waste, 447, 448. forfeiture of lands for, 447. legal meaning of, 288. to year, tenancies from, 297. tenancy by the, ib. Year-books, 51. Yearly tenancy, 297. Years, estates for, 288. Yelvcrton"s Reports, 52, Yorkshire, registration of deeds in, 621. LONDON: PRINTED BY C. RO WORTH AND SOTS, BELL YARH. tf.mplf. bar! SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES AA 000 838 887 8 '%